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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
August 7, 2024
BORGWARNER INC.
(Exact name of registrant as specified in its charter)
Delaware |
|
1-12162 |
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13-3404508 |
(State
or other jurisdiction of |
|
(Commission
File No.) |
|
(I.R.S. Employer |
incorporation
or organization) |
|
|
|
Identification No.) |
3850 Hamlin Road, |
Auburn Hills, |
Michigan |
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48326 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (248) 754-9200
(Former name or former address, if changed since
last report)
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:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on
which registered |
Common Stock, par value $0.01 per share |
|
BWA |
|
New York Stock Exchange |
1.00% Senior Notes due 2031 |
|
BWA31 |
|
New York Stock Exchange |
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 August 7, 2024, BorgWarner
Inc. (“BorgWarner” or the “Company”) executed an Underwriting Agreement, dated August 7, 2024, between the
Company and BofA Securities, Inc., Citigroup Global Markets Inc. and Wells Fargo Securities, LLC, each acting on behalf of itself
and the several underwriters named therein (the “Underwriters”), pursuant to which the Company agreed to sell, and subject
to the terms set forth therein, the Underwriters agreed to purchase $500 million aggregate principal amount of its 4.950% Senior Notes
due 2029 (the “2029 Notes”) and $500 million aggregate principal amount of its 5.400% Senior Notes due 2034 (the “2034
Notes” and, together with the 2029 Notes, the “Notes”).
The Notes are governed by
an indenture, dated September 23, 1999, between the Company and The Bank of New York Mellon Trust Company, N.A. (as successor in
interest to Chase Manhattan Trust company, National Association), as trustee (the “Base Indenture”), as supplemented by a
Ninth Supplemental Indenture, that will be dated as of the date of the original issuance of the Notes (the “Ninth Supplemental Indenture”
and, together with the Base Indenture, the “Indenture”), between the Company and Deutsche Bank Trust Company Americas, as
trustee for the Notes. Pursuant to the Indenture, interest on the Notes will accrue at a rate of 4.950% per annum, in the case of the
2029 Notes, and 5.400% per annum, in the case of the 2034 Notes, on the principal amount, payable semi-annually in arrears on February 15
and August 15 of each year, beginning on February 15, 2025. The 2029 Notes will mature on August 15, 2029, unless redeemed
prior thereto, and the 2034 Notes will mature on August 15, 2034, unless redeemed prior thereto.
The Company may redeem the
Notes at its option at any time, in whole or from time to time in part. If the redemption of the 2029 Notes occurs at any time prior to
July 15, 2029 (the “2029 Notes Par Call Date”) or the redemption of the 2034 Notes occurs at any time prior to May 15,
2034 (the “2034 Notes Par Call Date”), then the redemption price will equal the greater of: (1)(a) the sum of the present
values of the remaining scheduled payments of principal and interest on such Notes discounted to the redemption date (assuming the 2029
Notes matured on the 2029 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 20 basis points, in the case of the 2029 Notes, or plus 25 basis points, in the case of the 2034 Notes, less (b) interest
accrued to the redemption date on the Notes being redeemed, and (2) 100% of the principal amount of the Notes being redeemed, plus
in either case, accrued and unpaid interest on such Notes, to, but excluding, the redemption date. If the Company redeems the 2029 Notes
on or after the 2029 Notes Par Call Date or the 2034 Notes on or after the 2034 Notes Par Call Date, the redemption price will equal 100%
of the principal amount of the Notes being redeemed plus accrued and unpaid interest on such Notes to, but excluding, the redemption date.
If a change of control repurchase
event (as defined in the Indenture) occurs with respect to the Notes, unless the Company has exercised its right to redeem the Notes,
the Company will make an offer to each holder of the Notes to repurchase all or any part (in minimum denominations of $2,000 and any integral
multiples of $1,000 in excess thereof) of that holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal
amount of such Notes repurchased plus unpaid interest, if any, accrued on such Notes to, but excluding, the repurchase date.
The Notes will be the Company’s
general unsecured and unsubordinated obligations and will rank equally in right of payment with all of its other existing and future unsecured
and unsubordinated obligations. The Notes will be effectively subordinated to any of the Company’s existing or future secured debt
to the extent of the value of the assets securing such debt and will be structurally subordinated to all existing and future liabilities
and any preferred equity of the Company’s subsidiaries.
The Indenture includes customary
events of default, including, among other things, payment default, covenant default, certain defaults under other indebtedness of the
Company or certain of its subsidiaries and bankruptcy, insolvency or reorganization affecting the Company or certain of its subsidiaries.
This description of the Indenture
is a summary and is qualified in its entirety by reference to the full text of the Base Indenture and the full text of the Ninth Supplemental
Indenture. A copy of the Base Indenture is filed as Exhibit 4.1, and the Company will file with the Securities and Exchange Commission
(the “SEC”) as an exhibit to a Current Report on Form 8-K the Ninth Supplemental Indenture after the completion of the
offering of the Notes.
The Company intends to use
the net proceeds from the sale of the Notes to repurchase
any and all of the Company’s 3.375% Senior Notes due March 15, 2025 and 5.000% Senior Notes due October 1, 2025 validly
tendered and accepted for purchase in tender offers the Company has commenced for such notes and to pay fees and expenses in connection
with the tender offers. Any remaining proceeds will be used for general corporate purposes.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
of a Registrant. |
The information
provided in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
The
offer and sale of the Notes were registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant
to a Registration Statement on Form S-3 (Registration No. 333-269858) (the “Registration Statement”), including
the prospectus constituting a part thereof, dated February 17, 2023, and the prospectus supplement, dated August 7, 2024, filed
by the Company with the SEC. The Company is filing certain exhibits as part of this Current Report on Form 8-K for purposes of the
Registration Statement.
