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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
March 6, 2024
OMNICOM GROUP INC.
(Exact name of registrant as specified in
its charter)
New York |
|
1-10551 |
|
13-1514814 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
280 Park Avenue, New York, NY |
|
10017 |
(Address
of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (212) 415-3600
Not Applicable
(Former name or former address, if changed
since last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered
pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol |
|
Name of each exchange on
which registered |
Common Stock, par value $0.15 per share |
|
OMC |
|
New York Stock Exchange |
0.800% Senior Notes due 2027 |
|
OMC/27 |
|
New York Stock Exchange |
1.400% Senior Notes due 2031 |
|
OMC/31 |
|
New York Stock Exchange |
2.250% Senior Notes due 2033 |
|
OMC/33 |
|
New York Stock Exchange |
Indicate by check mark
whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter)
or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
☐
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On March 6, 2024,
Omnicom Finance Holdings plc (the “Issuer”), a wholly owned indirect subsidiary of Omnicom Group Inc. (the “Guarantor”),
closed its public offering of €600 million aggregate principal amount of 3.700% Senior Notes due 2032 (the “Notes”),
which are fully and unconditionally guaranteed by the Guarantor. The Notes have been registered under the Securities Act of 1933, as amended,
pursuant to the Issuer’s and the Guarantor’s shelf registration statement on Form S-3 (File No. 333-261046) (the “Registration
Statement”), which became effective upon filing with the Securities and Exchange Commission on November 12, 2021.
The net proceeds
received by the Issuer, after deducting the underwriting discount and estimated offering expenses, were approximately €593.9 million.
The Issuer intends to use such net proceeds for general corporate purposes, which could include working capital expenditures, fixed asset
expenditures, acquisitions, repayment of commercial paper and short-term debt, refinancing of other debt, repurchases of the Guarantor’s
common stock or other capital transactions.
The Notes were issued pursuant to an Indenture,
dated as of March 6, 2024 (the “Base Indenture”), between the Issuer, the Guarantor and Deutsche Bank Trust Company Americas,
as trustee (the “Trustee”), as amended by the First Supplemental Indenture, dated as of March 6, 2024, between the Issuer,
the Guarantor and the Trustee (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
The Notes bear interest from March 6, 2024, at a rate equal to 3.700% per year, payable annually in arrears on March 6 of each year, commencing
on March 6, 2025. The Notes will mature on March 6, 2032.
Subject to certain exceptions, the Indenture contains
covenants limiting the Issuer’s, the Guarantor’s and their subsidiaries’ ability to (i) create certain liens; and (ii)
consolidate or merge with, or convey, transfer or lease substantially all their assets to, another person. The Indenture does not contain
any provision that would limit the Issuer’s or the Guarantor’s ability to incur indebtedness or that would afford holders
of the Notes protection in the event of a sudden and significant decline in the credit quality or rating of the Guarantor or a takeover,
recapitalization or highly leveraged or similar transactions involving the Guarantor.
The Notes and the related guarantee are the unsecured
and unsubordinated obligations of the Issuer and the Guarantor, respectively, and rank equal in right of payment with all existing and
any future unsecured senior and unsubordinated indebtedness of the Issuer and the Guarantor, respectively. The Indenture contains customary
event of default provisions.
Prior to December 6, 2031 (the date that is three
months prior to the maturity date of the Notes), the Notes will be redeemable, as a whole or in part, at the Issuer’s option, at
any time or from time to time at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus a make-whole
premium, together with accrued and unpaid interest thereon, if any, to, but excluding, the redemption date. On or after December 6, 2031,
the Notes will be redeemable, as a whole or in part, at the Issuer’s option, at any time or from time to time at a redemption price
equal to 100% of the principal amount of the Notes to be redeemed, together with accrued and unpaid interest thereon, if any, to, but
excluding, the redemption date.
Upon the occurrence of a “change of control
triggering event,” as defined in the Indenture, with respect to the Notes, unless the Issuer has exercised its option to redeem
the Notes, the Issuer will be required to make an offer to repurchase the Notes at a purchase price equal to 101% of their principal amount,
plus accrued and unpaid interest, if any, to the date of repurchase.
The Guarantor and the Issuer have applied to list
the Notes on The New York Stock Exchange (the “NYSE”). The listing application has been approved by the NYSE.
The foregoing
description of the terms of the Notes, the Base Indenture and First Supplemental Indenture does not purport to be complete and is qualified
in its entirety by reference to the full text of the Notes, the Base Indenture and the First Supplemental Indenture entered into in connection
therewith. The Base Indenture, the First Supplemental Indenture, and the form of the global Note are attached hereto as Exhibit 4.1, Exhibit
4.2 and Exhibit 4.3, respectively, and are incorporated herein by reference. In connection with the offering of the Notes, the Guarantor
is filing certain other exhibits to this Current Report on Form 8-K for the purpose of incorporating them as exhibits to the Registration
Statement and they are also incorporated therein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The information
contained in Item 1.01 is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number |
|
Description |
4.1 |
|
Base Indenture, dated as of March 6, 2024, among Omnicom Finance Holdings plc, as issuer, Omnicom Group Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee |
4.2 |
|
First Supplemental Indenture, dated as of March 6, 2024, among Omnicom Finance Holdings plc, as issuer, Omnicom Group Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee |
4.3 |
|
Form of 3.700% Notes due 2032 (included in Exhibit 4.2) |
5.1 |
|
Opinion of Jones Day |
5.2 |
|
Opinion of Jones Day |
23.1 |
|
Consent of Jones Day (included in Exhibit 5.1 hereof) |
23.2 |
|
Consent of Jones Day (included in Exhibit 5.2 hereof) |
104 |
|
The cover page from this Current Report on Form 8-K, formatted in Inline XBRL. |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
Omnicom Group Inc. |
|
|
|
By: |
/s/
Philip J. Angelastro |
|
Name: |
Philip J. Angelastro |
|
Title: |
Executive Vice President and
Chief Financial Officer |
Date: March 6, 2024
3
Exhibit 4.1
OMNICOM FINANCE HOLDINGS PLC,
as Issuer
OMNICOM GROUP INC.,
as Guarantor
INDENTURE
Dated as of March 6, 2024
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
Debt Securities
Table
of Contents
|
|
Page |
ARTICLE I |
DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
