SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 11)*
KEURIG DR PEPPER INC.
(Name of Issuer)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
49271V100
(CUSIP Number)
Joachim Creus
Piet Heinkade 55
Amsterdam, 1019 GM
The Netherlands
Tel.: +31 202 355 000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copies To:
Paul T. Schnell, Esq.
Sean C. Doyle, Esq.
Maxim O. Mayer-Cesiano, Esq.
Skadden, Arps, Slate, Meagher & Flom
LLP
One Manhattan West
New York, New York 10001
Tel.: (212) 735-3000
February 29, 2024
(Date of Event Which Requires Filing of This
Statement)
If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D,
and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
NOTE: Schedules
filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7
for other parties to whom copies are to be sent.
| * | The remainder of this cover page shall be filled out for
a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall
not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”)
or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ¨.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
JAB BevCo B.V. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) x |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (1) (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of common stock, par value $0.01 per share (“Common Stock”), of Keurig
Dr Pepper Inc. (“KDP”) that may be deemed to be beneficially owned by JAB BevCo B.V. (“JAB BevCo”),
before giving effect to the transactions described in Item 4.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024 as set forth in the Annual Report
on Form 10-K (the “Latest Periodic Report”), filed by KDP with the United States Securities and Exchange Commission
(the “Commission”) on February 22, 2024.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
Acorn Holdings B.V. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. Acorn Holdings
B.V. (“Acorn”) may be deemed to have beneficial ownership of such shares since JAB BevCo is an indirect subsidiary
of Acorn. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Acorn
that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Exchange
Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
JAB Coffee & Beverages Holdings 2 B.V. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. JAB Coffee &
Beverages Holdings 2 B.V. (“Holdings 2”) may be deemed to have beneficial ownership of such shares since JAB BevCo
is an indirect subsidiary of Holdings 2. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed
to constitute an admission by Holdings 2 that it is the beneficial owner of any of the common stock referred to herein for purposes of
Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
JAB Coffee & Beverages Holdings B.V. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. JAB Coffee &
Beverages Holdings B.V. (“Holdings”) may be deemed to have beneficial ownership of such shares since JAB BevCo is an
indirect subsidiary of Holdings. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute
an admission by Holdings that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of
the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
JAB Coffee & Beverages B.V. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. JAB Coffee &
Beverages B.V. (“JAB C&B”) may be deemed to have beneficial ownership of such shares since JAB BevCo is an indirect
subsidiary of JAB C&B. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute
an admission by JAB C&B that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of
the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
JAB Forest B.V. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. JAB Forest
B.V. (“Forest”) may be deemed to have beneficial ownership of such shares since JAB BevCo is an indirect subsidiary
of Forest. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by
Forest that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Exchange
Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
JAB Holdings B.V. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. JAB Holdings
B.V. (“JAB Holdings”) may be deemed to have beneficial ownership of the shares held by JAB BevCo since JAB BevCo is
an indirect subsidiary of JAB Holdings. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to
constitute an admission by JAB Holdings that it is the beneficial owner of any of the common stock held by JAB BevCo for purposes of Section 13(d) of
the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
JAB Investments S.à r.l. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. JAB Investments
S.à r.l. (“JAB Investments”) may be deemed to have beneficial ownership of such shares since JAB BevCo is an
indirect subsidiary of JAB Investments. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to
constitute an admission by JAB Investments that it is the beneficial owner of any of the common stock referred to herein for purposes
of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
JAB Holding Company S.à r.l. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2)(see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. JAB Holding
Company S.à r.l. (“JAB Holding Company”) may be deemed to have beneficial ownership of such shares since JAB
BevCo is a indirect subsidiary of JAB Holding Company. Neither the filing of this Statement on Schedule 13D nor any of its contents shall
be deemed to constitute an admission by JAB Holding Company that it is the beneficial owner of any of the common stock referred to herein
for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
|
|
1. |
|
NAMES OF REPORTING PERSONS:
Joh. A. Benckiser S.à r.l. |
|
|
2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
|
|
3. |
|
SEC USE ONLY
|
|
|
4. |
|
SOURCE OF FUNDS
N/A |
|
|
5. |
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
|
|
¨ |
6. |
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg |
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
|
9. SOLE DISPOSITIVE POWER |
None |
|
10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
|
12. |
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
|
¨ |
13. |
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
|
|
14. |
|
TYPE OF REPORTING PERSON
HC |
|
|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. Joh. A. Benckiser
S.à r.l. (“Joh. A. Benckiser”) may be deemed to have beneficial ownership of such shares since JAB BevCo is
an indirect subsidiary of Joh. A. Benckiser. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed
to constitute an admission by Joh. A. Benckiser that it is the beneficial owner of any of the common stock referred to herein for purposes
of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
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1. |
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NAMES OF REPORTING PERSONS:
Agnaten SE |
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2. |
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
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3. |
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SEC USE ONLY
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4. |
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SOURCE OF FUNDS
N/A |
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5. |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
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¨ |
6. |
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CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg |
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
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7. SOLE VOTING POWER |
None |
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8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
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9. SOLE DISPOSITIVE POWER |
None |
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10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
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12. |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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¨ |
13. |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
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14. |
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TYPE OF REPORTING PERSON
HC |
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|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. Agnaten SE
(“Agnaten”) may be deemed to have beneficial ownership of such shares since JAB BevCo is an indirect subsidiary of
Agnaten. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Agnaten
that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Exchange
Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
CUSIP No. 49271V100 |
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1. |
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NAMES OF REPORTING PERSONS:
Lucresca SE |
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2. |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ¨
(b) ¨ |
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3. |
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SEC USE ONLY
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4. |
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SOURCE OF FUNDS
N/A |
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5. |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e):
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¨ |
6. |
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CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg |
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
|
7. SOLE VOTING POWER |
None |
|
8. SHARED VOTING POWER |
383,443,879 (1) (see Items 4 and 5) |
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9. SOLE DISPOSITIVE POWER |
None |
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10. SHARED DISPOSITIVE POWER |
383,443,879 (1) (see Items 4 and 5) |
11. |
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
383,443,879
shares of Common Stock (see Items 4 and 5) |
|
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12. |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
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¨ |
13. |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
27.6% of Common Stock (2) (see Item 5) |
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14. |
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TYPE OF REPORTING PERSON
HC |
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|
(1) This represents the
aggregate voting and dispositive power of shares of Common Stock that may be deemed to be beneficially owned by JAB BevCo. Lucresca SE
(“Lucresca”) may be deemed to have beneficial ownership of such shares since JAB BevCo is an indirect subsidiary of
Lucresca. Neither the filing of this Statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Lucresca
that it is the beneficial owner of any of the common stock referred to herein for purposes of Section 13(d) of the Exchange
Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(2) The percentage ownership
is based upon 1,387,591,010 shares of Common Stock issued and outstanding as of February 20, 2024, as set forth in the Latest Periodic
Report.
EXPLANATORY NOTE
This Schedule 13D/A constitutes
Amendment No. 11 (“Amendment No. 11”) to and amends and supplements the prior statement on Schedule 13D as
filed on July 19, 2018, as amended by Amendment No. 1 filed on May 16, 2019, Amendment No. 2 filed on May 28,
2019, Amendment No. 3 filed on March 9, 2020, Amendment No. 4 filed on May 22, 2020, Amendment No. 5 filed on
June 12, 2020, Amendment No. 6 filed on August 19, 2020, Amendment No. 7 filed on September 9, 2020, Amendment
No. 8 filed on November 19, 2020, Amendment No. 9 filed on November 14, 2022 and Amendment No. 10 filed on May 3,
2023 (as so amended, the “Schedule 13D”), by (i) JAB BevCo B.V. (formerly known as Maple Holdings B.V.), a private
limited liability company (besloten vennootschap met beperkte aansprakelijkheid) organized under the laws of the Netherlands (“JAB
BevCo”), (ii) Acorn Holdings B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid)
organized under the laws of the Netherlands, which is the parent company of JAB BevCo (“Acorn”), (iii) JAB Coffee &
Beverages Holdings 2 B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) organized
under the laws of the Netherlands, which is the parent company of Acorn (“Holdings 2”), (iv) JAB Coffee &
Beverages Holdings B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) organized under
the laws of the Netherlands, which is the parent company of Holdings 2 (“Holdings”), (v) JAB Coffee &
Beverages B.V. (formerly known as Acorn Top Holding B.V.), a private limited liability company (besloten vennootschap met beperkte
aansprakelijkheid) organized under the laws of the Netherlands, which is the parent company of Holdings (“JAB C&B”),
(vi) JAB Forest B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) organized
under the laws of the Netherlands, which is the parent company of JAB C&B (“Forest”), (vii) JAB Holdings B.V.,
a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) organized under the laws of the Netherlands,
which is the parent company of Forest (“JAB Holdings”), (viii) JAB Investments S.à r.l., a private limited
liability company incorporated under the laws of Luxembourg, which is the parent company of JAB Holdings (“JAB Investments”),
(ix) JAB Holding Company S.à r.l., a private limited liability company incorporated under the laws of Luxembourg, which is
the parent company of JAB Investments (“JAB Holding Company”), (x) Joh. A. Benckiser S.à r.l., a private
limited liability company incorporated under the laws of Luxembourg, which is a parent company of JAB Holding Company (“Joh.