Forward-Looking Statements
This Current
Report on Form 8-K may contain forward-looking statements as contemplated by the 1995 Private Securities Litigation Reform Act that
are based on management’s current outlook, expectations, estimates and projections. Words such as “anticipates,” “believes,”
“continues,” “could,” “designed,” “effect,” “estimates,” “evaluates,”
“expects,” “forecasts,” “goal,” “guidance,” “initiative,” “intends,”
“may,” “outlook,” “plans,” “potential,” “predicts,” “project,”
“pursue,” “seek,” “should ,” “target,” “when,” “will,” “would,”
and variations of such words and similar expressions are intended to identify such forward-looking statements. Further, all statements,
other than statements of historical fact, contained in this Current Report on Form 8-K regarding matters that we expect or anticipate
will or may occur in the future regarding our financial position, business strategy and measures to implement that strategy, including
changes to operations, competitive strengths, goals, expansion and growth of our business and operations, plans, references to future
success and other such matters, are forward-looking statements. All forward-looking statements are based on assumptions and analyses made
by us in light of our experience and our perception of historical trends, current conditions and expected future developments, as well
as other factors we believe are appropriate in the circumstances. Forward-looking statements are not guarantees of performance, and the
Company’s actual results may differ materially from those expressed, projected or implied in or by the forward-looking statements.
You should
not place undue reliance on these forward-looking statements, which speak only as of the date of this Current Report on Form 8-K.
Forward-looking statements are subject to risks and uncertainties, many of which are difficult to predict and generally beyond our control,
that could cause actual results to differ materially from those expressed, projected or implied in or by the forward-looking statements.
These risks and uncertainties, among others, include supply disruptions impacting us or our customers, commodity availability and pricing,
and an inability to achieve expected levels of recoverability in commercial negotiations with customers concerning these costs; competitive
challenges from existing and new competitors, including original equipment manufacturer (“OEM”) customers; the challenges
associated with rapidly changing technologies, particularly as they relate to electric vehicles, and our ability to innovate in response;
the difficulty in forecasting demand for electric vehicles and our electric vehicles revenue growth; potential disruptions in the global
economy caused by wars or other geopolitical conflicts; the ability to identify targets and consummate acquisitions on acceptable terms;
failure to realize the expected benefits of acquisitions on a timely basis; the possibility that our 2023 tax-free spin-off of our former
Fuel Systems and Aftermarket segments into a separate publicly traded company will not achieve its intended benefits; the failure to promptly
and effectively integrate acquired businesses; the potential for unknown or inestimable liabilities relating to the acquired businesses;
our dependence on automotive and truck production, which is highly cyclical and subject to disruptions; our reliance on major OEM customers;
impacts of any future strikes involving any of our OEM customers and any actions such OEM customers take in response; fluctuations in
interest rates and foreign currency exchange rates; our dependence on information systems; the uncertainty of the global economic environment;
the outcome of existing or any future legal proceedings, including litigation with respect to various claims, or governmental investigations,
including related litigation; future changes in laws and regulations, including, by way of example, taxes and tariffs, in the countries
in which we operate; impacts from any potential future acquisition or disposition transactions; and the other risks noted in reports that
we file with the SEC, including Item 1A, “Risk Factors,” in our most recently filed Annual Report on Form 10-K and/or
Quarterly Report on Form 10-Q. We do not undertake any obligation to update or announce publicly any updates to or revisions to any
of the forward-looking statements in this Current Report on Form 8-K to reflect any change in our expectations or any change in events,
conditions, circumstances, or assumptions underlying the statements.
| Item 9.01 | Financial Statements and Exhibits |
| (d) | Exhibits. The following
exhibits are being filed as part of this Current Report on Form 8-K. |
Exhibit
Number |
Description |
1.1 |
Underwriting Agreement, dated August 7, 2024, between the Company and BofA Securities, Inc., Citigroup Global Markets Inc. and Wells Fargo Securities, LLC, as Representatives of the several underwriters named therein. |
4.1 |
Indenture, dated September 23, 1999, between Borg-Warner Automotive, Inc. and The Bank of New York Mellon Trust Company, N.A. (successor in interest to Chase Manhattan Trust Company, National Association), as trustee (incorporated by reference to Exhibit No. 4.6 to the Company’s Registration Statement 333-172198 filed on February 11, 2011). |
5.1 |
Opinion of Foley & Lardner LLP. |
5.2 |
Consent of Foley & Lardner LLP (included in Exhibit 5.1 and incorporated by reference herein). |
104.1 |
The cover page from this Current Report on Form 8-K, formatted as Inline XBRL |
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.
|
BorgWarner Inc. |
|
|
|
Date: August 8, 2024 |
By: |
/s/ Tonit M. Calaway |
|
|
Name: Tonit M. Calaway |
|
|
Title: Executive Vice President and Secretary |
Exhibit 1.1
Execution Version
BORGWARNER INC.
$1,000,000,000
$500,000,000 4.950% SENIOR NOTES DUE 2029
$500,000,000 5.400% SENIOR NOTES DUE 2034
UNDERWRITING AGREEMENT
August 7, 2024
BofA Securities, Inc.
Citigroup Global Markets Inc.
Wells Fargo Securities, LLC
As Representatives of the several Underwriters
named in Schedule II hereto
c/o | BofA
Securities, Inc.
One Bryant Park
New York, New York 10036
Citigroup Global Markets
Inc.