SECTION 1.1 |
Definitions |
1 |
SECTION 1.2 |
Other Definitions |
6 |
SECTION 1.3 |
Incorporation by Reference of Trust Indenture Act |
6 |
SECTION 1.4 |
Rules of Construction |
7 |
ARTICLE II |
THE SECURITIES |
7 |
SECTION 2.1 |
Issuable in Series |
7 |
SECTION 2.2 |
Establishment of Terms of Series of Securities |
7 |
SECTION 2.3 |
Execution and Authentication |
10 |
SECTION 2.4 |
Registrar and Paying Agent |
11 |
SECTION 2.5 |
Paying Agent to Hold Money in Trust |
11 |
SECTION 2.6 |
Securityholder Lists |
12 |
SECTION 2.7 |
Transfer and Exchange |
12 |
SECTION 2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
12 |
SECTION 2.9 |
Outstanding Securities |
13 |
SECTION 2.10 |
Treasury Securities |
14 |
SECTION 2.11 |
Temporary Securities |
14 |
SECTION 2.12 |
Cancellation |
14 |
SECTION 2.13 |
Defaulted Interest |
14 |
SECTION 2.14 |
Global Securities |
14 |
SECTION 2.15 |
CUSIP, ISIN and Common Code Numbers |
17 |
SECTION 2.16 |
Securities Denominated in Foreign Currencies |
17 |
SECTION 2.17 |
Designated Currency |
17 |
ARTICLE III |
REDEMPTION |
18 |
SECTION 3.1 |
Notice to Trustee |
18 |
SECTION 3.2 |
Selection of Securities to be Redeemed |
18 |
SECTION 3.3 |
Notice of Redemption |
18 |
SECTION 3.4 |
Effect of Notice of Redemption |
19 |
SECTION 3.5 |
Deposit of Redemption Price |
19 |
SECTION 3.6 |
Securities Redeemed in Part |
19 |
Table
of Contents
(continued)
|
|
Page |
ARTICLE IV |
COVENANTS |
20 |
SECTION 4.1 |
Payment of Principal and Interest |
20 |
SECTION 4.2 |
SEC Reports |
20 |
SECTION 4.3 |
Compliance Certificate |
20 |
SECTION 4.4 |
Stay, Extension and Usury Laws |
21 |
SECTION 4.5 |
Corporate Existence |
21 |
SECTION 4.6 |
Taxes |
21 |
ARTICLE V |
SUCCESSORS |
21 |
SECTION 5.1 |
When the Company and the Guarantor May Merge, Etc |
21 |
SECTION 5.2 |
Successor Corporation Substituted |
22 |
ARTICLE VI |
DEFAULTS AND REMEDIES |
22 |
SECTION 6.1 |
Events of Default |
22 |
SECTION 6.2 |
Acceleration of Maturity; Rescission and Annulment |
24 |
SECTION 6.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
25 |
SECTION 6.4 |
Trustee May File Proofs of Claim |
26 |
SECTION 6.5 |
Trustee May Enforce Claims Without Possession of Securities |
27 |
SECTION 6.6 |
Application of Money Collected |
27 |
SECTION 6.7 |
Limitation on Suits |
27 |
SECTION 6.8 |
Unconditional Right of Holders to Receive Principal and Interest |
28 |
SECTION 6.9 |
Restoration of Rights and Remedies |
28 |
SECTION 6.10 |
Rights and Remedies Cumulative |
28 |
SECTION 6.11 |
Delay or Omission Not Waiver |
28 |
SECTION 6.12 |
Control by Holders |
29 |
SECTION 6.13 |
Waiver of Past Defaults |
29 |
SECTION 6.14 |
Undertaking for Costs |
29 |
ARTICLE VII |
TRUSTEE |
30 |
SECTION 7.1 |
Duties of Trustee |
30 |
SECTION 7.2 |
Rights of Trustee |
31 |
SECTION 7.3 |
Individual Rights of Trustee |
32 |
Table
of Contents
(continued)
SECTION 7.4 |
Trustee’s Disclaimer |
32 |
SECTION 7.5 |
Notice of Defaults |
32 |
SECTION 7.6 |
Reports by Trustee to Holders |
32 |
SECTION 7.7 |
Compensation and Indemnity |
33 |
SECTION 7.8 |
Replacement of Trustee |
33 |
SECTION 7.9 |
Successor Trustee by Merger, Etc |
34 |
SECTION 7.10 |
Eligibility; Disqualification |
34 |
SECTION 7.11 |
Preferential Collection of Claims |
35 |
ARTICLE VIII |
SATISFACTION AND DISCHARGE; DEFEASANCE |
35 |
SECTION 8.1 |
Satisfaction and Discharge of Indenture |
35 |
SECTION 8.2 |
Application of Trust Funds; Indemnification |
36 |
SECTION 8.3 |
Legal Defeasance of Securities of any Series |
36 |
SECTION 8.4 |
Covenant Defeasance |
38 |
SECTION 8.5 |
Repayment to the Company |
39 |
SECTION 8.6 |
Reinstatement |
39 |
ARTICLE IX |
AMENDMENTS AND WAIVERS |
40 |
SECTION 9.1 |
Without Consent of Holders |
40 |
SECTION 9.2 |
With Consent of Holders |
41 |
SECTION 9.3 |
Compliance with Trust Indenture Act |
42 |
SECTION 9.4 |
Revocation and Effect of Consents |
42 |
SECTION 9.5 |
Notation on or Exchange of Securities |
42 |
SECTION 9.6 |
Trustee Protected |
42 |
ARTICLE X |
MISCELLANEOUS |
43 |
SECTION 10.1 |
Trust Indenture Act Controls |
43 |
SECTION 10.2 |
Notices |
43 |
SECTION 10.3 |
Communication by Holders with Other Holders |
44 |
SECTION 10.4 |
Certificate and Opinion as to Conditions Precedent |
44 |
SECTION 10.5 |
Statements Required in Certificate or Opinion |
44 |
SECTION 10.6 |
Rules by Trustee and Agents |
45 |
SECTION 10.7 |
Legal Holidays |
45 |
Table
of Contents
(continued)
|
|
Page |
SECTION 10.8 |
No Recourse Against Others |
45 |
SECTION 10.9 |
Counterparts |
45 |
SECTION 10.10 |
Governing Laws |
46 |
SECTION 10.11 |
No Adverse Interpretation of Other Agreements |
46 |
SECTION 10.12 |
Successors |
46 |
SECTION 10.13 |
Severability |
46 |
SECTION 10.14 |
Table of Contents, Headings, Etc |
46 |
SECTION 10.15 |
USA Patriot Act |
46 |
SECTION 10.16 |
Force Majeure |
46 |
SECTION 10.17 |
Consent to Jurisdiction; Service of Process; and Waiver of Jury Trial |
47 |
ARTICLE XI |
SINKING FUNDS |
48 |
SECTION 11.1 |
Applicability of Article |
48 |
SECTION 11.2 |
Satisfaction of Sinking Fund Payments with Securities |
48 |
SECTION 11.3 |
Redemption of Securities for Sinking Fund |
48 |
ARTICLE XII |
GUARANTEE OF SECURITIES |
49 |
SECTION 12.1 |
Guarantee |
49 |
ARTICLE XIII |
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS |
53 |
SECTION 13.1 |
Redemption Upon Changes in Withholding Taxes |
53 |
SECTION 13.2 |
Payment of Additional Amounts |
54 |
CROSS-REFERENCE
TABLE*
Trust Indenture Act Section |
|
Indenture Section |
310 |
(a)(1) |
|
7.10 |
|
(a)(2) |
|
7.10 |
|
(a)(3) |
|
Not Applicable |
|
(a)(4) |
|
Not Applicable |
|
(a)(5) |
|
7.10 |
|
(b) |
|
7.10 |
311 |
(a) |
|
7.11 |
|
(b) |
|
7.11 |
312 |
(a) |
|
2.6 |
|
(b) |
|
10.3 |
|
(c) |
|
10.3 |
313 |
(a) |
|
7.6 |
|
(b)(1) |
|
7.6 |
|
(b)(2) |
|
7.6 |
|
(c) |
|
7.6 |
|
(d) |
|
7.6 |
314 |
(a) |
|
4.2, 10.5 |
|
(b) |
|
Not Applicable |
|
(c)(1) |
|
10.4 |
|
(c)(2) |
|
10.4 |
|
(c)(3) |
|
Not Applicable |
|
(d) |
|
Not Applicable |
|
(e) |
|
10.5 |
|
(f) |
|
Not Applicable |
315 |
(a) |
|
7.1 |
|
(b) |
|
7.5 |
|
(c) |
|
7.1 |
|
(d) |
|
7.1 |
|
(e) |
|
6.14 |
316 |
(a) |
|
2.10 |
|
(a)(1)(A) |
|
6.12 |
|
(a)(1)(B) |
|
6.13 |
|
(b) |
|
6.8 |
317 |
(a)(1) |
|
6.3 |
|
(a)(2) |
|
6.4 |
|
(b) |
|
2.5 |
318 |
(a) |
|
10.1 |
| * | Note: This Cross-Reference Table is not part of the Indenture. |
INDENTURE dated as of March 6, 2024 among OMNICOM
FINANCE HOLDINGS PLC, a public limited company organized under the laws of England and Wales (the “Company”), OMNICOM GROUP
INC., a New York corporation (the “Guarantor”), and Deutsche Bank Trust Company Americas, a New York banking corporation,
as Trustee (“Trustee”).
Each of the Company and the Guarantor has duly
authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Company’s debentures,
notes or other evidences of indebtedness to be issued in one or more series (the “Securities”), to be fully and unconditionally
guaranteed by the Guarantor, as herein provided, up to such principal amount as may from time to time be authorized in or pursuant to
one or more resolutions of the Company’s Board of Directors or by supplemental indenture.
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE
I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1
Definitions.