A. Benckiser”), (xi) Agnaten SE, a private company incorporated under the laws of Luxembourg, which is a parent company
of Joh. A. Benckiser (“Agnaten”), and (xii) Lucresca SE, a private company incorporated under the laws of Luxembourg,
which is a parent company of Joh. A. Benckiser (“Lucresca”, and together with JAB BevCo, Acorn, Holdings 2, Holdings,
JAB C&B, Forest, JAB Holdings, JAB Investments, JAB Holding Company, Joh. A. Benckiser and Agnaten, the “Reporting Persons”).
Except as set forth herein, the Schedule 13D as previously amended remains applicable.
| Item 4. | Purpose
of Transaction. |
Item 4 is hereby amended and supplemented as
follows:
On February 29, 2024,
JAB BevCo entered into an Underwriting Agreement (the “Underwriting Agreement”) with Morgan Stanley & Co.
LLC (the “Underwriter”) pursuant to which JAB BevCo agreed to sell 86,956,522 shares of Common Stock (the “Common
Stock”), par value $0.01 per share (the “Shares”), of Keurig Dr Pepper Inc. (“KDP”) through
a secondary offering (the “Offering”). JAB BevCo has also granted an option to the Underwriter to purchase up to an
additional 13,043,478 Shares for a period of 30 days following the date of the Offering.
KDP has indicated its intent
to repurchase an aggregate of 35 million Shares in the Offering (the “Repurchase”) at the per share price to be paid
by the Underwriter in the Offering. The Repurchase is being effected under its previously announced $4 billion repurchase authorization
of which approximately $1.8 billion will remain outstanding following the Offering. The Offering is expected to close on or around March 5,
2024, except with respect to the Repurchase which is expected to close on March 8, 2024.
As part of the Offering, certain
directors and officers of KDP have indicated an interest to purchase KDP shares.
Under the terms of the
transaction, the remaining Shares beneficially owned by JAB BevCo will be subject to a 180 day lock-up agreement with the
Underwriter with respect to KDP securities, subject to certain customary exceptions (“Lock-up Agreement”). JAB
BevCo expects to continue to be a long-term anchor shareholder in KDP, at or above the 20% ownership level.
The foregoing description
of the Underwriting Agreement and Lock-up Agreement does not purport to be complete and is qualified in its entirety by reference to the
Underwriting Agreement and accompanying form of Lock-up Agreement, substantially in the form attached as Exhibit 18 to this
Schedule 13D and incorporated herein by reference.
| Item 5. | Interest
in Securities of the Issuer. |
Item 5 is hereby amended and supplemented as
follows:
(a) –
(b) JAB BevCo beneficially owns 383,443,879 Shares, before giving effect to the Offering, which represents 27.6% of the issued
and outstanding Shares as of February 20, 2024, as set forth in the Annual Report on Form 10-K (the “Latest Periodic
Report”) filed by KDP with the United States Securities and Exchange Commission (the “Commission”) on February 22,
2024.
Each
of Acorn, Holdings 2, Holdings, JAB C&B, Forest, JAB Holdings, JAB Investments, JAB Holding Company, Joh. A. Benckiser, Agnaten and
Lucresca may be deemed, for purposes of Rule 13d-3 under the Exchange Act, to share with JAB BevCo the power to vote or dispose,
or to direct the voting or disposition of, the 383,443,879 Shares beneficially owned by JAB BevCo. Therefore, for the purpose of
Rule 13d-3, each of such Reporting Persons may be deemed to be the beneficial owners of an aggregate of 383,443,879 Shares.
As of the date hereof, Mr. Harf
may be deemed to be the beneficial owner of an aggregate of 3,619,600 Shares, which represents 0.3% of the issued and outstanding Shares
as of February 20, 2024, as set forth in the Latest Periodic Report.
As of the date hereof, Mr. Goudet
beneficially owns 3,528,437 Shares, which represents 0.3% of the issued and outstanding Shares as of February 20, 2024, as set forth
in the Latest Periodic Report.
As of the date hereof, Mr. Creus
beneficially owns 142,236 Shares, which represents less than 0.1% of the issued and outstanding Shares as of February 20, 2024, as
set forth in the Latest Periodic Report.
Except as set forth in this
Item 5(a), none of the Reporting Persons, and, to the best knowledge of the Reporting Persons, none of the persons named in Schedule A
to the Schedule 13D beneficially owns any Shares. Neither the filing of this Amendment No. 11 nor any of its contents shall be deemed
to constitute an admission by the Reporting Persons that it is the beneficial owner of any Shares.
(c) Except for the Offering
disclosed in Item 4 herein, none of the Reporting Persons, and to the best knowledge of the Reporting Persons, none of the persons named
in Schedule A to the Schedule 13D, has effected any transactions in the Shares during the past 60 days.
| Item 6. | Contracts,
Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Item 6 is hereby amended and supplemented as
follows:
In connection with the Offering
referred to in Item 4 above, JAB BevCo entered into the Underwriting Agreement and accompanying Lock-Up Agreement (see Item 4), substantially
in the form attached as Exhibit 18 to this Amendment No. 11 of the Schedule 13D and is incorporated herein by reference.
SIGNATURE
After reasonable inquiry and
to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: March 4, 2024
|
JAB COFFEE & BEVERAGES B.V.
JAB COFFEE & BEVERAGES HOLDINGS B.V.
JAB COFFEE & BEVERAGES HOLDINGS 2 B.V.
JAB FOREST B.V.
JAB HOLDINGS B.V. |
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By: |
/s/ Frank Engelen |
|
Name: |
Frank Engelen |
|
Title: |
Managing Director |
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|
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By: |
/s/ Sebastiaan Wolvers |
|
Name: |
Sebastiaan Wolvers |
|
Title: |
Managing Director |
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ACORN HOLDINGS B.V. |
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By: |
/s/ Rafael Canha |
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Name: |
Rafael Canha |
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Title: |
Managing Director |
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|
|
By: |
/s/ Sebastiaan Wolvers |
|
Name: |
Sebastiaan Wolvers |
|
Title: |
Managing Director |
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JOH. A. BENCKISER S.À R.L |
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By: |
/s/ Joachim Creus |
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Name: |
Joachim Creus |
|
Title: |
Managing Director |
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|
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By: |
/s/ Jonathan Norman |
|
Name: |
Jonathan Norman |
|
Title: |
Managing Director |
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JAB HOLDING COMPANY S.À r.l.
JAB INVESTMENTS S.À R.L. |
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By: |
/s/ Frank Engelen |
|
Name: |
Frank Engelen |
|
Title: |
Manager |
|
By: |
/s/ Jonathan Norman |
|
Name: |
Jonathan Norman |
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Title: |
Manager |
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AGNATEN SE |
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LUCRESCA SE |
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By: |
/s/ Joachim Creus |
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Name: |
Joachim Creus |
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Title: |
Authorized Representative |
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JAB BEVCO B.V. |
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By: |
/s/ Sebastiaan Wolvers |
|
Name: |
Sebastiaan Wolvers |
|
Title: |
Managing Director |
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By: |
/s/ Leo Burgers |
|
Name: |
Leo Burgers |
|
Title: |
Managing Director |
Exhibit 18
Execution Version
86,956,522 Shares
KEURIG DR PEPPER INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
February 29, 2024
February 29, 2024
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
The shareholder of Keurig Dr Pepper Inc., a Delaware
corporation (the “Company”), named in Schedule I hereto (the “Selling Shareholder”) proposes to
sell to the Underwriter named in Schedule II hereto (the “Underwriter”), an aggregate of 86,956,522 shares of the common
stock, par value $0.01 per share, of the Company (the “Firm Shares”), including the Repurchase Shares (as defined below).
The 51,956,522 Firm Shares not constituting Repurchase Shares are hereinafter referred to as the “Initial Firm Shares.”
The shares of common stock, par value $0.01 per share, of the Company are hereinafter referred to as the “Common Stock.”
The Selling Shareholder also proposes to sell to
the Underwriter not more than an additional 13,043,478 shares of the Company’s common stock, par value $0.01 per share (the “Additional
Shares”), if and to the extent that the Underwriter shall have determined to exercise its right to purchase such shares of common
stock granted to the Underwriter in Section 3 hereof. The Initial
Firm Shares, the Repurchase Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.”
Subject to the sale of the Firm Shares by the Selling
Shareholder to the Underwriter in compliance with the terms of this Agreement, the Underwriter has agreed to sell to the Company, and
the Company has agreed to purchase from the Underwriter (the “Share Repurchase”) an aggregate of 35,000,000 shares
of Common Stock (such shares, the “Repurchase Shares”) pursuant to Section 3 of this Agreement. This Agreement
is to confirm the agreement concerning the purchase of the Common Stock from the Selling Shareholder by the Underwriter, and the purchase
of the Repurchase Shares from the Underwriter by the Company.
The Company has filed with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-266989), including a prospectus,
relating to the Shares. The registration statement as amended at the time it becomes effective, 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”;
the prospectus in the form first used to confirm sales of Shares (or in the form first made available to the Underwriter 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 (i) the prospectus supplement, dated August 19, 2022 (the “Resale Prospectus
Supplement”), that registers for resale from time to time shares of Common Stock, and (ii) the prospectus supplement specifically
relating to the Shares in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriter by
the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus”
and the term “preliminary prospectus” means any preliminary form of the Prospectus, including without limitation, the
Time of Sale Prospectus (as defined below).