388 Greenwich Street
New York, New York 10013
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
|
Ladies and Gentlemen:
BorgWarner Inc., a Delaware
corporation (the “Company”), proposes to issue and sell to the underwriters named in Schedule II hereto (the “Underwriters”),
for whom you are acting as representatives (the “Representatives”), $500,000,000 aggregate principal amount of its
4.950% Senior Notes due 2029 (the “2029 Notes”) and $500,000,000 aggregate principal amount of its 5.400% Senior Notes
due 2034 (the “2034 Notes” and, together with the 2029 Notes, the “Securities”) set forth in Schedule
I hereto, to be issued under the indenture specified in Schedule I hereto (the “Indenture”) between the Company and
the Trustee identified in such Schedule (the “Trustee”). If the firm or firms listed in Schedule II hereto include
only the Representatives listed in Schedule I hereto, then the terms “Underwriters” and “Representatives” as used
herein shall each be deemed to refer to such firm or firms. This Agreement, the Indenture and the Securities are referred to herein collectively
as the “Operative Documents.”
The Company has filed with
the Securities and Exchange Commission (the “Commission”) a registration statement, including a prospectus, (the file
number of which is set forth in Schedule I hereto) on Form S-3, relating to securities (the “Shelf Securities”),
including the Securities, to be issued from time to time by the Company. The registration statement as amended to 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 February 17, 2023
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 “Base Prospectus.”
The Base Prospectus, as supplemented
by the prospectus supplement 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), including the documents, if any, incorporated by reference therein, is hereinafter referred to as the “Prospectus,”
and 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 preliminary prospectus together with the free writing prospectuses each identified in Schedule I
hereto, and “broadly available 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.
The terms “supplement,”
“amendment,” and “amend” as used herein with respect to the Registration Statement, the Base Prospectus,
the Time of Sale Prospectus, any preliminary prospectus or free writing 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. The Company represents and warrants to and agrees with each of the Underwriters
that:
(a) The
Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission.
(b) (i) Each
document, if any, 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 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, 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 Sale (as defined below) in
connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in
Section 4), 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 broadly available 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
as of its date and, as amended or supplemented, if applicable, as of the Closing Date 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 (A) 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 the Representatives expressly for use therein or (B) that part of
the Registration Statement that constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”), of the Trustee. The term “Time of Sale” means 3:35 p.m. (New York
City time) on August 7, 2024, which is the first time when sales of the Securities are made by the Underwriters.
(c) The
Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement
as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration
Statement as an automatic shelf registration statement. The Company is not an “ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. 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 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 I hereto, and road
shows each furnished to the Representatives before first use, the Company has not prepared, used or referred to, and will not, without
the Representatives’ prior consent, prepare, use or refer to, any free writing prospectus.
(d) The
Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its property and to conduct its business as described in each of the Time of Sale Prospectus
and the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the business, property, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).
(e) Each
subsidiary of the Company has been duly incorporated or organized, is validly existing as a corporation or other legal entity in good
standing under the laws of the jurisdiction of its incorporation or organization, has the corporate or other power and authority to own
its property and to conduct its business as described in each of the Time of Sale Prospectus and the Prospectus, and is duly qualified
to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to be so incorporated, organized, qualified or be in good
standing would not have a Material Adverse Effect; all of the issued 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 and (except for minority interests
set forth in a schedule previously provided by the Company to the Underwriters) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(f) This
Agreement has been duly authorized, executed and delivered by the Company.
(g) The
authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Time of Sale
Prospectus and the Prospectus.
(h) The
Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, and on the Closing Date will be duly executed
and delivered by, and will be a valid and binding agreement of, the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability.
(i) The
Securities have been duly authorized and, 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 this Agreement, will be valid and binding obligations of the Company,
in each case enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general applicability, and will be entitled to the benefits of the Indenture.
(j) The
execution and delivery by the Company of, and the performance by the Company of its obligations under, each Operative Document will not
contravene any provision of applicable law or the certificate of incorporation or by-laws of the Company or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its
obligations under any Operative Document, except such as may be required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Securities.
(k) There
has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in
the Time of Sale Prospectus.
(l) There
are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately
described in all material respects in each of the Time of Sale Prospectus and the Prospectus, and proceedings that would not have a Material
Adverse Effect, (ii) that, individually or in the aggregate, could adversely affect the power or ability of the Company to perform
its obligations under any Operative Document or to consummate the transactions contemplated by the Prospectus or (iii) that are required
to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts
or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(m) Each
preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(n) The
Company is not, and after giving effect to the offering and sale of the Securities and the application of the net proceeds thereof as
described in the Time of Sale Prospectus and the Prospectus will not be, an “investment company” as such term is defined in
the Investment Company Act of 1940, as amended.
(o) The
Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals
or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have
a Material Adverse Effect.
(p) There
are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a Material Adverse
Effect.
(q) 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.
(r) The
statements set forth in each of the Time of Sale Prospectus and the Prospectus under the captions “Description of the Senior Notes”
and “Description of Debt Securities,” insofar as they purport to constitute a summary of the terms of the Indenture and the
Securities, fairly summarize such terms in all material respects.
(s) PricewaterhouseCoopers
LLP, which has audited the financial statements of the Company and its subsidiaries as of December 31, 2023 and December 31,
2022 and for each of the years in the three-year period ended December 31, 2023, and has audited the Company’s internal control
over financial reporting as of December 31, 2023, is the independent registered public accounting firm for the Company as required
by the Securities Act and the rules and regulations of the Commission thereunder.