“Additional Amounts” has the
meaning set forth in Section 13.2.
“Affiliate” of any specified
person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such
specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly, or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent” means any Registrar
or Paying Agent.
“Agent for Service” has the
meaning set forth in Section 10.17.
“Board of Directors” means the
board of directors of the Company or any duly authorized committee of such board of directors.
“Board Resolution” means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by its Board of Directors
or pursuant to authorization by its Board of Directors and to be in full force and effect on the date of the certificate (and delivered
to the Trustee, if appropriate).
“Business Day” means, unless
otherwise provided by Board Resolution, Officer’s Certificate of the Company or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York or in the City of London on which banking institutions are
authorized or required by law, regulation or executive order to close.
“Code” means the U.S. Internal
Revenue Code of 1986, as amended.
“Company” means the party named
as such above until a successor replaces it pursuant to this Indenture and thereafter means the successor.
“Company Request” or “Company
Order” means a written request or order signed in the name of the Company by its Principal Financial Officer, a President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary, an Assistant Secretary or any Director, and delivered to
the Trustee.
“Corporate Trust
Office” means the designated corporate trust office of the Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution of this Indenture is located at (i) for purposes of surrender, transfer
or exchange of any Security, Deutsche Bank Trust Company Americas, c/o DB Services Americas, Inc., 5022 Gate Parkway, Suite 200, Jacksonville,
FL 32256, Attn: Transfer Department and (ii) for all other purposes, Deutsche Bank Trust Company Americas, Trust and Agency Services,
1 Columbus Circle, 17th Floor, Mail Stop: NYC01-1710, New York, NY 10019, USA, Attention: Corporates Team/Omnicom AA6238 or at any other
time at such other address as the Trustee may designate from time to time by notice to the parties hereto or at the designated corporate
trust office of any successor Trustee as to which such successor Trustee may notify the parties hereto in writing.
“Currency” means Dollars or
Foreign Currency.
“Debt” of any person as of any
date means, without duplication, all indebtedness of such person in respect of borrowed money, including all interest, fees and expenses
owed in respect thereto (whether or not the recourse of the lender is to the whole of the assets of such person or only to a portion thereof),
or evidenced by bonds, notes, debentures or similar instruments.
“Default” means any event which
is, or with the passage of time or giving of notice or both would be, an Event of Default.
“Depository” means, unless otherwise
provided in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate of the Company, with respect to the
Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, one or more of The Depository
Trust Company, New York, New York, Euroclear Bank S.A./N.V., Clearstream Banking, S.A., Luxembourg, another clearing agency, or any successor
registered as a clearing agency under the Exchange Act, or any other applicable U.S. or foreign statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section 2.2.
“Designated Currency” has the
meaning set forth in Section 2.15.
“Discount Security” means any
Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.2.
“Dollars” means the currency
of The United States of America.
“Dollar Equivalent” means with
respect to any monetary amount in a Currency other than Dollars, at any time for the determination thereof, the amount of Dollars obtained
by converting such Foreign Currency involved in such computation into Dollars at the spot rate for the purchase of Dollars with the applicable
Foreign Currency as published in The Wall Street Journal in the “Exchange Rates” column under the heading “Currency
Trading” on the date two Business Days prior to such determination.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended from time to time.
“Foreign Currency” means a currency,
currency unit or composite currency, including the euro, issued by the government of one or more countries other than the United States
or by any recognized confederation or association of such governments or a composite currency the value of which is determined by reference
to the values of the currencies of any group of countries.
“Foreign Government Obligations”
means, when used in relation to Securities denominated in a Foreign Currency, securities that are (i) a direct obligation of the government
that issued such currency for the payment of which full faith and credit of such government is pledged or, with respect to Securities
of any Series which are denominated in euro, a direct obligation of any member nation of the European Union for the payment of which obligation
the full faith and credit of the respective nation is pledged so long as such nation has a credit rating at least equal to that of the
highest rated member nation of the European Economic Area or (ii) an obligation of a person controlled or supervised by and acting as
an agency or instrumentality for such government, the payment of which is unconditionally guaranteed as a full faith and credit obligation
by such government, which, in either case, are not callable or redeemable at the option of the issuer thereof and shall also include a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Foreign
Government Obligation or a specific payment of principal of or interest on any such Foreign Government Obligation held by such custodian
for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect
of the Foreign Government Obligation or the specific payment of principal of or interest on the Foreign Government Obligation evidenced
by such depositary receipt.
“Global Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all
or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in the name of such Depository
or nominee.
“Guarantee” means the full and
unconditional guarantee by the Guarantor of the Company’s obligations under any Security of any applicable Series under this Indenture.
“Guarantor” means the party
named as such above, any other person identified pursuant to Section 2.2.18 of this Indenture as providing a Guarantee of any of the Company’s
obligations under this Indenture, and their respective successors and assigns.
“Holder” or “Securityholder”
means a person in whose name a Security is registered.
“Indenture” means this Indenture
as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities established as contemplated
hereunder.
“interest” when used with respect
to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed
in such Discount Security.
“interest payment date” when
used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Maturity,” when used with respect
to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal
becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption,
notice of option to elect repayment or otherwise.
“Officer” means the Chairman
of the Board, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, any Vice-President, the Treasurer,
the Secretary, any Assistant Treasurer, any Assistant Secretary or any Director of the Company or the Guarantor, as applicable.
“Officer’s Certificate”
means a certificate signed by any Officer of the Company or the Guarantor, as applicable.
“Opinion of Counsel” means a
written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company or the
Guarantor.
“person” means any individual,
corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“principal” of a Security means
the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.
“record date” as used with respect
to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified
as such in the terms of the Registered Securities of such series established, or, if no such date is so established, the fifteenth day
next preceding such interest payment date, whether or not such record date is a Business Day.
“Responsible Officer” means
any officer of the Trustee in its Corporate Trust Office having direct responsibility for the administration of this Indenture, and also
means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with a particular subject.
“SEC” means the U.S. Securities
and Exchange Commission.
“Securities” means the debentures,
notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Securities Act” means the Securities
Act of 1933, as amended from time to time.
“Series” or “Series
of Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections
2.1 and 2.2 hereof.
“Significant Subsidiary” means
(i) any direct or indirect Subsidiary of the Guarantor that would be a “significant subsidiary” as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date hereof, or (ii) any group
of direct or indirect Subsidiaries of the Guarantor that, taken together as a group, would be a “significant subsidiary” as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the
date hereof.
“Stated Maturity” when used
with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” of any person means
any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding voting stock of such person, (b) the interest in the capital or profits of such limited liability company, partnership
or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such
person, by such person and one or more of its other Subsidiaries or by one or more of such person’s other Subsidiaries.
“Taxes” has the meaning set
forth in Section 13.2.
“Taxing Jurisdiction” has the
meaning set forth in Section 13.1.
“TIA” means the Trust Indenture
Act of 1939 (15 U.S. Code ss. ss. 77aaa-77bbbb), as amended from time to time, and as in effect on the date of this Indenture; provided,
however, that in the event the TIA is amended after such date, “TIA” means, to the extent required by any such amendment,
the Trust Indenture Act as so amended.
“Trustee” means the person named
as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to this
Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee hereunder, and if at any time
there is more than one such person, “Trustee” as used with respect to the Securities of any Series shall mean the Trustee
with respect to Securities of that Series.
“U.S. Government Obligations”
means securities which are (i) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, and
which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depositary
receipt.
SECTION 1.2
Other Definitions.
Term |
Defined in Section |
“Bankruptcy Code” |
12.1.3 |
“Bankruptcy Law” |
6.1 |
“Custodian” |
6.1 |
“Event of Default” |
6.1 |
“Guaranteed Obligations” |
12.1.1 |
“Legal Holiday” |
10.7 |
“mandatory sinking fund payment” |
11.1 |
“optional sinking fund payment” |
11.1 |
“Paying Agent” |
2.4 |
“Registrar” |
2.4 |
“successor person” |
5.1 |
“Taxes” |
13.2 |
“Taxing Jurisdiction” |
13.1 |
SECTION 1.3
Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture security holder” means a Securityholder. “indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional
trustee” means the Trustee.