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 documents and pricing information set forth in Schedule III 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. As used herein, the terms “Registration Statement,” “Base Prospectus,”
“preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents,
if any, incorporated by reference therein as of the date of reference to any such “Registration Statement,” “Base Prospectus,”
“preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus.” The terms “supplement,”
“supplemented,” “amendment,” “amended” and “amend” as used
herein with respect to the Registration Statement, the Base Prospectus, the Resale Prospectus Supplement, any preliminary prospectus,
the Time of Sale Prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference
therein.
1. Representations
and Warranties of the Company. The Company represents and warrants to and agrees with the Underwriter 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 or pursuant to Section 8A under the Securities Act 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 or deemed to be 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) the Registration Statement, when it became effective, did
not contain and, 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 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, (iv) the Time of Sale Prospectus does not, and at
the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers
and at the Initial Closing Date (as defined in Section 5), the
Repurchase Closing Date (as defined in Section 5) and at any
Option Closing Date (as defined in Section 3), 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, (v) 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 (vi) as of its date
and the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date, the Prospectus does not contain and, as amended
or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in
the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to the Underwriter furnished
to the Company in writing by the Underwriter expressly for use therein.
(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities
Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been,
or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material
respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except
for the free writing prospectuses, if any, identified in Schedule III hereto, and electronic road shows, if any, each furnished to
the Underwriter before first use, the Company has not prepared, used or referred to, and will not, without the Underwriter’s 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 or lease its property and to conduct its business as described in each of the Registration
Statement, 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, singly or in the aggregate, reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) Each
subsidiary of the Company has been duly incorporated, organized or formed, is validly existing as a corporation or other business entity
in good standing under the laws of the jurisdiction of its incorporation, organization or formation (to the extent the concept of good
standing is applicable in such jurisdiction), has the corporate or other business entity power and authority to own or lease its property
and to conduct its business as described in each of the Registration Statement, 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 (to the extent the concept of good standing is applicable in such jurisdiction), except
to the extent that the failure to be so qualified or be in good standing would not, singly or in the aggregate, reasonably be expected
to have a material adverse effect on the Company and its subsidiaries, taken as a whole; 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
(to the extent such concepts are applicable under relevant law) and are owned directly or indirectly by the Company (except, for investments
in those subsidiaries of the Company set forth together with the Company’s approximate ownership interest in each such subsidiary
as of December 31, 2023 on Schedule IV attached hereto and, in the case of any foreign subsidiary, for directors’ qualifying
shares, none of which constitute a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X) and except
as required by applicable law, free and clear of any material lien, charge, encumbrance, security interest, restriction on voting or transfer
or any other claim of any third party (other than transfer restrictions under applicable securities laws and liens permitted by the debt
instruments (each, as amended and supplemented as of the date hereof) of the Company and its subsidiaries described in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
(f) This
Agreement has been duly authorized, executed and delivered by the Company and the Share Repurchase has been duly authorized 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 Registration
Statement, the Time of Sale Prospectus and the Prospectus.
(h) The
shares of Common Stock (including the Shares to be sold by the Selling Shareholder) outstanding as of the date hereof have been duly authorized
and are validly issued, fully paid and non-assessable.
(i) The
execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, including the Share
Repurchase, will not contravene (i) any provision of applicable law, (ii) the certificate of incorporation or by-laws of the
Company, (iii) 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 (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, except, in the cases of clauses (i), (iii) and (iv) above, as would not, singly or in the
aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power
or ability of the Company to perform its obligations under this Agreement, including the Share Repurchase. No consent, approval, authorization
or order of, or qualification with, any governmental body, agency or court is required for the performance by the Company of its obligations
under this Agreement, including the Share Repurchase, except such as may have already been obtained or made or be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(j) 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.
(k) 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 Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings
that would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement, including the Share Repurchase,
or to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or
(ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so
described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described
in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(l) 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.
(m) The
Company is not required, and after giving effect to the Share Repurchase will not be required, to register as an “investment company”
as such term is defined in the Investment Company Act of 1940, as amended.
(n) The
Company and its subsidiaries possess all licenses, certificates, permits, or other authorizations (“Permits”) issued
by the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease
of their respective properties or conduct of their respective businesses as described in the Registration Statement, the Time of Sale
Prospectus or the Prospectus, and have fulfilled all material obligations with respect to such Permits, except where the failure to possess
such Permits or perform such obligations would not singly or in the aggregate, reasonably be expected to have a material adverse effect
on the Company and its subsidiaries, taken as a whole; and except as described in the Registration Statement, the Time of Sale Prospectus
or the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any Permit
or has any knowledge that any such Permits will not be renewed in the ordinary course, except for such revocations, modifications or renewals
as would not singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(o) No
labor disturbance by or dispute with employees of the Company or its subsidiaries exists or, to the knowledge of the Company and its subsidiaries,
is contemplated or threatened, except as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(p) The
Company and each of its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws, rules,
regulations, requirements, decisions and orders relating to the protection of human health and safety, the environment, natural resources,
hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”), (ii) have
received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability
under or relating to any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected
to result in such notice, 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,
reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) There
are no costs or liabilities associated with Environmental Laws relating to the Company or any of its Subsidiaries which would, singly
or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) Except
as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus and as would not reasonably be expected
to have a material adverse effect on the Company and its subsidiaries, taken as a whole (i) each employee benefit pension plan, within
the meaning of Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)
subject to Title IV of ERISA that is maintained and established by the Company or any member of its “Controlled Group” (defined
as any entity, whether or not incorporated, that is under common control with the Company within the meaning of Section 4001(a)(14)
of ERISA or any entity that would be regarded as a single employer with the Company under Section 414(b), (c), (m) or (o) of
the Internal Revenue Code of 1986, as amended (the “Code”)) (each, a “Plan”) has been maintained
in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited
to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for
each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code, whether or not waived, has occurred or is reasonably expected to
occur; (iv) the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan (determined
based on those assumptions used to fund such Plan); (v) no “reportable event” (within the meaning of Section 4043(c) of
ERISA) not waived by the Pension Benefit Guarantee Corporation (“PBGC”) has occurred or is reasonably expected to occur;
and (vi) neither the Company, and to the knowledge of the Company, nor any member of the Controlled Group has incurred, nor reasonably
expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary
course and without default) with respect to the termination of a Plan (or the withdrawal from a “multiemployer plan” within
the meaning of Section 4001(a)(3) of ERISA).
(s) The
Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business
interruption insurance, which insurance is in amounts and insures against such losses and risks as the applicable entity deems are adequate
to protect the Company and its subsidiaries and their respective businesses, as applicable; and neither the Company nor any of its subsidiaries
has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.
(t) 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 Shares registered pursuant to the Registration Statement, except as such have been duly waived or complied with
in connection with the sale of the Shares contemplated hereby.
(u) (i) None
of the Company or any of its subsidiaries, nor any director of the Company, or, to the Company’s knowledge, any officer, employee,
agent, controlled affiliate or other person acting on behalf of the Company or of any of its subsidiaries, has taken or will take any
action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property,
gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government
or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or
on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“Government Official”)
in order to influence official action, or to any person in violation of any applicable anti-corruption laws; and (ii) the Company
and each of its subsidiaries and controlled affiliates have conducted their businesses in compliance with applicable anti-corruption laws
and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance
with such laws and with the representations and warranties contained herein.
(v) The
operations of the Company and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable
financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the
applicable anti-money laundering statutes of jurisdictions where the Company and each of its subsidiaries conduct business, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(w) (i) None
of the Company, any of its subsidiaries, or any director or, to the Company’s knowledge, any officer, employee, agent, controlled
affiliate or other person acting on behalf of the Company or any of its subsidiaries, is an individual or entity (“Person”)
that is, or is owned or controlled by one or more Persons that are:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the
United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), or
(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 Region and the non-government controlled areas of the
Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant
to Executive Order 14065).
(ii) For
the past three years, except as would not result in a violation of Sanctions by any person, the Company and each of its subsidiaries have
not knowingly engaged in, and are not now 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.
(x) The
Company and its subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items
of real and personal property that are material to their respective businesses, taken as a whole, in each case free and clear of all liens,
encumbrances, claims and defects with respect to the Company and its subsidiaries, except those that (i) do not materially interfere
with the use made and proposed to be made of such property by the Company and its subsidiaries or (ii) would not singly or in the
aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(y) Except
as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries,
taken as a whole: (i) the Company and its subsidiaries own or possess the right to use all material patents, patent applications,
trademarks, service marks, trade names copyrights, know-how and trade secrets (collectively, “Intellectual Property Rights”)
necessary for the conduct of their businesses as currently conducted; (ii) to the knowledge of the Company, conduct of the Company’s
and its subsidiaries’ businesses, as currently conducted, does not infringe, misappropriate or otherwise conflict with any Intellectual
Property Rights of any third party; and (iii) the Company and its subsidiaries have not received any written notice of any claim
against the Company concerning the foregoing.
(z) [Reserved]
(aa) (i) The
Company and each of its subsidiaries have complied and are presently in compliance, in all material respects, with all internal and external
privacy policies, contractual obligations, industry standards, applicable laws, statutes, judgments, orders, rules and regulations
of any court or arbitrator or other governmental or regulatory authority and any other legal obligations, in each case, relating to the
collection, use, transfer, import, export, storage, protection, disposal and disclosure by the Company or any of its subsidiaries of personal,
personally identifiable, household, sensitive, confidential or regulated data (“Data Security Obligations”, and such
data, “Data”); (ii) the Company has not received any notification of or complaint regarding and is unaware of
any other facts that, individually or in the aggregate, would result in a material non-compliance with any Data Security Obligation; and
(iii) of there is no action, suit or proceeding by or before any court or governmental agency, authority or body pending or, to the
knowledge of the Company, threatened alleging non-compliance with any Data Security Obligation.