(t) The
Company, in respect of itself and its subsidiaries, maintains a system of internal control over financial reporting (as such term is defined
in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the
Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with
accounting principles generally accepted in the United States of America. Except as disclosed in each of the Time of Sale Prospectus and
the Prospectus, the Company’s internal control over financial reporting was effective as of December 31, 2023 and the Company
is not aware of any material weaknesses in its internal control over financial reporting with respect to the Company and its subsidiaries.
(u) Except
as disclosed in the Time of Sale Prospectus and in the Prospectus, since the date of the latest audited financial statements included
or incorporated by reference in the Time of Sale Prospectus or the Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting,
(v) The
Company and its subsidiaries maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the
Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure
that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer
and principal financial officer by others within those entities; and such disclosure controls and procedures were effective as of December 31,
2023.
(w) The
Company’s historical financial statements and the related notes thereto included or incorporated by reference in the Time of Sale
Prospectus and the Prospectus present fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries
as of the dates indicated and the consolidated results of their operations and the changes in their consolidated cash flows for the periods
specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby, except as described in the notes to such financial statements; and the other historical
financial information of the Company included or incorporated by reference in the Time of Sale Prospectus and the Prospectus has been
derived from the accounting records of the Company and its subsidiaries and presents fairly, in all material respects, the information
shown thereby.
(x) The
interactive data in the eXtensible Business Reporting Language (“XBRL”) 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.
(y) Neither
the Company nor any of its subsidiaries nor any director, officer, or employee of the Company or any of its subsidiaries nor, to the knowledge
of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that would result in a material violation by such persons of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations thereunder, as amended (the “FCPA”), or any applicable
law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
(the “OECD Anti-Bribery Convention”) or the U.K. Bribery Act 2010 (the “Bribery Act”), or any other
applicable anti-bribery or anti-corruption laws, including, without limitation, (i) using any funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity, (ii) making or taking an act in furtherance of an offer,
promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official
or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in
an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office,
or (iii) making, offering, agreeing, requesting or taking an act in furtherance of any unlawful bribe or other unlawful benefit,
including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company
and its subsidiaries and affiliates have conducted their businesses in compliance in all material respects with applicable anti=corruption
laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance
with such laws and with the representation and warranty contained herein.
(z) The
operations of the Company and its subsidiaries are and have been conducted at all times in compliance with all applicable financial recordkeeping
and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Bank Secrecy
Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of all jurisdictions where the Company and
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”), and no
action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(aa) (i)
Neither the Company nor any of its subsidiaries (collectively, the “Entity”) or, to the knowledge of the Entity, any
director, officer, employee, agent, affiliate or representative of the Entity, is an individual or entity (“Person”)
that is, or is owned or controlled by a Person that is:
(A) the
subject or the target of any sanctions administered or enforced by the U.S. Government (including, without limitation, the U.S. Department
of Treasury’s Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State and including, without
limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security
Council (“UNSC”), the European Union (“EU”), His Majesty’s Treasury (“HMT”),
or other relevant sanctions authority (collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions, including, without limitation, the so-called Donetsk
People’s Republic, the so-called Luhansk People’s Republic, the Crimea, Kherson and Zaporizhzhia Regions of Ukraine,
any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Belarus, Cuba, Iran, North Korea, Russia, Sudan
or Syria.
(ii) The
Entity represents and covenants that it 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 the subject of Sanctions; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).
(iii) The
Entity represents and covenants that it has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings
or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject
of Sanctions.
(bb) In
each case, to the knowledge of the Company, (i) the information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications and databases (collectively, “IT Systems”) used by the Company and its subsidiaries
are adequate for, and operate and perform in all material respects as required in connection with, the operation of the business of the
Company and its subsidiaries, taken as a whole, as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses,
time bombs, malware and other corruptants, (ii) the Company and its subsidiaries have implemented and maintained commercially reasonable
controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential
or regulated data (“Personal Data”)) used in connection with their businesses, and (iii) there have been no breaches,
violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability
or the duty to notify any other person. Except as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, the Company and its subsidiaries are currently in compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized
use, access, misappropriation or modification.
Any certificate signed by
any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Agreements
to Sell and Purchase. The Company hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from the Company the respective principal amounts of Securities set forth in Schedule II
hereto opposite its name at the purchase prices set forth in Schedule I hereto.
3. Public
Offering. The Company is advised by the Representatives that the Underwriters propose to make
a public offering of their respective portions of the Securities as soon after the Registration Statement and this Agreement have become
effective as in the Representatives’ judgment is advisable. The Company is further advised by the Representatives that the Securities
are to be offered to the public upon the terms set forth in the Prospectus.
4. Payment
and Delivery. The purchase prices specified in Schedule I hereto for all Securities to be purchased
as provided herein will be paid by the Representatives to the Company at 9:00 a.m., New York City time, on August 16, 2024, or at
such other time or place on the same or such other date as the Company and the Representatives may agree (the “Closing Date”),
with any transfer taxes payable in connection with the sale of the Securities to be duly paid by the Company, against the delivery, for
the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “Registered Global
Note”), duly executed and registered in the name of a nominee of The Depository Trust Company (“DTC”). The
Registered Global Note will be made available for inspection by the Representatives not later than 9:00 a.m., New York time, on the business
day prior to the Closing Date.
5. Conditions
to the Underwriters’ Obligations. The several obligations of the Underwriters are subject
to the following conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities
of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is
defined for purposes of Section 3(a)(62) under the Exchange Act; 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 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 the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ 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, dated the Closing Date and signed by an executive officer of the Company,
to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such Closing Date.