“obligor” on the Securities means the
Company, the Guarantor and any successor obligor upon the Securities.
All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein
are used herein as so defined.
SECTION 1.4
Rules of Construction. Unless the context otherwise requires:
(a)
a term has the meaning assigned to it;
(b)
an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
(c)
references to “generally accepted accounting principles” shall mean generally accepted accounting principles in effect
as of the time when and for the period as to which such accounting principles are to be applied;
(d)
“or” is not exclusive;
(e)
words in the singular include the plural, and in the plural include the singular;
(f)
for purposes of the covenants and definitions set forth in this Indenture, amounts stated in Dollars shall be deemed to include
both Dollars and Dollar Equivalents; and
(g)
provisions apply to successive events and transactions.
ARTICLE
II
THE SECURITIES
SECTION 2.1
Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture
is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth
in a Board Resolution, a supplemental indenture or an Officer’s Certificate of the Company detailing the adoption of the terms thereof
pursuant to the authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the
Board Resolution, Officer’s Certificate of the Company or supplemental indenture may provide for the method by which specified terms
(such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits
of the Indenture.
SECTION 2.2
Establishment of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the following
shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or
as to the Series generally in the case of Subsections 2.2.2 through 2.2.23) by a Board Resolution, a supplemental indenture or an Officer’s
Certificate of the Company pursuant to authority granted under a Board Resolution:
2.2.1
the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
2.2.2
the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
2.2.3
any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.5);
2.2.4
the date or dates on which the principal of the Securities of the Series is payable;
2.2.5
the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates
(including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the
Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such
interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
2.2.6
the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, or the method
of such payment, if by wire transfer, mail or other means;
2.2.7
if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities
of the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8
the obligation, if any, of the Company to redeem, purchase or repay the Securities of the Series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof upon the happening of any event and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed, purchased or repaid, in whole
or in part, pursuant to such obligation;
2.2.9
the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at
the option of the Holders thereof and other detailed terms and conditions of such repurchase obligations;
2.2.10
if other than minimum denominations of $200,000 and multiples of $1,000 in excess thereof, the minimum denominations in which the
Securities of the Series shall be issuable;
2.2.11
whether the Securities will be issuable as Global Securities, the terms and conditions, if any, upon which such Global Security
may be exchanged in whole or in part for other individual Securities of such Series in definitive registered form, the Depository for
such Global Security and the form of any legend or legends to be borne by any such Global Security in addition to or in lieu of the legend
referred to in Section 2.14.3;
2.2.12
if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13
the manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined,
if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;
2.2.14
any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.15
any addition to or change in the covenants set forth in Articles IV, V or XII which applies to Securities of the Series;
2.2.16
any other terms of the Securities of the Series (which terms shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 9.1, but which may modify or delete any provision of this Indenture insofar as it applies to such Series);
2.2.17
any depositories, interest rate calculation agents, or other agents with respect to Securities of such Series if other than those
appointed herein;
2.2.18
the form and terms of the Guarantee, including any corresponding changes to the provisions of this Indenture as then in effect;
2.2.19
the provisions relating to any security provided for the Securities of the Series;
2.2.20
the subordination, if any, of the Securities of the Series pursuant to this Indenture and any changes or additions to the provisions
of this Indenture then in effect;
2.2.21
if and as applicable, the terms and conditions of any right to exchange for or convert Securities of the Series into shares of
common stock of the Guarantor;
2.2.22
any listing on a securities exchange; and
2.2.23
the Currency or Currencies in which payment of the principal of, premium, if any, and interest on, Securities of the Series shall
be payable.
All Securities of any one Series need not be issued
at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture or Officer’s Certificate of the Company referred to above, and the authorized principal
amount of any Series may not be increased to provide for issuances of additional Securities of such Series, unless otherwise provided
in such Board Resolution, supplemental indenture or Officer’s Certificate of the Company.
The Securities of each Series shall be in substantially
the form set forth in Exhibit A to this Indenture, or in such other form as shall be established by or pursuant to a Board Resolution
or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistent herewith, be
determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the form of Securities of
any Series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 2.3 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities,
as evidenced by their execution of such Securities.
SECTION 2.3
Execution and Authentication. Two Officers shall sign the Securities for the Company by manual, facsimile or electronic
signature.
If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated
by the manual or electronic signature of the Trustee or an authenticating agent.
The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time, and from time to
time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto
or Officer’s Certificate of the Company, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication
and delivery pursuant to electronic instructions in writing from the Company or its duly authorized agent or agents. Each Security shall
be dated the date of its authentication.
The aggregate principal amount of Securities of
any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution,
supplemental indenture hereto or Officer’s Certificate of the Company delivered pursuant to Section 2.2, except as provided in Section
2.8.
Prior to the issuance of Securities of any Series,
the Trustee shall have received and (subject to Section 7.1) shall be fully protected in relying on: (a) the Board Resolution, supplemental
indenture hereto or Officer’s Certificate of the Company establishing the form of the Securities of that Series or of Securities
within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s Certificate
of the Company complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to
authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may
not lawfully be taken; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee
of directors and/or vice-presidents shall determine that such action would expose the Trustee to personal liability to Holders of any
then outstanding Series of Securities.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, the Guarantor or an Affiliate of either of them.
SECTION 2.4
Registrar and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or
surrendered for payment (“Paying Agent”) and where Securities of such Series may be surrendered for registration of transfer
or exchange (“Registrar”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer
and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address,
of each Registrar or Paying Agent. If at any time the Company shall fail to maintain any such required Registrar or Paying Agent or shall
fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate
one or more co-registrars or additional paying agents and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar and Paying Agent in
each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar or additional paying
agent. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying
agent.
The Company hereby appoints the Trustee as the
initial Registrar, Paying Agent and custodian of Global Securities for the Depository for each Series unless another Registrar, Paying
Agent or custodian of Global Securities for the Depository, as the case may be, is appointed prior to the time Securities of that Series
are first issued.
SECTION 2.5
Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing
that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held
by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default
by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee.
The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company, the Guarantor
or a Subsidiary of either of them) shall have no further liability for the money. If the Company, the Guarantor or a Subsidiary of either
of them acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of
Securities all money held by it as Paying Agent.
SECTION 2.6
Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA ss. 312(a).
If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and
at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require,
of the names and addresses of Securityholders of each Series of Securities.
SECTION 2.7
Transfer and Exchange. Where Securities of a Series are presented to the Registrar or a co- registrar with a request to
register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the
transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer
or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable
upon exchanges pursuant to Sections 2.11, 3.6 or 9.5).
None of the Company, the Guarantor or the Registrar
shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening
of business fifteen days immediately preceding the mailing or electronic delivery of a notice of redemption of Securities of that Series
selected for redemption and ending at the close of business on the day of such mailing or electronic delivery, or (b) to register the
transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed
of any such Securities selected, called or being called for redemption in part.
SECTION 2.8
Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as
may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company or the Guarantor in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the
Company and the Guarantor, as applicable, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series
duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
SECTION 2.9
Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the
Trustee in accordance with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8,
it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a protected purchaser.
Additionally, if a Security is paid pursuant to Section 2.8, it ceases to be outstanding.
If the Paying Agent (other than the Company, the
Guarantor, a Subsidiary of either of them or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest
on them ceases to accrue unless otherwise provided by a Board Resolution, a supplemental indenture or an Officer’s Certificate of
the Company with respect to any Series.
A Security does not cease to be outstanding because
the Company, the Guarantor or an Affiliate of either of them holds the Security.
In determining whether the Holders of the requisite
principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.2.
SECTION 2.10
Treasury Securities. In determining whether the Holders of the required principal amount of Securities of a Series have
concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company, the
Guarantor or an Affiliate of either of them shall be disregarded, except that for the purposes of determining whether the Trustee shall
be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities of a Series that
a responsible officer in the Corporate Trust Office of the Trustee knows are so owned shall be so disregarded.
SECTION 2.11
Temporary Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall
prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of maturity in exchange for
temporary Securities. Until so exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.