(bb) The
Company and each of its subsidiaries have, in all material respects, taken technical and organizational measures necessary to protect
the information technology systems and Data used in connection with the operation of the Company’s and its subsidiaries’ businesses.
Without limiting the foregoing, the Company and its subsidiaries have used reasonable efforts to establish and maintain, and have established,
maintained, implemented and complied with, in all material respects, reasonable information technology, information security, cyber security
and data protection controls, policies and procedures, including oversight, access controls, encryption, technological and physical safeguards
and business continuity/disaster recovery and security plans that are designed to protect against and prevent breach, destruction, loss,
unauthorized distribution, use, access, disablement, misappropriation or modification, or other compromise or misuse of or relating to
any information technology system or Data used in connection with the operation of the Company’s and its subsidiaries’ businesses
(“Breach”). To the knowledge of the Company, there has been no material Breach, and the Company and its subsidiaries
have not been notified of and have no knowledge of any event or condition that would reasonably be expected to result in, any material
Breach.
(cc) The
Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date
of this Agreement or have requested extensions thereof (except where the failure to file would not, singly or in the aggregate, reasonably
be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole) and have paid all taxes required
to be paid thereon (except for cases in which the failure to file or pay would not, singly or in the aggregate, reasonably be expected
to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or, except as currently being contested in good
faith and for which reserves required by generally accepted accounting principles (“U.S. GAAP”) have been created in
the financial statements of the Company), and except as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus
or the Prospectus, there is no tax deficiency that has been asserted against the Company or any of its subsidiaries or any of their respective
properties or assets which, singly or in the aggregate, has had a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(dd) The
financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Prospectus and the
Prospectus, together with the related schedules and notes thereto, comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and present fairly the consolidated financial position of the Company and its subsidiaries as of the
dates shown and its results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity
with U.S. GAAP applied on a consistent basis throughout the periods covered thereby except for any normal year-end adjustments in the
Company’s quarterly financial statements. The other financial information included in each of the Registration Statement, the Time
of Sale Prospectus and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and
presents fairly in all material respects the information shown thereby. Nothing has come to the attention of the Company that has caused
the Company to believe that the statistical and market-related data included or incorporated by reference in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus is not based on or derived from sources that are reliable and accurate in all
material respects.
(ee) Deloitte &
Touche LLP (“Deloitte”), who have certified certain financial statements of the Company and its subsidiaries, delivered
its respective reports with respect to such audited consolidated financial statements and schedules filed with the Commission as part
of the Registration Statement and included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, is an
independent registered public accounting firm with respect to the Company and within the meaning of the Securities Act and the applicable
rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States), as
applicable, in each case, during the periods covered by such financial statements.
(ff) The
Company maintains a system of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange
Act) that have been designed by, or under the supervision of, its principal executive and principal financial officers, or persons performing
similar functions to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with U.S. GAAP, including, but not limited to internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with U.S. GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. Except as disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus, there are no material
weaknesses or significant deficiencies in the Company's internal controls.
(gg) To
the Company’s knowledge, the interactive data in eXtensible Business Reporting Language included or incorporated by reference in
the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with
the Commission’s rules and guidelines applicable thereto.
(hh) As
of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers,
none of (A) the Time of Sale Prospectus or (B) any free writing prospectus, when considered together with the Time of Sale Prospectus,
included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) The
Company has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization
or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(jj) No
forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included
or incorporated by reference in any of the Registration Statement, the Time of Sale Prospectus or the Prospectus has been made or reaffirmed
by the Company without a reasonable basis or has been disclosed other than in good faith.
2. Representations
and Warranties of the Selling Shareholder. The Selling Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This
Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(b) The
execution and delivery by the Selling Shareholder of, and the performance by the Selling Shareholder of its obligations under, this Agreement
will not contravene (i) any provision of applicable law, (ii) the organizational documents of the Selling Shareholder, (iii) any
agreement or other instrument binding upon the Selling Shareholder or (iv) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Selling Shareholder, except in the case of (i), (iii) and (iv) as would not, singly
or in the aggregate, reasonably be expected to have a material adverse effect on the Selling Shareholder’s ability to perform its
obligations under this Agreement. No consent, approval, authorization or order of, or qualification with, any governmental body, agency
or court is required for the performance by the Selling Shareholder of its obligations under this Agreement, except (i) such as may
have already been obtained, (ii) 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 Shares or (iii) such that would not reasonably be expected to have a material adverse effect on the ability
of the Selling Shareholder to consummate the transactions contemplated by this Agreement.
(c) The
Selling Shareholder has, and on the Initial Closing Date, the Repurchase Closing Date and any Option Closing Date will have, valid title
to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in
respect of, the Shares to be sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other
encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell,
transfer and deliver the Shares to be sold by the Selling Shareholder or a security entitlement in respect of such Shares.
(d) Upon
payment for the Shares to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriter,
to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”),
registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities
accounts of the Underwriter (assuming that neither DTC nor the Underwriter has notice of any adverse claim (within the meaning of Section 8-105
of the New York Uniform Commercial Code (the “UCC”)) to such Shares), (A) DTC shall be a “protected purchaser”
of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriter will
acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within
the meaning of Section 8-102 of the UCC, to such Shares may be successfully asserted against the Underwriter with respect to such
security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery and crediting
occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s
share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “clearing
corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the account of the Underwriter
on the records of DTC will have been made pursuant to the UCC.
(e) The
Selling Shareholder has delivered to the Underwriter an executed lock-up agreement in substantially the form attached hereto as Exhibit A
(the “Lock-up Agreement”).
(f) The
Selling Shareholder has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Shares in violation of Regulation M under the Exchange Act.
(g) The
Selling Shareholder is not prompted by any information concerning the Company or its subsidiaries which is not set forth in the Registration
Statement, the Time of Sale Prospectus or the Prospectus to sell its Shares pursuant to this Agreement.
(h) (i) the
Registration Statement, when it became effective, did not contain and, 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with
the offering when the Prospectus is not yet available to prospective purchasers and at the Initial Closing Date, the Repurchase Closing
Date and any Option Closing Date (as defined in Section 5),
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, and (iii) the Prospectus does not contain and, as amended or supplemented, 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; provided that the representations and warranties set forth in
this paragraph 2(g) are limited in all respects to statements or omissions made in reliance upon and in conformity with information
relating to the Selling Shareholder furnished to the Company in writing by the Selling Shareholder expressly for use in the Registration
Statement, the Time of Sale Prospectus, the Prospectus or any amendments or supplements thereto, it being understood and agreed that for
purposes of this Agreement, the only information furnished by the Selling Shareholder consists of the name of the Selling Shareholder,
the number of offered shares and the address and other information with respect to the Selling Shareholder (excluding percentages) which
appear in the Registration Statement or any Prospectus in the table (and corresponding footnotes) under the caption “The Selling
Shareholder” (the “Selling Shareholder Information”).
(i) (i) None
of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee,
agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the
subject of any Sanctions, or
(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 Region and the non-government controlled areas of the
Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea, Syria or any other Covered Region of Ukraine identified pursuant
to Executive Order 14065).
(ii) The
Selling Shareholder 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) For
the past five years, the Selling Shareholder 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.
(iv) (a) None
of the Selling Shareholder or any of its subsidiaries, or, to the knowledge of the Selling Shareholder, any director, officer, employee,
agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or
authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly,
to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws;
(b) the Selling Shareholder and each of its subsidiaries have conducted their businesses in compliance with applicable anti-corruption
laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve
compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Shareholder nor
any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to
pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption
laws.
(v) The
operations of the Selling Shareholder and each of its subsidiaries are and have been conducted at all times in compliance with all applicable
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 Selling Shareholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or,
to the best knowledge of the Selling Shareholder, threatened.
(j) The
Selling Shareholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a
plan or account subject to Section 4975 of the Code or (iii) an entity deemed to hold “plan assets” of any such
plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(k) The
Selling Shareholder represents that no stamp, documentary, issuance, registration, transfer, withholding, capital gains, income or other
taxes or duties are payable by or on behalf of the Underwriter, the Company or any of its subsidiaries or to any taxing authority thereof
or therein in connection with (i) the execution, delivery or consummation of this Agreement by the Selling Shareholder, (ii) the
sale and delivery of the Shares by the Selling Shareholder to the Underwriter or purchasers procured by the Underwriter, or (iii) the
resale and delivery of such Shares by the Underwriter in the manner contemplated herein.
(l) The
Selling Shareholder has the power to submit, and pursuant to Section 20(a) has, to the extent permitted by law, legally, validly,
effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 20(a)), and has the power
to designate, appoint and empower, and pursuant to Section 20(b), has legally, validly and effectively designated, appointed and
empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
3. Agreements
to Sell and Purchase. The Selling Shareholder hereby agrees to sell to the Underwriter, and the Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the terms and conditions hereinafter stated, agrees to purchase the Shares
from the Selling Shareholder at $28.90 a share (the “Purchase Price”). Subject to the sale of the Firm Shares by the
Selling Shareholder to the Underwriter pursuant to this Agreement, the Underwriter hereby agrees to sell to the Company, and the Company
hereby agrees to purchase from the Underwriter, the Repurchase Shares at a price per share equal to the Purchase Price. Upon completion
of the Share Repurchase, the Company shall retire the Repurchase Shares and the Repurchase Shares will no
longer be outstanding.