The officer signing and delivering
such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable
time period prescribed for such filing by the rules and regulations under the Securities Act; the final term sheet substantially
in the form of Schedule III hereto, and any material required to be filed by the Company pursuant to Rule 433 under the Securities
Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop
order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or, to the Company’s knowledge, threatened by the Commission and no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any issuer free writing
prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission
shall have been complied with to the Representatives’ reasonable satisfaction.
(d) The
Underwriters shall have received on the Closing Date an opinion of Foley & Lardner LLP, outside counsel for the Company, dated
the Closing Date, to the effect set forth in Exhibit A hereto.
(e) The
Underwriters shall have received on the Closing Date an opinion of the General Counsel or the Corporate Counsel of the Company, dated
the Closing Date, to the effect set forth in Exhibit B hereto.
(f) The
Underwriters shall have received on the Closing Date an opinion of Willkie Farr & Gallagher LLP, counsel for the Underwriters,
in form and substance satisfactory to the Underwriters.
The opinion of counsel for
the Company described in Section 5(d) above shall be rendered to the Underwriters at the request of the Company and shall
so state therein.
(g) The
Underwriters shall have received, on each of the date hereof and 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 PricewaterhouseCoopers LLP, independent public accounting
firm, 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
the date hereof.
(h) On
or prior to the Closing Date, the Securities shall be eligible for clearance and settlement through DTC.
(i) On
or prior to the date of this Agreement and on the Closing Date, the Company shall have furnished to the Representatives a certificate
of Craig D. Aaron, Executive Vice President and Chief Financial Officer of the Company, each in form and substance satisfactory to the
Underwriters.
6. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) To
furnish to the Representatives at their request, without charge, a signed copy of the Registration Statement (including exhibits thereto
and documents incorporated by reference) and to deliver to each of the Underwriters during the period mentioned in Section 6(e) or
6(f) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated therein by reference
therein and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives
a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives
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.
(c) To
furnish to the Representatives 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 use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(d) 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 a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have
been required to file thereunder.
(e) If
the Time of Sale Prospectus is being used to solicit offers to buy 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 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, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus
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 so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when 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.
(f) If,
during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under 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 thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus 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 the Representatives will furnish to the Company) to which Securities may have been sold by the Representatives on behalf
of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus 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) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with applicable law.
(g) To
endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request.
(h) To
make generally available to the Company’s security holders and the Representatives as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement
which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, 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 the filing fees payable to the Commission
relating to the Securities (within the time required by Rule 456(b)(1), if applicable), 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 cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale
of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale
under state securities laws as provided in Section 6(g) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or legal investment memorandum,
(iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review
and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (v) any fees charged by the rating
agencies for the rating of the Securities, (vi) the cost of the preparation, issuance and delivery of the Securities, including any
charges of DTC in connection therewith, (vii) the costs and charges of any trustee, transfer agent, registrar or depositary, (viii) the
costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the
marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination
of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives
and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (ix) 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, Section 8 entitled “Indemnity
and Contribution,” and the last paragraph of Section 10 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.
(j) If
the third anniversary (the “Renewal Deadline”) of the date of the filing of the Registration Statement occurs before
all the Securities have been sold by the Underwriters, the Company will, prior to the Renewal Deadline, file a new shelf registration
statement and 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 declared effective by the Commission.
(k) During
the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company or warrants to purchase or otherwise acquire debt securities of the Company substantially
similar to the Securities (other than (i) the Securities, (ii) commercial paper issued in the ordinary course of business or
(iii) securities or warrants permitted with the prior written consent of the Representatives identified in Schedule I with the authorization
to release this lock-up on behalf of the Underwriters).
(l) To
prepare a final term sheet relating to the offering of the Securities, containing only information that describes the final terms of the
Securities or the offering in a form as set forth in Schedule III hereto, and to file such final term sheet within the period required
by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of
the Securities.
(m) The
Company will not issue, without the prior written consent of the Representatives, on behalf of the Underwriters, any press release or
other public announcement referring specifically to the proposed issuance of, or the terms of, the Securities unless the announcement
adequately discloses that stabilizing action may take place in relation to the Securities (but only to the extent required by laws, regulators
or guidelines applicable to the Company, the Underwriters, the Representatives or any other entity undertaking stabilization in connection
with the issuance of the Securities) and the Company authorizes the Representatives to make all appropriate disclosure in relation to
stabilization instead of the Company.
(n) The
Company will cooperate with the Underwriters and use its reasonable best efforts to permit the Securities to be eligible for clearance
and settlement through DTC.
(o) The
Company will not use any portion of the proceeds of the offering, directly or indirectly, in violation of the FCPA, the OECD Anti-Bribery
Convention or the Bribery Act, or any similar law of any other relevant jurisdiction, or the rules or regulations thereunder.
7. 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 prepared
by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of
the Underwriter.
8. Indemnity
and Contribution. (a) The
Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of the Underwriters 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 any 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) caused by 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, 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, 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 caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (other than with respect to the Registration Statement, in the light of the circumstances
under which they were made) not misleading, except insofar as such losses, claims, damages or liabilities are caused by 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 the Representatives expressly for use therein.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives 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.
(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 8(a) or 8(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 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 the fees and expenses of more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing
by the Representatives authorized to appoint counsel under this Section set forth in Schedule I hereto, in the case of parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall
not be unreasonably withheld, 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. 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 8(a) or Section 8(b) is unavailable to an indemnified
party or insufficient in respect of any losses, claims, 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 Company on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause 8(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 8(d)(i) above but also the relative fault of the Company on the one hand and
of the Underwriters 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 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 bear to the aggregate initial public offering price of the Securities as set forth
in the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations
to contribute pursuant to this Section 8 are several in proportion to the respective principal amounts of Securities they
have purchased hereunder, and not joint.