SECTION 2.12
Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward
to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of such canceled Securities
in accordance with its customary procedures (subject to the record retention requirement of the Exchange Act) and upon written instruction
from the Company deliver a certificate of such destruction to the Company, unless the Company otherwise directs. The Company may not issue
new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
SECTION 2.13
Defaulted Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted
interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders
of the Series on a subsequent special record date. The Company shall fix the record date and payment date. At least 30 days before the
record date, the Company shall mail or electronically deliver to the Trustee and to each Securityholder of the Series a notice that states
the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
SECTION 2.14
Global Securities.
2.14.1
General; Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate of the
Company shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities
and the Depository for such Global Security or Securities. If the Company shall establish that the Securities of a particular Series are
to be issued as a Global Security, then the Company shall execute one or more Global Securities that (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, all of the outstanding Securities of such Series, (ii) shall be registered
in the name of the Depository or its nominee and (iii) shall be delivered to the Trustee as custodian for the Depository or otherwise
delivered pursuant to the Depository’s instruction, and the Trustee, in accordance with Section 2.3, shall authenticate such Global
Security or Global Securities.
2.14.2
Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of
Holders other than the Depository for such Security or its nominee only if (i) such Depository notifies the Company that it is unwilling
or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a clearing agency registered
under the Exchange Act or any other applicable U.S. or foreign statute or regulation, and, in either case, the Company fails to appoint
a successor Depository within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officer’s Certificate
to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented
by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global
Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository,
by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such a successor Depository.
The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any Agent shall have any
responsibility or liability for any actions taken or not taken by the Depository.
2.14.3
Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form: “THIS GLOBAL
SECURITY IS HELD BY THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY
FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE ANY SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.7 OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR TO ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED
IN THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO SUCH ENTITY
AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.”
2.14.4
Acts of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the
Indenture.
2.14.5
Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section
2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6
Consents, Declaration and Directions. Except as provided in Section 2.14.4, the Company, the Guarantor, the Trustee and
any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global
Security as shall be specified in a written statement of the Depository with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture. Notwithstanding the
foregoing, prior to the due presentation for registration of transfer of any Security, the Company, the Guarantor, the Trustee and the
Agents may deem and treat the person in whose name a Security is registered as the owner of such Security for the purpose of receiving
payment of principal of, premium, if any, and interest on such Security and for all other purposes whatsoever (except for purposes of
obtaining any consents, declarations, waivers or directions) including the transfer or exchange of such Security, whether or not such
Security is overdue, and none of the Company, the Guarantor, the Trustee or the Agents shall be affected by notice to the contrary.
SECTION 2.15
CUSIP, ISIN and Common Code Numbers. The Company in issuing the Securities may use CUSIP, ISIN and/or Common Code numbers
(if then generally in use), and, if so, the Trustee shall use CUSIP, ISIN and/or Common Code numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification
printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee in writing of any change in the CUSIP, ISIN and/or Common Code numbers.
SECTION 2.16
Securities Denominated in Foreign Currencies. Except as otherwise specified pursuant to Section 2.2 for Securities of any
Series, payment of the principal of, premium, if any, and interest on, Securities of such Series denominated in any Foreign Currency will
be made in such Foreign Currency.
In the event any Foreign Currency or Currencies
in which any payment with respect to any Series of Securities may be made ceases to be a freely convertible Currency on United States
Currency markets, for any date thereafter on which payment of principal of, premium, if any, or interest on the Securities of a Series
is due, the Company shall select the Currency of payment for use on such date, all as provided in the Securities of such Series, in a
Board Resolution, a supplemental indenture or an Officer’s Certificate. In such event, the Company shall notify the Trustee of the
Currency which it has selected to constitute the funds necessary to meet the Company’s obligations on such payment date and of the
amount of such Currency to be paid. Such amount shall be determined as provided in the Securities of such Series, in a Board Resolution,
a supplemental indenture or an Officer’s Certificate of the Company. The payment with respect to such payment date shall be deposited
with the Trustee or the Paying Agent by the Company or the Guarantor solely in the Currency so selected.
SECTION 2.17
Designated Currency. The Company may provide pursuant to Section 2.2 for Securities of any Series that:
(a)
the obligation, if any, of the Company to pay the principal of, premium, if any, and interest on the Securities of any Series in
a Foreign Currency or Dollars (the “Designated Currency”) as may be specified pursuant to Section 2.2.23 is of the essence
and agrees that, to the fullest extent possible under applicable law, judgments in respect of Securities of such Series shall be given
in the Designated Currency;
(b)
the obligation of the Company to make payments in the Designated Currency of the principal of, premium, if any, and interest on
such Securities shall be discharged, notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise),
only to the extent of the amount in the Designated Currency that the Securityholder receiving such payment, in accordance with normal
banking procedures, may purchase with the amount paid in such other Currency after any premium and cost of exchange on the business day
in the country of issue of the Designated Currency or in the international banking community immediately following the day on which such
Securityholder receives such payment;
(c)
if the amount in the Designated Currency that may be so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and
(d)
any obligation of the Company not discharged by such payment shall be due as a separate and independent obligation and, until discharged
as provided herein, shall continue in full force and effect.
ARTICLE
III
REDEMPTION
SECTION 3.1
Notice to Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series
of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such
time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated
to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, the Company
shall notify the Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give
the notice at least 45 days before the redemption date (or such shorter notice as may be acceptable to the Trustee).
SECTION 3.2
Selection of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officer’s Certificate of the Company, if less than all the Securities of a Series are to be redeemed, the Trustee
shall select the Securities of the Series to be redeemed in any manner in accordance with the procedures of the Depository. The Trustee
shall make the selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities of the Series that have denominations larger than $200,000. Securities of the Series and portions
of them it selects shall be in amounts of $200,000 or multiples of $1,000 in excess thereof or, with respect to Securities of any Series
issuable in other denominations or other Currencies pursuant to Section 2.2.10 and Section 2.2.23, respectively, the minimum principal
denomination for each Series and integral multiples thereof and the applicable Currency for such Series. Provisions of this Indenture
that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
SECTION 3.3
Notice of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto
or an Officer’s Certificate of the Company, at least 15 days but not more than 60 days before a redemption date, the Company shall
mail a notice of redemption by first-class mail (or deliver such notice electronically in accordance with the procedures of the Depository)
to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of the
Series to be redeemed and shall state:
(a)
the redemption date;
(b)
the redemption price;
(c)
if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after
the redemption date upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion
shall be issued upon cancellation of the original Security;
(d)
the name and address of the Paying Agent;
(e)
that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f)
that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date;
(g)
the CUSIP, ISIN or Common Code numbers, if any, printed on the Securities being redeemed;
and
(h)
any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request and upon its provision
of such notice information, the Trustee shall give the notice of redemption in the Company’s name and at its expense.
SECTION 3.4
Effect of Notice of Redemption. Once notice of redemption is mailed or delivered electronically as provided in Section 3.3,
Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption
may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest
to the redemption date. On and after the redemption date, interest will cease to accrue on the Securities or any portion of the Securities
called for redemption (unless the Company defaults in the payment of the redemption price and accrued interest).
SECTION 3.5
Deposit of Redemption Price. On or before 10:00 a.m. New York City time (or such other time as may be specified pursuant
to Section 2.2 with respect to any Security denominated in a Foreign Currency) on the redemption date, the Company or the Guarantor shall
deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed
on that date.
SECTION 3.6
Securities Redeemed in Part. Upon surrender of a certificated Security that is redeemed in part, the Trustee shall authenticate
for the Holder a new certificated Security of the same Series and the same maturity equal in principal amount to the unredeemed portion
of the certificated Security surrendered.
ARTICLE
IV
COVENANTS
SECTION 4.1
Payment of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that the Company will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with
the terms of such Securities and this Indenture. Any amounts to be given to the Trustee or Paying Agent, shall be deposited with the Trustee
or Paying Agent by 10:00 a.m., New York City time (or such other time as may be specified pursuant to Section 2.2 with respect to any
Security denominated in a Foreign Currency), by the Company or the Guarantor. Such payments shall be considered made on the date due if
on such date the Trustee or the Paying Agent holds, in accordance with this Indenture, money sufficient to make all payments with respect
to such Securities then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders
on that date pursuant to the terms of this Indenture.