On the basis of the representations and warranties
contained in this Agreement, and subject to its terms and conditions, the Selling Shareholder agrees to sell to the Underwriter the Additional
Shares, and the Underwriter shall have the right to purchase up to 13,043,478 Additional Shares at the Purchase Price, provided, however,
that the amount paid by the Underwriter for any Additional Shares shall be reduced by an amount per share equal to any dividends declared
by the Company and payable on the Firm Shares but not payable on such Additional Shares. The Underwriter may exercise this right in whole
or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall
specify the number of Additional Shares to be purchased by the Underwriter and the date on which such shares are to be purchased. Each
purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the
Firm Shares or later than ten business days after the date of such notice. On each day, if any, that Additional Shares are to be purchased
(an “Option Closing Date”), the Underwriter agrees to purchase the number of Additional Shares (subject to such adjustments
to eliminate fractional shares as the Underwriter may determine) that bears the same proportion to the total number of Additional Shares
to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule II hereto opposite the name of the
Underwriter bears to the total number of Firm Shares.
4. Terms
of Public Offering. The Selling Shareholder is advised by the Underwriter that it proposes to make a public offering of the Shares
as soon after the Registration Statement and this Agreement have become effective as in the Underwriter’s judgment is advisable.
5. Payment
and Delivery. Payment for the Initial Firm Shares to be sold by the Selling Shareholder shall be made to the Selling Shareholder in
Federal or other funds immediately available in New York City against delivery of such Shares for the account of the Underwriter at 10:00 a.m.,
New York City time, on March 5, 2024, or at such other time on the same or such other date, not later than March 30, 2024, with
respect to any Shares purchased by the Company in the offering as shall be designated in writing by the Underwriter. The time and date
of such payment are hereinafter referred to as the “Initial Closing Date.”
Payment for the Repurchase Shares to be sold by
the Selling Shareholder shall be made to the Selling Shareholder in Federal or other funds immediately available in New York City against
delivery of such Shares for the account of the Underwriter at 10:00 a.m., New York City time, on March 8, 2024, or at such other
time on the same or such other date, not later than March 30, 2024, with respect to any Shares purchased by the Company in the offering
as shall be designated in writing by the Underwriter. The time and date of such payment are hereinafter referred to as the “Repurchase
Closing Date.” In addition, subject to the sale of the Firm Shares by the Selling Shareholder to the Underwriter in compliance
with the terms of this Agreement, payment of the aggregate purchase price for the Repurchase Shares shall be made by the Company to the
Underwriter in immediately available funds by wire transfer to an account specified by the Underwriter, against delivery of such Repurchase
Shares for the account of the Company on the same date as the Repurchase Closing Date.
Payment for any Additional Shares to be sold by
the Selling Shareholder shall be made to such Selling Shareholder in Federal or other funds immediately available in New York City against
delivery of such Additional Shares for the account of the Underwriter at 10:00 a.m., New York City time, on the date specified in
the corresponding notice described in Section 3 or at such other
time on the same or on such other date, in any event not later than March 30, 2024, as shall be designated in writing by the Underwriter.
The Initial Firm Shares, Repurchase Shares and
Additional Shares shall be registered in such names and in such denominations as the Underwriter shall request not later than one full
business day prior to the Initial Closing Date, the Repurchase Closing Date or the applicable Option Closing Date, as the case may be.
The Initial Firm Shares, Repurchase Shares and Additional Shares shall be delivered to the Underwriter on the Initial Closing Date, the
Repurchase Closing Date or an Option Closing Date, as the case may be, for the account of the Underwriter. The Purchase Price payable
by the Underwriter shall be reduced by (i) any transfer taxes paid by, or on behalf of, the Underwriter in connection with the transfer
of the Shares to the Underwriter duly paid and (ii) any withholding required by law.
6. Conditions
to the Underwriter’s Obligations. The obligations of the Selling Shareholder to sell the Shares to the Underwriter and the obligations
of the Underwriter to purchase and pay for the Shares on the Initial Closing Date, the Repurchase Closing Date or the Option Closing Date,
as applicable, are subject to the condition that the Registration Statement became effective prior to the execution of this Agreement.
The obligations of the Underwriter are subject
to performance by the Company and the Selling Shareholder of their respective covenants and other obligations hereunder and to the following
further conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Initial Closing Date:
(i) no
order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to
Section 8A under the Securities Act shall be pending before or, to the knowledge of the Company, threatened by the Commission;
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the
Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined
in Section 3(a)(62) of the Exchange Act; and
(iii) 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 Underwriter’s judgment, is material and adverse and that makes it, in the Underwriter’s judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The
Underwriter shall have received on the Initial Closing Date (i) a certificate, dated the Initial Closing Date and signed by an executive
officer of the Company, to the effect set forth in Sections 6(a)(i) and
6(a)(ii) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct as of the Initial 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 the Initial
Closing Date and (ii) a certificate, dated the Initial Closing Date, of the Selling Shareholder to the effect that the representations
and warranties of the Selling Shareholder contained in this Agreement are true and correct as of the Initial Closing Date and that the
Selling Shareholder has complied with all of the agreements and satisfied all conditions on its part to be performed or satisfied hereunder
on or before the Initial Closing Date.
The officer signing and delivering such certificate
pursuant to Section 6(b)(i) may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The
Underwriter shall have received on the Initial Closing Date (i) an opinion and negative assurance letter of Skadden, Arps, Slate,
Meagher & Flom LLP, outside counsel for the Company, dated the Initial Closing Date, in form and substance satisfactory to the
Underwriter and (ii) an opinion of McDermott Will & Emery LLP, special tax counsel for the Company, dated the Initial Closing
Date, in form and substance satisfactory to the Underwriter.
(d) The
Underwriter shall have received on the Initial Closing Date, an opinion of Allen & Overy LLP, outside Dutch counsel for the Selling
Shareholder, dated the Initial Closing Date, in form and substance satisfactory to the Underwriter.
(e) The
Underwriter shall have received on the Initial Closing Date an opinion and negative assurance letter of Weil, Gotshal & Manges
LLP, outside counsel for the Underwriter, dated the Initial Closing Date, in form and substance satisfactory to the Underwriter.
(f) The
Underwriter shall have received, on each of the date hereof and the Initial Closing Date, a letter dated the date hereof or the Initial
Closing Date, as the case may be, in form and substance satisfactory to the Underwriter, from Deloitte, independent public accountants,
containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information pertaining to the Company contained in the Registration Statement,
the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Initial Closing Date shall use a “cut-off
date” not earlier than the date hereof.
(g) The
Lock-up Agreements between the Underwriter, the Selling Shareholder, certain shareholders, the directors and certain officers of the Company
shall be in full force and effect on the Initial Closing Date.
(h) The
Underwriter shall have received on the Initial Closing Date a certificate, dated the Initial Closing Date and signed by the chief financial
officer of the Company, in form and substance satisfactory to the Underwriter.
(i) Substantially
concurrently with the consummation of the offering of the Firm Shares on the Repurchase Closing Date, the Share Repurchase shall be consummated.
(j) The
obligations of the Underwriter to purchase Additional Shares hereunder are subject to the delivery to the Underwriter on the applicable
Option Closing Date of the following:
(i) a
certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered
on the Repurchase Closing Date pursuant to Section 6(b)(i) hereof remains true and correct as of such Option Closing Date;
(ii) a
certificate, dated the Option Closing Date, confirming that the certificate delivered on the Repurchase Closing Date pursuant to Section 6(b)(ii) hereof
remains true and correct as of such Option Closing Date;
(iii) an
opinion and negative assurance letter of Skadden, Arps, Slate, Meagher & Flom LLP, outside counsel for the Company, dated the
Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as
the opinion required by Section 6(c)(i) hereof;
(iv) an
opinion of McDermott Will & Emery LLP, special tax counsel for the Company, dated the Option Closing Date, relating to the Additional
Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c)(ii) hereof;
(v) An
opinion of Allen & Overy LLP, outside Dutch counsel for the Selling Shareholder, dated the Option Closing Date, relating to the
Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d)(ii) hereof;
(vi) an
opinion and negative assurance letter of Weil, Gotshal & Manges LLP, outside counsel for the Underwriter, dated the Option Closing
Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required
by Section 6(e) hereof;
(vii) a
letter dated the Option Closing Date, in form and substance satisfactory to the Underwriter, from Deloitte, independent public accountants,
substantially in the same form and substance as the letter furnished to the Underwriter pursuant to Section 6(f) hereof; provided
that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to
such Option Closing Date;
(viii) a
letter dated the Option Closing Date, in form and substance satisfactory to the Underwriter, from Deloitte, independent public accountants,
substantially in the same form and substance as the letter furnished to the Underwriter pursuant to Section 6(g) hereof; provided
that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to
such Option Closing Date;
(ix) a
certificate, dated the Option Closing Date and signed by the chief financial officer of the Company, in form and substance provided pursuant
to Section 6(i) hereof; and
(x) such
other documents as the Underwriter may reasonably request with respect to the good standing of the Company and other matters related to
the sale of such Additional Shares.