(e) The
Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 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 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in Section 8(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 8, 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 11(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 8 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.
(f) The
indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements
of the Company 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, any person controlling any Underwriter or any
affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Securities.
9. Termination.
The Underwriters may terminate this Agreement, by notice given by the Representatives 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 NYSE, the NYSE MKT LLC, the Nasdaq Global Market, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or
in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United
States or with respect to Clearstream or Euroclear systems in Europe 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 the Representatives’ judgment, is material
and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the Representatives’ 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.
10. 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 aggregate 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 aggregate 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
II bears to the aggregate principal amount of Securities set forth opposite the names of all such non- defaulting Underwriters, or in
such other proportions as the Representatives 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 10 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 aggregate principal amount of Securities with respect
to which such default occurs is more than one-tenth of the aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to the Representatives 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 part of any non-defaulting Underwriter or the Company. In any such
case either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, 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 to comply with the terms
or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under
this Agreement the Company 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.
11. Recognition
of the U.S. Special Resolution Regimes. 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.
In the event that any Underwriter
that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent
than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the
United States or a state of the United States.
As used in this Section 11:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity”
means any of the following:
(i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“U.S. Special Resolution
Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title
II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
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 Underwriters 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 or any other person, (ii) the Underwriters owe the Company only those
duties and obligations set forth in this Agreement 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 waives to the full extent permitted
by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Securities.
13. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to any other party may be made by facsimile, electronic
mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§
301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
14. Applicable
Law. 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 the Representatives at the address set forth in Schedule I hereto; and if to the Company shall be delivered, mailed or sent
to the address set forth in Schedule I hereto.
* ** * * * ** * *
Please confirm your agreement
by signing a copy of this Underwriting Agreement in the space set forth below.
|
Very truly yours, |
|
|
|
BORGWARNER INC. |
|
|
|
By: |
/s/ Daniel R. Etue |
|
|
Daniel R. Etue |
|
|
Vice President and Treasurer |
[Signature
Page to Underwriting Agreement]
Accepted as of the date hereof |
|
|
|
BOFA SECURITIES, INC. |
|
|
|
By: |
/s/ Jon Klein |
|
|
Name: Jon Klein |
|
|
Title: Managing Director |
|
|
|
CITIGROUP
Global MARKETS Inc. |
|
|
|
By: |
/s/ Adam D. Bordner |
|
|
Name: Adam D. Bordner |
|
|
Title: Managing Director |
|
|
|
WELLS FARGO
SECURITIES, LLC |
|
|
|
By: |
/s/ Carolyn Hurley |
|
|
Name: Carolyn Hurley |
|
|
Title: Managing Director |
|
[Signature
Page to Underwriting Agreement]
SCHEDULE I
Representatives: |
BofA Securities, Inc.
Citigroup Global Markets Inc.
Wells Fargo Securities, LLC |
Representatives authorized to release the lock up Section 6(k): |
BofA Securities, Inc.
Citigroup Global Markets Inc.
Wells Fargo Securities, LLC |
Representatives authorized to appoint counsel Section 8(c): |
BofA Securities, Inc.
Citigroup Global Markets Inc.
Wells Fargo Securities, LLC |
Indenture: |
Indenture dated as of September 23, 1999 between the Company and the Trustee, as supplemented by the Ninth Supplemental Indenture, to be dated as of August 16, 2024, between the Company and the Trustee |
Trustee: |
Deutsche Bank Trust Company Americas |
Registration Statement File No.: |
Registration Statement on Form S-3 (No. 333-269858) |
Time of Sale Prospectus: |
Means collectively:
Prospectus dated February 17, 2023, relating to the Shelf Securities; |
|
The preliminary prospectus supplement dated August 7, 2024 relating
to the Securities
Term Sheet dated August 7, 2024 |
Securities to be purchased: |
$500,000,000 aggregate principal amount of 4.950% Senior Notes due 2029 (the “2029 Notes”) and $500,000,000 aggregate principal amount of 5.400% Senior Notes due 2034 (the “2034 Notes” and, together with the 2029 Notes, the “Notes”) |
Purchase Price: |
99.190% of the principal amount thereof, plus accrued interest, if any, from August 16, 2024, in the case of the 2029 Notes, and 98.817% of the principal amount thereof, plus accrued interest, if any, from August 16, 2024, in the case of the 2034 Notes |
Maturity: |
The 2029 Notes will mature on August 15, 2029 and the 2034 Notes will mature on August 15, 2034 |
Interest Rate: |
Interest on the Notes will accrue from August 16, 2024 at the rate of 4.950% per annum, in the case of the 2029 Notes, and 5.400% per annum, in the case of the 2034 Notes. |
Interest Payment Dates: |
Interest on the Notes will be payable semi-annually in arrears on February 15 and August 15 of each year, commencing February 15, 2025 |
Closing Date and Time: |
August 16, 2024 9:00 a.m., New York City time |
Closing Location: |
Willkie Farr & Gallagher LLP
300 North LaSalle Dr.
Chicago, IL 60654-3406 |
Address for Notices to Underwriters: |
BofA Securities, Inc.
114 West 47th Street
NY8-114-07-01
New York, New York 10036
Attention: High Grade Debt Capital Markets Transaction Management/Legal
Facsimile: (212) 901-7881
email: dg.hg_ua_notices@bofa.com
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attention: General Counsel
Facsimile: (646) 291-1469
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Attention: Transaction Management
Facsimile: (704) 410-0326
with a copy to:
Willkie Farr & Gallagher LLP
300 North LaSalle Dr.
Chicago, IL 60654-3406
Attention: Edward S. Best, Esq. |
Address for Notices to the Company: |
BorgWarner Inc.