SECTION 4.2
SEC Reports. The Guarantor shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual
reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules
and regulations prescribe) which the Guarantor is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company and the Guarantor also shall comply with the other provisions of TIA ss. 314(a). For the avoidance of doubt, the Guarantor will
be deemed to have furnished such reports referred to above to the Trustee and the Holders, as applicable, if the Guarantor has filed such
reports with the SEC via its Electronic Data Gathering, Analysis and Retrieval (EDGAR) System filing system (or any successor system thereto)
and such reports are publicly available. The Guarantor will notify the Trustee of the filing by email or otherwise.
Delivery of such reports, information and documents
to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained therein, including the Company’s or the Guarantor’s
compliance with any of their covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s
Certificate).
SECTION 4.3
Compliance Certificate. The Company and the Guarantor shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officer’s Certificate signed by one of the principal executive, financial or accounting officers
of the Company and the Guarantor, stating that a review of the activities of the Company, the Guarantor and their respective Subsidiaries
during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company
and the Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his or her knowledge the Company and the Guarantor have kept, observed, performed
and fulfilled each and every covenant contained in this Indenture and are not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events
of Default of which he or she may have knowledge).
The Company will, so long as any of the Securities
are outstanding, deliver in writing to a Responsible Officer of the Trustee, within 10 Business Days after becoming aware of any Default
or Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the
Company has taken, is taking or proposes to take with respect thereto.
SECTION 4.4
Stay, Extension and Usury Laws. The Company and the Guarantor covenant (to the extent that they may lawfully do so) that
they will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture,
the Guarantee or the Securities; and the Company and the Guarantor (to the extent they may lawfully do so) hereby expressly waive all
benefit or advantage of any such law and covenant that they will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been
enacted.
SECTION 4.5
Corporate Existence. Subject to Article V, the Company and the Guarantor will do or cause to be done all things necessary
to preserve and keep in full force and effect their corporate existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each Significant Subsidiary and the rights (charter and statutory),
licenses and franchises of the Company, the Guarantor and the Significant Subsidiaries; provided, however, that the Company and the Guarantor
shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, if the Company’s Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company, the Guarantor and their respective Subsidiaries taken as a whole and that the loss thereof is not adverse
in any material respect to the Holders.
SECTION 4.6
Taxes. The Company and the Guarantor shall, and the Guarantor shall cause, its Significant Subsidiaries to, pay prior to
delinquency all material taxes, assessments and governmental levies, except as contested in good faith and by appropriate proceedings.
ARTICLE
V
SUCCESSORS
SECTION 5.1
When the Company and the Guarantor May Merge, Etc. The Company and the Guarantor shall not consolidate with or merge into,
or convey, transfer or lease all or substantially all of their respective properties and assets to, any person (a “successor person”),
except in the case of the Company with, into or to the Guarantor or any other Subsidiary of the Guarantor (provided that the successor
person (if any) expressly assumes by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the Company’s obligations on the Securities and under this Indenture), unless:
(a)
either (i) the Company or the Guarantor, as applicable, is the successor person or (ii) the successor person is a corporation,
partnership, trust or other entity organized and validly existing under the laws of (1) in the case of the Company, the United Kingdom,
any member country of the European Union or any U.S. domestic jurisdiction or (2) in the case of the Guarantor, any U.S. domestic jurisdiction;
(b)
the successor person expressly assumes by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, (i) in the case of the Company, the Company’s obligations on the Securities and under this Indenture or (ii) in
the case of the Guarantor, the Guarantor’s obligations with respect to its Guarantee of the Securities and under this Indenture;
and
(c)
immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company or the Guarantor, as applicable, shall
deliver to the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such supplemental indenture comply with this Indenture.
For purposes of the foregoing, the conveyance,
transfer or lease of the properties and assets of one or more Subsidiaries of the Company or the Guarantor, as applicable (other than
to the Guarantor or any other Subsidiary of the Guarantor), which, if such assets were owned by the Company or the Guarantor, as applicable,
would constitute all or substantially all of the properties and assets of the Company or the Guarantor, as applicable, shall be deemed
to be the transfer of all or substantially all of the properties and assets of the Company or the Guarantor, as applicable, but a bona
fide pledge or hypothecation will be deemed not to be prohibited by this Indenture.
SECTION 5.2
Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition
of all or substantially all of the assets of the Company or the Guarantor, as applicable, in accordance with Section 5.1, the successor
corporation formed by such consolidation or into or with which the Company or the Guarantor, as applicable, is merged or to which such
sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power
of, the Company or the Guarantor, as applicable, under this Indenture with the same effect as if such successor person has been named
as the Company or the Guarantor, as applicable, herein; provided, however, that the predecessor Company or the Guarantor, as applicable,
in the case of a sale, lease, conveyance or other disposition shall not be released from the obligation to pay the principal of and interest,
if any, on the Securities. The Company or the Guarantor, as applicable, the Trustee and the successor person shall enter into a supplemental
indenture to evidence the succession and substitution of such successor person and such discharge and release of the Company or the Guarantor,
as applicable.
ARTICLE
VI
DEFAULTS AND REMEDIES
SECTION 6.1
Events of Default.
“Event of Default,” wherever used herein
with respect to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental
indenture or Officer’s Certificate of the Company, it is provided that such Series shall not have the benefit of said Event of Default:
(a)
default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of such payment is deposited by the Company or the Guarantor with the Trustee
or with a Paying Agent prior to the expiration of such period of 30 days); or
(b)
default in the payment of the principal, other than a scheduled installment payment, or premium, if any, of any Security of that
Series when such payment becomes due and payable, at its Maturity, upon redemption, by acceleration or otherwise; or
(c)
default in the deposit of any sinking fund payment, when as due in respect of any Security of that Series; or
(d)
default in the performance or breach of any covenant or warranty of the Company or the Guarantor in this Indenture (other than
a covenant or warranty that has been included in this Indenture solely for the benefit of a Series of Securities other than that Series),
which default continues uncured for a period of 60 days after there has been given, by registered or certified mail, to the Company and
the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount
of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(e)
(A) the Company’s or the Guarantor’s failure to make any payment by the end of any applicable grace period after maturity
of their respective indebtedness, which term as used in this clause (e) means obligations (other than nonrecourse obligations) of the
Company or the Guarantor for borrowed money or evidenced by bonds, debentures, notes or similar instruments in an amount (taken together
with amounts in (B)) in excess of $100 million and continuance of such failure, or (B) the acceleration of their respective indebtedness
in an amount (taken together with the amounts in (A)) in excess of $100 million because of a default with respect to such indebtedness
without such indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled in case of (A)
or (B) above, for a period of 30 days after written notice to the Company and the Guarantor by the Trustee or to the Company, the Guarantor
and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Securities of that Series; however, if
any such failure or acceleration referred to in (A) or (B) above shall cease or be cured or be waived, rescinded or annulled in accordance
with the terms of the applicable indebtedness, then the Event of Default by reason thereof shall be deemed not to have occurred;
(f)
the Company, the Guarantor or any of the Significant Subsidiaries pursuant to or within the meaning of any Bankruptcy Law:
(i)
commences a voluntary case,
(ii)
consents to the entry of an order for relief against it in an involuntary case,
(iii)
consents to the appointment of a Custodian of it or for all or substantially all of its property, or
(iv)
makes a general assignment for the benefit of its creditors;
(g)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i)
is for relief against the Company, the Guarantor or any of the Significant Subsidiaries in an involuntary case,
(ii)
appoints a Custodian of the Company, the Guarantor or any of the Significant Subsidiaries or for all or substantially all of its
respective property, or
(iii)
orders the liquidation of the Company, the Guarantor or any of the Significant Subsidiaries, and the order or decree remains unstayed
and in effect for 60 days;
(h)
the Guarantee by the Guarantor ceases to be in full force and effect or is declared null and void or the Guarantor denies that
it has any further liability under its Guarantee to the Holders of Securities of that Series, or has given notice to such effect (other
than by reason of the release of such Guarantee in accordance with this Indenture), and such condition shall have continued for a period
of 30 days after written notice has been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the
Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Securities of that Series; or
(i)
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officer’s Certificate of the Company, in accordance with Section 2.2.14.