7. Covenants
of the Company. The Company covenants with the Underwriter as follows:
(a) To
furnish to the Underwriter, without charge, two signed copies of the Registration Statement (including exhibits thereto and documents
incorporated by reference) and to furnish to the Underwriter in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 7(e) or
7(f) below, as many copies of the Time of Sale Prospectus, the
Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement
as the Underwriter may reasonably request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Underwriter a copy
of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Underwriter reasonably
objects, 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 Underwriter 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 Underwriter reasonably objects.
(d) Not
to take any action that would result in the 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 Shares 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 Underwriter, 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 Underwriter 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 the Time of Sale Prospectus is delivered to a prospective purchaser,
be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement,
or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If,
during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriter the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection
with sales by the Underwriter or a 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) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion
of counsel for the Underwriter, 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 Underwriter and to the dealers (whose names and addresses the Underwriter
will furnish to the Company) to which Shares may have been sold by the Underwriter 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) of the Securities Act) is delivered
to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriter shall
reasonably request; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity
or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(h) To
make generally available to the Company’s security holders and to the Underwriter 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,
provided that the Company will be deemed to have complied with such requirement by filing such earnings statement on the Commission’s
Electronic Data Gathering, Analysis, and Retrieval system (or any successor system).
(i) If
the Selling Shareholder is not a U.S. person for U.S. federal income tax purposes, the Company will deliver to the Underwriter (or its
agent), on or before the Initial Closing Date, (i) a certificate with respect to the Company’s status as a “United States
real property holding corporation,” dated not more than thirty (30) days prior to the Initial Closing Date, as described in Treasury
Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (ii) proof of delivery to the IRS of the required notice, as described
in Treasury Regulations Section 1.897-2(h)(2).
The Company also covenants with the Underwriter
that, without the prior written consent of the Underwriter, it will not, and will not publicly disclose an intention to, during the period
ending 180 days after the date of the Prospectus (the “Restricted Period”), (1) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) file any registration statement
with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock.
The restrictions contained in the preceding paragraph
shall not apply to (A) the Shares to be sold hereunder, (B) the issuance by the Company of shares of Common Stock upon the exercise
or settlement (including any “net” or “cashless” exercises or settlements) of options, restricted stock units,
warrants or similar securities or the conversion of a security outstanding on the date hereof as described in each of the Time of Sale
Prospectus and Prospectus, (C) the issuance by the Company of any shares of Common Stock, or securities convertible into, exchangeable
for or that represent the right to receive shares of Common Stock pursuant to the Company’s incentive plans that are in effect as
of the date hereof and described in the Time of Sale Prospectus and Prospectus, (D) facilitating the establishment of a trading plan
on behalf of a shareholder, officer or director of the Company pursuant to Rule 10b5-1 under the Exchange Act for the transfer of
shares of Common Stock, provided that (i) such plan does not provide for the transfer of Common Stock during the Restricted
Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made
by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer
of Common Stock may be made under such plan during the Restricted Period, (E) the repurchase of any shares of Common Stock pursuant
to existing agreements or rights providing for an option to repurchase or a right of first refusal on behalf of the Company pursuant to
the Company’s repurchase rights or agreements that were in existence on the date hereof and described in the Prospectus (including
the information incorporated by reference therein), (F) the issuance by the Company of shares of Common Stock or securities convertible
into, exchangeable for or that represent the right to receive shares of Common Stock in connection with (1) the acquisition by the
Company or any of its subsidiaries of the securities, business, technology, property or other assets of another person or entity or pursuant
to an employee benefit plan assumed by the Company in connection with such acquisition, and the issuance of any such securities pursuant
to any such agreement, or (2) the Company’s joint ventures, commercial relationships and other strategic transactions, provided
the aggregate number of shares of Common Stock that the Company may sell or issue or agree to sell or issue pursuant to this clause (F) shall
not exceed 5% of the total number of shares of capital stock outstanding immediately following the offering of the Firm Shares contemplated
by this Agreement.
8. Covenants
of the Selling Shareholder. The Selling Shareholder covenants with the Underwriter as follows:
(a) The
Selling Shareholder will deliver to the Underwriter (or its agent), prior to or at the Initial Closing Date, a properly completed and
executed Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all
required attachments to such form.
(b) The
Selling Shareholder will deliver to the Underwriter (or its agent), on the date of execution of this Agreement, a properly completed and
executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the
Selling Shareholder undertakes to provide such additional supporting documentation as the Underwriter may reasonably request in connection
with the verification of the foregoing Certification.
(c) All
sums payable by the Selling Shareholder under this Agreement shall be paid free and clear of and without deductions or withholdings of
any present or future taxes or duties, unless such deduction or withholding is required by law, in which case the Selling Shareholder
shall pay such additional amount as will result in the receipt by the Underwriter of the full amount that would have been received had
no deduction or withholding been made. For the avoidance of doubt, no additional amounts shall be payable by the Company or the Selling
Shareholder in respect of taxes or duties imposed on a net income basis due to some connection of the Underwriter with the jurisdiction
imposing the tax other than the entering into of this Agreement or receipt of payments hereunder.
(d) All
sums payable to the Underwriter under this Agreement shall be considered exclusive of any value added or similar taxes. Where the Selling
Shareholder is obliged to pay value added or similar tax on any amount payable hereunder to the Underwriter, the Selling Shareholder shall
in addition to the sum payable hereunder pay an amount equal to any applicable value added or similar tax, provided that the Underwriter
has issued a valid invoice to the Selling Shareholder.
9. Expenses.
Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company’s counsel, the Company’s accountants and counsel for the Selling Shareholder in
connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with
the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any
free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriter and
dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares
to the Underwriter, 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 Shares under state securities laws and all expenses in connection
with the qualification of the Shares for offer and sale under state securities laws as provided in Section 7(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Underwriter 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 Underwriter incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry
Regulatory Authority (provided that the amount payable by the Company with respect to fees and disbursements of counsel for the
Underwriter pursuant to subsections (iii) and (iv) shall not exceed $30,000 in the aggregate), (v) all costs and expenses
incident to listing the Shares on the NYSE, (vi) the cost of printing certificates representing the Shares, (vii) the costs
and charges of any 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 Shares, 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 and fees and expenses of any consultants engaged in connection with the road show presentations with the prior
approval of the Company, (ix) the document production charges and expenses associated with printing this Agreement and (x) 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 11
entitled “Indemnity and Contribution” and the last paragraph of Section 13
below, the Underwriter will pay all of its costs and expenses, including fees and disbursements of its counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected with any offers they may make.
The provisions of this Section shall not supersede
or otherwise affect any agreement that the Company and the Selling Shareholder may otherwise have for the allocation of such expenses
among themselves.
10. Covenants
of the Underwriter. The Underwriter 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 the Underwriter that otherwise
would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
11. Indemnity
and Contribution. (a) The Company agrees to indemnify and hold harmless the Underwriter, each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate
of the 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 reasonably incurred and documented legal or other expenses reasonably incurred in connection
with defending or investigating any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of
Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act, any “road show” as defined in Rule 433(h) under the Securities Act (a “road show”),
the Prospectus or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to the Underwriter furnished to the Company in writing by the Underwriter
expressly for use therein, it being understood and agreed that the only such information furnished by the Underwriter consists of the
information described as such in paragraph (c) below. The Company agrees and confirms that reference to “Affiliates”
of Morgan Stanley & Co. LLC that appear in this Agreement shall be understood to include Mitsubishi UFJ Morgan Stanley Securities
Co., Ltd.
(b) The
Selling Shareholder agrees to indemnify and hold harmless the Underwriter, each person, if any, who controls the Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any
amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any
Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any
road show, the Prospectus or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with
reference to the Selling Shareholder Information relating to the Selling Shareholder. The liability of the Selling Shareholder under the
representations and warranties contained in this Agreement and under the indemnity and contribution agreements contained in this Section 11
shall be limited to an amount equal to the aggregate net proceeds after underwriting commissions and discounts, but before expenses, received
by the Selling Shareholder from the sale of Shares sold by the Selling Shareholder under this Agreement.
(c) The
Underwriter agrees to indemnify and hold harmless the Company, the Selling Shareholder, the directors of the Company, the officers of
the Company who sign the Registration Statement and each person, if any, who controls the Company or the Selling Shareholder within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any
amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any
Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any
road show, or the Prospectus or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with
reference to information relating to the Underwriter furnished to the Company in writing by the Underwriter expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show or the Prospectus or
any amendment or supplement thereto, it being understood and agreed upon that the only such information furnished by the Underwriter consists
of the following information in the Prospectus: the information concerning stabilizing transactions, short sales and other information
appearing in the fifteenth paragraph under the caption “Underwriting.”
(d) 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 11(a), 11(b) or
11(c), 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 reasonably incurred and
documented 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 reasonably incurred and documented 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; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the
indemnified; (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are
different from or in addition to those available to the indemnifying party; and (iv) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Underwriter and
all persons, if any, who control the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act or who are affiliates of the Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the
fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section and (iii) the
fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling Shareholder and all persons, if any,
who control the Selling Shareholder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed
as they are incurred. In the case of any such separate firm for the Underwriter and such control persons and affiliates of the Underwriter,
such firm shall be designated in writing by the Underwriter. In the case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated in writing by the Company. In the case of any such separate
firm for the Selling Shareholder and such control persons of the Selling Shareholder, such firm shall be designated in writing by the
Selling Shareholder. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel
as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (x) includes an
unconditional release of such indemnified party, in form and substance satisfactory to the indemnified party, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any statement as to any admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(e) To
the extent the indemnification provided for in Section 11(a),
11(b) or 11(c) 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 indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 11(e)(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 11(e)(i) above
but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Selling Shareholder on the one hand and the Underwriter
on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Shares (before deducting expenses) received by the Selling Shareholder bear to the result of the price at which
the Underwriter sells the Shares less the price at which the Underwriter purchases the Shares from the Selling Shareholder. The relative
fault of the Company and the Selling Shareholder together on the one hand, and the Underwriter 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 either the Company or the Selling Shareholder or by the Underwriter, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) The
Company, the Selling Shareholder and the Underwriter agree that it would not be just or equitable if contribution pursuant to this Section 11
were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations
referred to in Section 11(e). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 11(e) 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 11,
the Underwriter shall not be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the amount of any damages that the 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 11
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.