3850 Hamlin Road
Auburn Hills, MI 48326
Attention: General Counsel
with a copy to:
Foley & Lardner LLP
777 E. Wisconsin Ave.
Milwaukee, Wisconsin 53202
Attention: Patrick G. Quick, Esq. |
Schedule
II
Underwriter | |
Principal
Amount of 2029
Notes | | |
Principal
Amount of
2034 Notes | |
BofA Securities, Inc. | |
$ | 125,000,000 | | |
$ | 125,000,000 | |
Citigroup Global Markets Inc. | |
$ | 125,000,000 | | |
$ | 125,000,000 | |
Wells Fargo Securities, LLC | |
$ | 125,000,000 | | |
$ | 125,000,000 | |
Barclays Capital Inc. | |
$ | 41,667,000 | | |
$ | 41,667,000 | |
Deutsche Bank Securities Inc. | |
$ | 41,667,000 | | |
$ | 41,667,000 | |
PNC Capital Markets LLC | |
$ | 41,666,000 | | |
$ | 41,666,000 | |
Total | |
$ | 500,000,000 | | |
$ | 500,000,000 | |
Schedule
III
Form of Final Term Sheet
Filed Pursuant to Rule 433
Registration No. 333-269858
Issuer Free Writing Prospectus dated August 7, 2024 relating
to
Preliminary Prospectus Supplement dated August 7, 2024
(To Prospectus dated February 17, 2023)
![](https://www.sec.gov/Archives/edgar/data/908255/000110465924087315/tm2415069d7_img001.jpg)
$1,000,000,000
$500,000,000 4.950% Senior Notes due 2029
$500,000,000 5.400% Senior Notes due 2034
Final Term Sheet
August 7, 2024
Issuer: |
BorgWarner Inc. |
Type of Offering: |
SEC registered (No. 333-269858) |
Anticipated Ratings:* |
Moody’s: Baa1 (Stable) / S&P: BBB (Stable) / Fitch: BBB+ (Stable) |
Joint Book-Running Managers:
|
BofA Securities, Inc.
Citigroup Global Markets Inc.
Wells Fargo Securities, LLC
Barclays Capital Inc.
Deutsche Bank Securities Inc.
PNC Capital Markets LLC |
Trade Date: |
August 7, 2024 |
|
|
Settlement Date:** |
August 16, 2024 (T+7) |
|
|
|
4.950% Senior Notes due 2029 (the “2029 Notes”) |
|
5.400% Senior Notes due 2034 (the “2034 Notes”) |
Principal Amount: |
$500,000,000 |
|
$500,000,000 |
Stated Maturity Date: |
August 15, 2029 |
|
August 15, 2034 |
Coupon (Interest Rate): |
4.950% per annum |
|
5.400% per annum |
Interest Payment Dates: |
Semi-annually on February 15 and August 15 of each year, commencing February 15, 2025 (short first coupon) |
|
Semi-annually on February 15 and August 15 of each year, commencing February 15, 2025 (short first coupon) |
Price to Public (Issue Price): |
99.790% |
|
99.467% |
Spread to Benchmark Treasury: |
+120 bps |
|
+150 bps |
Benchmark Treasury: |
UST 4.000% due July 31, 2029 |
|
UST 4.375% due May 15, 2034 |
Benchmark Treasury Price and Yield: |
100-29; 3.798% |
|
103-08; 3.970% |
Yield to Maturity: |
4.998% |
|
5.470% |
Make-Whole Call: |
Prior to July 15, 2029 (one month prior to the maturity date of
the 2029 Notes) (the “2029 Notes Par Call Date”), the Issuer may redeem the 2029 Notes, in whole at any time or in part at
any time and from time to time, at its option, 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 on the 2029 Notes being redeemed discounted to
the redemption date (assuming the 2029 Notes matured on the 2029 Notes Par Call Date) on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points, less (b) interest accrued on such 2029 Notes to the
redemption date, and
(2) 100%
of the aggregate principal amount of the 2029 Notes being redeemed on the redemption date,
plus, in either case, accrued and unpaid interest on the 2029 Notes
being redeemed to the redemption date. |
|
Prior to May 15, 2034 (three months prior to the maturity date
of the 2034 Notes) (the “2034 Notes Par Call Date”), the Issuer may redeem the 2034 Notes, in whole at any time or in part
at any time and from time to time, at its option, 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 on the 2034 Notes being redeemed discounted to
the redemption date (assuming the 2034 Notes matured on the 2034 Notes 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 on such 2034 Notes to the
redemption date, and
(2) 100%
of the aggregate principal amount of the 2034 Notes being redeemed on the redemption date,
plus, in either case, accrued and unpaid interest on the
2034 Notes being redeemed to the redemption date. |
Par Call: |
On and after July 15, 2029 (one month prior to the maturity date of the 2029 Notes), the Issuer may redeem the 2029 Notes, in whole at any time or in part at any time and from time to time, at its option, at a redemption price equal to 100% of the principal amount of the 2029 Notes being redeemed, plus accrued and unpaid interest on the principal amount being redeemed to, but excluding, the redemption date. |
|
On and after May 15, 2034 (three months prior to the maturity date of the 2034 Notes), the Issuer may redeem the 2034 Notes, in whole at any time or in part at any time and from time to time, at its option, at a redemption price equal to 100% of the principal amount of the 2034 Notes being redeemed, plus accrued and unpaid interest on the principal amount being redeemed to, but excluding, the redemption date. |
CUSIP / ISIN: |
099724AP1 / US099724AP1 6 |
|
099724AQ9 / US099724AQ98 |
*Note: None of these ratings is a recommendation
to buy, sell or hold these securities. Each rating may be subject to revision or withdrawal at any time, and should be evaluated independently
of any other rating.