The term “Bankruptcy Law” means Title
11, U.S. Code, UK Insolvency Act 1986 or any similar foreign, federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, administrator, administrative receiver, liquidator or similar official under any Bankruptcy Law.
SECTION 6.2
Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of Default as to the Company or the Guarantor referred to in Section 6.1(f)
or (g)) then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding Securities
of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal
amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to the Company and the Guarantor (and to the Trustee if given by Holders),
and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately
due and payable. If an Event of Default specified in Section 6.1(f) or (g) shall occur as to the Company or the Guarantor, the principal
amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration
with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by
written notice to the Company, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences if:
(a)
the Company or the Guarantor has paid or deposited with the Trustee a sum sufficient to pay
(i)
all overdue interest, if any, on all Securities that Series,
(ii)
the principal of any Securities of that Series that has become due otherwise than by such declaration of and interest thereon at
the rate or rates therefor in such Securities,
(iii)
to the extent that payment of such interest is legally enforceable, interest upon any overdue principal and overdue interest at
the rate or rates prescribed therefor in such Securities of that Series, and
(iv)
all sums paid or advanced by the Trustee and the reasonable compensation, expenses, and advances of the Trustee, its agents and
counsel; and
(b)
all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest of Securities
of that Series which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
SECTION 6.3
Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants, that if:
(a)
default is made in the payment of any interest on any Security when such interest becomes due and payable and such default for
a period of 30 days, or
(b)
default is made in the payment of principal of any Security at the Maturity thereof, or
(c)
default is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to them, for
the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and,
to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal or any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company
or the Guarantor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or the Guarantor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities
of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of
the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise
of any power granted herein, or to enforce any other proper remedy.
SECTION 6.4
Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or the Guarantor upon the Securities or the
property of the Company or the Guarantor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any
demand on the Company or the Guarantor for the payment of overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a)
to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, indemnity, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(b)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
SECTION 6.5
Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 6.6
Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due
the Trustee under Section 7.7; and
Second: To the payment of the amounts then
due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest,
respectively; and
Third: To the Company or as a court of competent
jurisdiction may direct in a final non-appealable judgment.
SECTION 6.7
Limitation on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a)
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities
of that Series;
(b)
the Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c)
such Holder or Holders have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d)
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e)
no direction inconsistent with such written request has been given to the Trustee during such 60- day period by the Holders of
a majority in principal amount of the outstanding Securities of that Series; it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all
such Holders.
SECTION 6.8
Unconditional Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest,
if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the
redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 6.9
Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Guarantor, the Trustee
and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 6.10
Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 6.11
Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12
Control by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall have
the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that
(a)
such direction shall not be in conflict with any rule of law or with this Indenture,
(b)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(c)
subject to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability.
SECTION 6.13
Waiver of Past Defaults. Subject to Section 6.2, the Holders of not less than a majority in principal amount of the outstanding
Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect
to such Series and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and
its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but
no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.14
Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company or the
Guarantor, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date).
ARTICLE
VII
TRUSTEE
SECTION 7.1
Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs.
(a)
Except during the continuance of an Event of Default:
(i)
The Trustee need perform only those duties that are specifically set forth in this Indenture and no others and no implied duties
shall be read into this Indenture against the Trustee.
(ii)
In the absence of gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to
the Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officer’s Certificates or Opinions
of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s
Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture (but need not confirm
or investigate the accuracy of mathematical calculations or other facts stated therein).
(b)
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i)
This paragraph does not limit the effect of paragraph (b) of this Section.
(ii)
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(iii)
The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities
of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
(c)
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(d)
The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(e)
The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company
and the Guarantor. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(f)
No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the
performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
(g)
The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and subject to the
standard of care as are set forth in paragraphs (b), (c), (f) and (g) of this Section with respect to the Trustee.
SECTION 7.2
Rights of Trustee.
(a)
The Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b)
Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel.
(c)
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due
care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depository.
(d)
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within
its rights or powers.
(e)
The Trustee may consult with counsel of its choosing and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(f)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g)
The Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Securities, unless either
(1) a Responsible Officer shall have actual knowledge of such default or Event of Default or (2) written notice of such default or Event
of Default shall have been received by the Trustee at the Corporate Trust Office and such notice references this Indenture and the applicable
Series of Securities.
(h)
The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(i)
In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
(j)
The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent, custodian
and any other person employed to act hereunder.
(k)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may
see fit.
SECTION 7.3
Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company, the Guarantor or an Affiliate of either of them with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
SECTION 7.4
Trustee’s Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible
for any statement in the Securities other than its authentication.
SECTION 7.5
Notice of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series
and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail (or deliver electronically in accordance with
the procedures of the Depository) to each Securityholder of the Securities of that Series notice of a Default or Event of Default within
90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except
in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold
the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Securityholders of that Series.
SECTION 7.6
Reports by Trustee to Holders. Within 60 days after May 15 in each year commencing May 15, 2025, the Trustee shall transmit
by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of
such May 15, in accordance with, and to the extent required under, TIA ss. 313.
A copy of each report at the time of its mailing
to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities of that Series are listed.
The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.
SECTION 7.7
Compensation and Indemnity. The Company and the Guarantor shall, jointly and severally, pay to the Trustee compensation
as agreed to in writing between the Company, the Guarantor and the Trustee from time to time. The Trustee’s compensation shall not
be limited by any law on compensation of a trustee of an express trust.
The Company and the Guarantor shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation
and expenses of the Trustee’s agents and counsel.
The Company and the Guarantor shall, jointly and
severally, indemnify the Trustee, in each of its capacities hereunder, (including the cost of defending itself) against any claims, loss,
liability or expense incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as
Trustee or Agent. The Trustee shall notify the Company and the Guarantor promptly of any claim for which it may seek indemnity. The Company
and the Guarantor shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the
Company and the Guarantor shall pay the reasonable fees and expenses of such counsel. The Company and the Guarantor need not pay for any
settlement made without their consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers,
directors, employees, shareholders and agents of the Trustee.
The Company and the Guarantor need not reimburse
any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee or agent of the Trustee
through its own negligence or willful misconduct.
To secure the Company’s and the Guarantor’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held
or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(f) or (g) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the
termination of this Indenture and the resignation or removal of the Trustee.
SECTION 7.8
Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities
of one or more Series by so notifying Company and the Guarantor. The Holders of a majority in principal amount of the Securities of any
Series may remove the Trustee with respect to that Series by so notifying the Trustee, the Company and the Guarantor. The Company may
remove the Trustee with respect to Securities of one or more Series if:
(a)
the Trustee fails to comply with Section 7.10;
(b)
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c)
a Custodian or public officer takes charge of the Trustee or its property; or
(d)
the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities of the applicable Series may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities
of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least 10% in principal amount of the Securities of the applicable Series may, at the expense of the Company,
petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to the Securities of
any one or more Series fails to comply with Section 7.10, any Securityholder of the applicable Series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company and the Guarantor. Immediately after that, the retiring Trustee shall transfer
all property held by it as Trustee to the successor Trustee at the expense of the Company and the Guarantor subject to the lien provided
for in Section 7.7, and the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this
Indenture. A successor Trustee shall mail (or deliver electronically in accordance with the procedures of the Depository) a notice of
its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company’s and the Guarantor’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee
with respect to expenses and liabilities incurred by it prior to such replacement.
SECTION 7.9
Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10
Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA ss.ss. 310(a)
(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss. 310(b).