(g) The
indemnity and contribution provisions contained in this Section 11
and the representations, warranties and other statements of the Company and the Selling Shareholder 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 the Underwriter, any person controlling the Underwriter or any affiliate of the Underwriter, or by or on behalf of
the Selling Shareholder or any person controlling the Selling Shareholder, 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 Shares.
12. Termination.
The Underwriter may terminate this Agreement by notice given by the Underwriter to the Company, if after the execution and delivery of
this Agreement and prior to or on the Initial Closing Date, the Repurchase Closing Date or any Option Closing Date, as the case may be,
(i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange,
the NYSE American, 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 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 Underwriter’s
judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the
Underwriter’s judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and
in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
13. Effectiveness.
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriter
because of any failure or refusal on the part of the Company or the Selling Shareholder to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company or the Selling Shareholder shall be unable to perform its obligations
under this Agreement, the Company or the Selling Shareholder, as applicable, will reimburse the Underwriter for all out-of-pocket expenses
(including the fees and disbursements of its counsel) reasonably incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
14. 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 Shares, represents the entire agreement between the Company
and the Selling Shareholder, on the one hand, and the Underwriter, on the other, with respect to the preparation of any preliminary prospectus,
the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The
Selling Shareholder and the Company each acknowledge that in connection with the offering of the Shares: (i) the Underwriter has
acted at arm’s length, is not an agent of, and owes no fiduciary duties to, the Selling Shareholder or the Company or any other
person, (ii) the Underwriter owes the Selling Shareholder and the Company only those duties and obligations set forth in this Agreement,
any contemporaneous written agreements and prior written agreements (to the extent not superseded by this Agreement), if any, (iii) the
Underwriter may have interests that differ from those of the Selling Shareholder and the Company and (iv) none of the activities
of the Underwriter in connection with the transactions contemplated herein constitutes a recommendation, investment advice, or solicitation
of any action by the Underwriter with respect to any entity or natural person. The Selling Shareholder and the Company each waive to the
full extent permitted by applicable law any claims it may have against the Underwriter arising from an alleged breach of fiduciary duty
in connection with the offering of the Shares.
15. Recognition
of the U.S. Special Resolution Regimes. (a) In the event that the Underwriter is a Covered Entity and becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer from the Underwriter of this Agreement, and any interest and obligation in or under
this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this
Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United State.
(b) In
the event that the Underwriter is a Covered Entity or a BHC Act Affiliate of the Underwriter becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under this Agreement that may be exercised against the Underwriter are permitted to be exercised
to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed
by the laws of the United States or a state of the United States.
For purposes of this Section a “BHC
Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with,
12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned
to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
16. Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic
signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act
or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have
been duly and validly delivered and be valid and effective for all purposes.
17. Applicable
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
18. 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.
19. Notices.
All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriter shall be delivered, mailed
or sent to the Underwriter in care of Morgan Stanley & Co. LLC at 1585 Broadway, New York, New York 10036, Attention: Equity
Syndicate Desk, with a copy to the Legal Department; if to the Company shall be delivered, mailed or sent to 53 South Avenue, Burlington,
Massachusetts 01803, Attention: Chief Legal Officer and General Counsel; if to the Selling Shareholder shall be delivered, mailed or sent
to Piet Heinkade 55, 1019 GM Amsterdam, the Netherlands, Attention: Joachim Creus.
20. Submission
to Jurisdiction; Appointment of Agents for Service. (a) The Selling Shareholder irrevocably submits to the non-exclusive jurisdiction
of any New York State or United States Federal court sitting in The City of New York (the “Specified Courts”) over
any suit, action or proceeding arising out of or relating to this Agreement, the Time of Sale Prospectus, the Prospectus, the Registration
Statement or the offering of the Shares (each, a “Related Proceeding”). The Selling Shareholder irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any Related Proceeding
brought in such a court and any claim that any such Related Proceeding brought in such a court has been brought in an inconvenient forum.
To the extent that the Selling Shareholder has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from
the jurisdiction of any court or from any legal process with respect to itself or its property, the Selling Shareholder irrevocably waives,
to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding.
(b) The
Selling Shareholder herby irrevocably appoints C T Corporation, with offices at 28 Liberty Street, New York, New York 10005 as its agent
for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it
at the office of such agent. The Selling Shareholder waives, to the fullest extent permitted by law, any other requirements of or objections
to personal jurisdiction with respect thereto. The Shareholder represents and warrants that such agent has agreed to act as the Selling
Shareholder’s agent for service of process, and the Selling Shareholder agrees to take any and all action, including the filing
of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect.
21. Judgment
Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency
other than United States dollars, the Underwriter and the Selling Shareholder agree, to the fullest extent permitted by law, that the
rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriter could purchase United States
dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation
of the Selling Shareholder with respect to any sum due from it to the Underwriter or any person controlling the Underwriter shall, notwithstanding
any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by the Underwriter
or controlling person of any sum in such other currency, and only to the extent that the Underwriter or controlling person may in accordance
with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are
less than the sum originally due to the Underwriter or controlling person hereunder, the Selling Shareholder agrees as a separate obligation
and notwithstanding any such judgment, to indemnify the Underwriter or controlling person against such loss. If the United States dollars
so purchased are greater than the sum originally due to the Underwriter or controlling person hereunder, the Underwriter or controlling
person agrees to pay the Selling Shareholder an amount equal to the excess of the dollars so purchased over the sum originally due to
the Underwriter or controlling person hereunder.
[SIGNATURE PAGES FOLLOW]
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Very truly yours, |
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KEURIG DR PEPPER INC. |
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By: |
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Name: |
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Title: |
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JAB BEVCO B.V. |
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Accepted as of the date hereof |
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MORGAN STANLEY & CO. LLC |
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Schedule I
Selling Shareholder | |
Number of Firm Shares To Be Sold | |
JAB BevCo B.V. | |
| 86,956,522 | |
Total: | |
| 86,956,522 | |
Schedule II
Underwriter | |
Number of Firm Shares To Be Purchased | |
Morgan Stanley & Co. LLC | |
| 86,956,522 | |
Total: | |
| 86,956,522 | |
Schedule III
Time of Sale Prospectus
| 1. | Preliminary Prospectus Supplement dated February 29, 2024, Resale Prospectus Supplement and Base Prospectus. |
| 2. | Free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act: Issuer free writing prospectus filed
February 29, 2024. |
| 3. | Pricing information provided orally by the Underwriter: |
Number of Shares: 86,956,522 shares
of common stock
Number of Shares Purchased by KDP: 35,000,000
shares of common stock
Price to the Public: $29.10
Exhibit A
FORM OF LOCK-UP AGREEMENT
[●], 2024
Morgan Stanley & Co. LLC
| c/o | Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036 |
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley &
Co. LLC (the “Underwriter”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”)
with Keurig Dr Pepper Inc., a Delaware corporation (the “Company”), and the Selling Stockholder named in Schedule I
thereto (the “Selling Stockholder”), providing for the public offering (the “Public Offering”) by
the Underwriter of shares of the common stock, par value $0.01 per share of the Company (the “Common Stock”).
To induce the Underwriter to continue its efforts
in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Underwriter, it will
not, and will not publicly disclose an intention to, during the period commencing on the date hereof and ending [180]1/[45]2
days after the date of the final prospectus supplement (the “Restricted Period”) relating to the Public Offering (the
“Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable
for Common Stock, (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled
by delivery of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, in cash or otherwise or
(3) make any demand for or exercise any right with respect to the registration of any shares of Common Stock or security convertible
into or exercisable or exchangeable for Common Stock.
The foregoing restrictions shall not apply to:
(a) transactions relating to shares of Common
Stock or other securities acquired in open market transactions after the completion of the Public Offering, provided that no filing
under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of
Common Stock or other securities acquired in such open market transactions,
1
For JAB.
2
For D&Os.