**It is expected that delivery of the Senior
Notes will be made against payment therefor on or about August 16, 2024, which is the seventh business day following the date hereof
(such settlement cycle being referred to as “T+7”). Pursuant to Rule 15c6-1 under 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 Senior Notes prior to one business day before delivery of the Senior Notes will be required, by virtue
of the fact that the Senior Notes initially will settle in T+7, to specify an alternative settlement cycle at the time of any such trade
to prevent failed settlement and should consult their own advisors.
The issuer has filed a registration statement
including a prospectus and prospectus supplement with the SEC for the offering to which this communication relates. Before you invest,
you should read the prospectus and prospectus supplement in that registration statement and other documents the issuer has filed with
the SEC for more complete information about the issuer and this offering. You may obtain these documents for free by visiting EDGAR on
the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to
send you the prospectus and the prospectus supplement if you request them by calling BofA Securities, Inc. toll-free at 1-800-294-1322;
Citigroup Global Markets Inc. toll-free at 1-800-831-9146; or Wells Fargo Securities, LLC toll-free at 1-800-645-3751.
Any disclaimers or other notices that may appear
below are not applicable to this communication and should be disregarded. Such disclaimers were automatically generated as a result of
this communication being sent via email or another communication system.
Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/908255/000110465924087315/tm2415069d7_img002.jpg) |
ATTORNEYS AT LAW
777 E Wisconsin Ave Milwaukee, WI
53202-5306 414.271.2400 TEL 414.297.4900 FAX foley.com |
August 8, 2024
BorgWarner Inc.
3850 Hamlin Road
Auburn Hills, Michigan 48326
Ladies and Gentlemen:
We have acted as counsel for
BorgWarner Inc., a Delaware corporation (the “Company”), in conjunction with the preparation of a Registration Statement on
Form S-3 (Registration No. 333-269858) (the “Registration Statement”), including the prospectus constituting a part
thereof, dated February 17, 2023, and the prospectus supplement, dated August 7, 2024 (collectively, the “Prospectus”),
filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”),
relating to the issuance and sale by the Company in the manner set forth in the Registration Statement and the Prospectus of $500,000,000
aggregate principal amount of the Company’s 4.950% Senior Notes due 2029 (the “2029 Notes”) and $500,000,000 aggregate
principal amount of the Company’s 5.400% Senior Notes due 2034 (the “2034 Notes” and, together with the 2029 Notes,
the “Notes”). The Notes will be issued under the Indenture, dated September 23, 1999 (the “Indenture”), between
the Company and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to Chase Manhattan Trust Company, National Association),
as trustee, and a Ninth Supplemental Indenture, dated as of the date hereof (the “Supplemental Indenture”), between the Company
and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), establishing the terms and providing for the issuance
of the Notes.
In connection with our representation,
we have examined: (i) the Registration Statement, including the Prospectus; (ii) the Company’s Restated Certificate of
Incorporation and Amended and Restated By-laws, each as amended to date; (iii) the Indenture and the form of the Supplemental Indenture
(including the form of the Notes); (iv) resolutions of the Company’s Board of Directors relating to the authorization of the
issuance of the Notes subject to the Registration Statement; and (v) such other proceedings, documents and records as we have deemed
necessary to enable us to render this opinion.
In our examination of the above-referenced
documents, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted
to us as originals and the conformity with the originals of all documents submitted to us as copies.
AUSTIN | BOSTON | BRUSSELS |
CHICAGO | DALLAS | DENVER | DETROIT | HOUSTON | JACKSONVILLE | LOS ANGELES
MADISON | MEXICO CITY | MIAMI | MILWAUKEE | NEW YORK | ORLANDO | RALEIGH | SACRAMENTO | SALT LAKE CITY
SAN DIEGO | SAN FRANCISCO | SILICON VALLEY | TALLAHASSEE | TAMPA | TOKYO | WASHINGTON, D.C.
![](https://www.sec.gov/Archives/edgar/data/908255/000110465924087315/tm2415069d7_img003.jpg)
BorgWarner Inc.
August 8, 2024
Page 2
Based
upon the foregoing, assuming that the Supplemental Indenture, in the form examined by us, (i) will have been executed and delivered
by the Company and (ii) will have been duly authorized, executed and delivered by, and represent the valid and binding obligation
of, the Trustee, and having regard for such legal considerations as we deem relevant, we are of the opinion that the Notes, when executed,
authenticated and issued in accordance with the Indenture and the Supplemental Indenture and in the manner and for the consideration contemplated
by the Registration Statement and the Prospectus, will be legally issued and valid and binding obligations of the Company enforceable
against the Company in accordance with their terms.
The opinion above is subject
to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and
remedies of creditors generally, including, without limitation, the effect of statutory or other laws regarding fraudulent transfers or
preferential transfers, and (ii) general principles of equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies, regardless
of whether enforceability is considered in a proceeding in equity or at law.
We express no opinion as to
the laws of any jurisdiction other than the States of Delaware and New York and the federal laws of the United States of America.
We consent to the deemed incorporation
by reference of this opinion into the Registration Statement and the references to our firm therein. In giving our consent, we do not
admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons
whose consent is required by Section 7 of the Securities Act.
|
Very truly yours, |
|
|
|
/s/ Foley & Lardner
LLP |
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