(b) transfers
or dispositions of shares of Common Stock or any security convertible or exercisable or exchangeable into Common Stock (i) as a bona
fide gift or charitable contribution, or for bona fide estate planning purposes, (ii) if the undersigned is a natural person, to
any member of the undersigned’s immediate family (as defined below) or to any trust for the direct or indirect benefit of the undersigned
or the immediate family of the undersigned or if the undersigned is a trust, to a trustor, a trustee or a beneficiary of the trust or
to the estate of a trustor, trustee or beneficiary of such trust, (iii) if the undersigned is a corporation, partnership, limited
liability company, or other business entity, (1) to limited partners, members, stockholders or holders of similar equity interests
in the undersigned (or in each case its nominee or custodian) or (2) to another corporation, partnership, limited liability company,
trust or other business entity (or in each case its nominee or custodian) that is an affiliate (as defined in Rule 405 promulgated
under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlled or managed by the
undersigned or affiliates of the undersigned, (iv) upon death or by will, testamentary document or intestate succession to the legal
representative, heir, beneficiary or a member of the immediate family of the undersigned, or (v) to a nominee or custodian of a person
or entity to whom a disposition or transfer would be permissible under clauses (b)(i) through (b)(iv); provided
that in the case of any transfer or distribution pursuant to clauses (b)(i) through (b)(iii) and (b)(v), (x) each
donee or distributee shall sign and deliver a lock-up agreement substantially in the form of this agreement for the balance of the Restricted
Period and (y) no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares
of Common Stock shall be required or shall be voluntarily made during the Restricted Period, other than as a result of the filing of a
Form 4 required by another event that is otherwise permissible under this agreement.
(c) the establishment of a trading plan on
behalf of a shareholder, officer or director of the Company pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares
of Common Stock, provided that (i) such plan does not provide for the transfer of Common Stock during the Restricted Period
and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on
behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement
to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period,
(d) transfers or sales to the Company in connection
with the repurchase of shares of Common Stock (or any security convertible into or exercisable or exchangeable for Common Stock) granted
under any existing stock incentive plan or stock purchase plan of the Company, which plan is described in the Prospectus (including the
information incorporated by reference therein), provided that the underlying shares shall continue to be subject to the restrictions
on transfer set forth in this agreement and provided further that no filing under Section 16(a) of the Exchange Act,
reporting a reduction in beneficial ownership of the underlying shares, or other public announcement reporting, shall be required or shall
be voluntarily made during the Restricted Period,
(e) the transfer of shares of Common Stock
(or any security convertible into or exercisable or exchangeable for Common Stock) to the Company pursuant to any existing stock incentive
plan or stock purchase plan of the Company, which plan is described in the Prospectus (including the information incorporated by reference
therein), upon a vesting or settlement event of the Company’s restricted stock units or other securities or upon the exercise of
options to purchase the Company’s securities on a “cashless” or “net exercise” basis to the extent permitted
by the instruments representing such options (and any transfer to the Company necessary in respect of such amount needed for the payment
of taxes, including estimated taxes and withholding tax and remittance obligations, due as a result of such vesting, settlement or exercise
whether by means of a “net settlement” or otherwise) so long as such vesting, settlement, “cashless” exercise
or “net exercise” is effected solely by the surrender of outstanding options (or the Common Stock issuable upon the exercise
thereof) or shares of Common Stock to the Company and the Company’s cancellation of all or a portion thereof to pay the exercise
price and/or withholding tax and remittance obligations in connection with the vesting, settlement or exercise of the restricted stock
unit, option or other equity award, provided that the shares received upon vesting, settlement or exercise of the restricted stock
unit, option or other equity award are subject to this agreement, and provided further that if the undersigned is required to file
a report under Section 16(a) of the Exchange Act, the undersigned shall clearly indicate in the footnotes thereto that the filing
relates to the circumstances described in this subpart (e).
(f) the transfer or disposition of the undersigned’s
Common Stock (or any security convertible into or exercisable or exchangeable for Common Stock) that occurs by operation of law, pursuant
to the rules of descent and distribution or pursuant to a qualified domestic order or in connection with a divorce settlement, provided
that each transferee shall sign and deliver a lock-up agreement substantially in the form of this agreement and provided further
that any associated filing under Section 16(a) of the Exchange Act shall clearly indicate in the footnotes thereto that the
filing relates to the circumstances described in this subpart (f),
(g) the transfer of shares of Common Stock
(or any security convertible into or exercisable or exchangeable for Common Stock) pursuant to a bona fide third party tender offer, merger,
consolidated or other similar transaction made to all holders of the capital stock of the Company involving a change of control (as defined
below) of the Company which occurs after the consummation of the Public Offering, is open to all holders of the Company capital stock
and has been approved by the board of directors of the Company; provided that in the event that the tender offer, merger, consolidation
or other such transaction is not completed, the Common Stock owned by the undersigned shall remain subject to the restrictions contained
in this agreement,
(h) pledges of Common Stock (or any security
convertible into or exercisable or exchangeable for Common Stock) as collateral in accordance with and subject to the terms and conditions
of a loan agreement and any related pledge and security agreements that were entered into prior to the date hereof (as the same may be
amended, supplemented, modified, extended, refinanced, replaced and/or renewed from time to time), and any subsequent foreclosure on such
collateral shares pledged in accordance with and subject to the terms and conditions of such loan agreement and any related pledge and
security agreements, [or]
[(i) transfers or sales to the Underwriter
pursuant to the Underwriting Agreement[, or][.]]3
3
The Lock-up agreement signed by the Selling Stockholder will include this carve-out.
[(i) [transfers or sales in an aggregate amount
of up to, but not more than, 15,000 shares of Common Stock in one or more transactions; provided that no more than one filing under
Section 16 of the Exchange Act be made during the Restricted Period[, or][.]]4
[(j) following the expiration of the 30-day
option of the Underwriter to purchase up to 13,043,478 Additional Shares from the Selling Stockholder, transfers or sales of any shares
not sold pursuant to such option.]5
For purposes of this agreement, “immediate
family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin
and “change of control” shall mean the consummation of any bona fide third party tender offer, merger, consolidation
or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of
the Exchange Act), or group of persons, other than the Company or JAB Holdings B.V. or any of its controlled affiliates, becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than 50% of the total voting power of the voting stock of
the Company, occurring after the consummation of the Public Offering, that has been approved by the board of directors of the Company.
The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar
against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.
If the Underwriter waives or terminates any of
the restrictions contained in this agreement (or any such other related agreements) with respect to the securities of any officer or director
of the Company or the Selling Stockholder (each, a “Lock-Up Release” and such stockholder, the “Triggering
Release Party”), the restrictions contained in this agreement (or any such other related agreements) shall be automatically
and concurrently waived or terminated, as applicable, to the same extent and on the same terms with respect to the same pro rata percentage
of securities of the undersigned (other than the Triggering Release Party) as the percentage of Common Stock (or other securities convertible
into or exercisable or exchangeable for Common Stock) being released in the Lock-Up Release represents with respect to the securities
held by the applicable Triggering Release Party; provided that the provisions of this sentence will not apply if (i)(a) the
release, waiver or termination is effected solely to permit a transfer not for consideration that was not otherwise permitted under the
terms of agreement (or any such other related agreements) and (b) the transferee has agreed in writing to be bound by the same terms
described in this agreement (or any such other related agreements) to the extent and for the duration that such terms remain in effect
at the time of such transfer; (ii) the Lock-Up Release is granted in connection with a sale of Common Stock (or other securities
convertible into or exercisable or exchangeable for Common Stock) in an underwritten public offering pursuant to an effective registration
statement filed with the Securities and Exchange Commission, whether or not such registration statement is wholly or partially a secondary
offering of the Company’s Common Stock or (or other securities convertible into or exercisable or exchangeable for Common Stock)
(other than with respect to the Public Offering); provided that the undersigned is offered the opportunity to participate in such sale
and the undersigned is released from its lock-up restrictions set forth herein to the extent of the undersigned’s participation
in such underwritten public offering; or (iii) the Lock-Up Release is granted to one or more individual parties in an aggregate amount
for all such Lock-Up Releases less than or equal to one percent (1%) of the Company’s total outstanding Common Stock (determined
as of immediately following the closing of the Public Offering and assuming conversion, exercise and exchange of all securities convertible
into or exercisable or exchangeable for Common Stock); provided that in the case of directors and officers of the Company, a release
under this clause (iii) shall be granted only due to circumstances of emergency and hardship as determined by the Underwriter in
its sole discretion. In the event that, as a result of this paragraph, any Common Stock (or other securities convertible into or exercisable
or exchangeable for Common Stock) are released from the restrictions imposed by this agreement, the Underwriter shall use commercially
reasonable efforts to notify the Company within two business days of the effective date of such release, provided that the failure
to give such notice shall not give rise to any claim or liability against the Underwriter.
4
The Lock-up agreements signed by the Company’s directors and officers not participating in the offering will include
this carve-out for each such signatory.
5
The Lock-up agreement signed by the Selling Stockholder will include this carve-out.
The undersigned acknowledges and agrees that the
Underwriter has not made any recommendation or provided any investment advice to the undersigned with respect to this agreement or the
subject matter hereof, and the undersigned has consulted its own legal, accounting, financial, regulatory and tax advisors with respect
to this agreement and the subject matter hereof to the extent the undersigned has deemed appropriate.
The undersigned understands that, if (i) the
Underwriter, on the one hand, or the Company, on the other hand, informs the other in writing, prior to the execution of the Underwriting
Agreement, that it has determined not to proceed with the Public Offering; (ii) the Underwriting Agreement does not become effective
by March 15, 2024; or (iii) the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate
or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder; then this agreement shall automatically
terminate and the undersigned shall be released from all obligations under this agreement.
The undersigned understands that the Company and
the Underwriter are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands
that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
This agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal
ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and effective for all purposes.
Whether or not the Public Offering actually occurs
depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company, the Selling Stockholders and the Underwriter.
This agreement shall be governed by and construed
in accordance with the laws of the State of New York.
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Very truly yours, |
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(Name and Title - Print) |
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(Signature) |
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(Address) |
Keurig Dr Pepper (NASDAQ:KDP)
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