SECTION 7.11
Preferential Collection of Claims. The Trustee is subject to TIA ss. 311(a), excluding any creditor relationship listed
in TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE
VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.1
Satisfaction and Discharge of Indenture. This Indenture shall upon Company Order cease to be of further effect (except as
hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a)
either
(i)
all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that
have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii)
all such Securities not theretofore delivered to the Trustee for cancellation
(1)
have become due and payable, or
(2)
will become due and payable at their Stated Maturity within one year, or
(3)
are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, or
(4)
are deemed paid and discharged pursuant to Section 8.3, as applicable;
and the Company or the Guarantor, in the case of (1), (2) or (3) above,
has deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging
the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the
date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be;
(b)
the Company and Guarantor have paid or caused to be paid all other sums payable hereunder by the Company and the Guarantor; and
(c)
the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company and the Guarantor to the Trustee under Section 7.7, and, if money shall have been deposited
with the Trustee pursuant to clause
(d)
of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive.
SECTION 8.2
Application of Trust Funds; Indemnification.
(a)
Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money, U.S. Government
Obligations and Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the
Trustee in respect of U.S. Government Obligations and Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3
or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company or the Guarantor acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received
by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4.
(b)
The Company and the Guarantor shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed
against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal
received in respect of such obligations other than any payable by or on behalf of Holders.
(c)
The Trustee shall deliver or pay to the Company or the Guarantor, as applicable, from time to time upon Company Request any U.S.
Government Obligations, Foreign Government Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of
a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S.
Government Obligations, Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale
by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
SECTION 8.3
Legal Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2.16,
to be inapplicable to Securities of any Series, the Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness
on all the outstanding Securities of such Series on the 91st day after the date of the deposit referred to in subparagraph (d) hereof,
and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, at Company Request, execute proper instruments acknowledging the same), except as to:
(a)
the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated Maturity
of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the
Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the
Securities of such Series;
(b)
the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and
(c)
the rights, powers, trust and immunities of the Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(a)
the Company or the Guarantor shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust
for making the purpose of the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders
of such Securities (i) in the case of Securities denominated in Dollars, cash in Dollars (or such other money or currencies as shall then
be legal tender in the United States) and/or U.S. Government Obligations or (ii) in the case of Securities denominated in a Currency other
than Dollars, cash in such Currency and/or Foreign Government Obligations denominated in such Currency, which through the payment of interest,
premium, if any, and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming
no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund or analogous payments)
of, premium, if any, and interest, if any, on all the Securities of such Series on the dates such installments of interest or principal
are due;
(b)
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement
or instrument to which the Company or the Guarantor are a party or by which they are bound;
(c)
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date
of such deposit;
(d)
the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i)
the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (ii) since the date of execution
of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income,
gain or loss for United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to
United States federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred;
(e)
the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company
or the Guarantor, as applicable, with the intent of preferring the Holders of the Securities of such Series over any other creditors of
the Company or the Guarantor with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or the
Guarantor;
(f)
such deposit shall not result in the trust arising from such deposit constituting an investment company (as defined in the U.S.
Investment Company Act of 1940, as amended), or such trust shall be qualified under such Act or exempt from regulation thereunder; and
(g)
the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance by this Section have been complied with.
SECTION 8.4
Covenant Defeasance.
Unless this Section 8.4 is otherwise specified
pursuant to Section 2.2.16 to be inapplicable to Securities of any Series, on and after the 91st day after the date of the deposit referred
to in subparagraph (a) hereof, the Company and the Guarantor may omit to comply with any term, provision or condition set forth under
Sections 4.2, 4.3, 4.4, 4.5, 4.6 and 5.1 as well as any additional covenants contained in a supplemental indenture hereto for a particular
Series of Securities or a Board Resolution or an Officer’s Certificate of the Company delivered pursuant to Section 2.2.16 (and
the failure to comply with any such covenants shall not constitute a Default or Event of Default under Section 6.1), with respect to the
Securities of such Series, provided that the following conditions shall have been satisfied:
(a)
With reference to this Section 8.4, the Company or the Guarantor has deposited or caused to be irrevocably deposited (except as
provided in Section 8.2(c)) with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities (i) in the case of Securities denominated in Dollars, cash in Dollars (or such other money or
currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations or (ii) in the case of Securities denominated
in a Currency other than Dollars, cash in such Currency and/or Foreign Government Obligations denominated in such Currency, which through
the payment of interest, principal and premium, if any, in respect thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment
of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed
in a written certification thereof delivered to the Trustee, to pay principal and interest, if any, on and any mandatory sinking fund
in respect of the Securities of such Series on the dates such installments of interest or principal are due;
(b)
Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement
or instrument to which the Company or the Guarantor is a party or by which they are bound;
(c)
No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date
of such deposit or during the period ending on the 91st day after such date;
(d)
the Company shall have delivered to the Trustee an Opinion of Counsel confirming that Holders of the Securities of such Series
will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit and defeasance and will
be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred;
(e)
the Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company
or the Guarantor, as applicable, with the intent of preferring the Holders of the Securities of such Series over any other creditors of
the Company or the Guarantor or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or
the Guarantor; and
(f)
The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance contemplated by this Section 8.4 have been complied with.
SECTION 8.5
Repayment to the Company. The Trustee and the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal and interest that remains unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable abandoned property law designates another person.
SECTION 8.6
Reinstatement. If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 8.2 by reason
of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s and the Guarantor’s obligations under this Indenture and the Securities shall
be revived and reinstated as though no deposit had occurred pursuant to Section 8.1, 8.3 or 8.4 until such time as the Trustee or such
Paying Agent is permitted to apply all such money in accordance with Section 8.2.
ARTICLE
IX
AMENDMENTS AND WAIVERS
SECTION 9.1
Without Consent of Holders. The Company, the Guarantor and the Trustee may amend or supplement this Indenture or the Securities
of one or more Series without the consent of any Securityholder:
(a)
to cure any ambiguity, defect or inconsistency;
(b)
to comply with Article V;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d)
to make any change that does not materially adversely affect in any material respect the legal rights of any Securityholder;
(e)
to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this
Indenture;
(f)
in the case of subordinated Securities, to make any change in the provisions of this Indenture or any supplemental indenture relating
to subordination that would limit or terminate the benefits available to any holder of senior Debt under such provisions (but only if
each such holder of senior Debt consents to such change);
(g)
to add to, change or eliminate any of the provisions of this Indenture with respect to Securities of a Series; although no such
addition, change or elimination may apply to Securities of any Series created prior to the execution of such amendment and entitled to
the benefit of such provision, nor may any such amendment modify the rights of a Holder of any Security with respect to such provision,
unless the amendment becomes effective only when there is no outstanding Security of any Series created prior to such amendment and entitled
to the benefit of such provision;
(h)
to secure the Securities of any Series or any Guarantee thereof;
(i)
to add additional Guarantor(s) of any Series of Securities;
(j)
to add to the Company’s or Guarantor’s covenants or obligations under this Indenture for the protection of the Holders
or surrender any right, power or option conferred by this Indenture on the Company or the Guarantor;
(k)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one
or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(l)
to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
SECTION 9.2
With Consent of Holders. (a) The Company, the Guarantor and the Trustee may enter into a supplemental indenture with the
written consent of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series),
for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section
6.13, the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such waiver by notice
to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may
waive compliance by the Company or the Guarantor with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the
Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but it shall
be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes effective,
the Company or the Guarantor shall mail (or deliver electronically in accordance with the procedures of the Depository) to the Holders
of Securities affected thereby, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company or the Guarantor
to mail (or deliver electronically in accordance with the procedures of the Depository) or publish such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
(a)
Without the consent of each Securityholder affected, an amendment or waiver may not be made to, as to any non-consenting Securityholder:
(i)
reduce the percentage of principal amount of outstanding Securities whose Holders must consent to an amendment, supplement or waiver;
(ii)
reduce the rate of or change the time for payment of interest (including default interest) on any Security;
(iii)
reduce the principal amount of or the premium, if any, on any Security or change the Stated Maturity of any Security or reduce
the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
(iv)
in the case of any subordinated Securities, or coupons appertaining thereto, make any change in the provisions of this Indenture
relating to subordination that adversely affects the rights of any Holder under such provisions;
(v)
reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(vi)
waive a Default or Event of Default in the payment of the principal of, premium, if any, or interest, if any, on any Security (except
a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that resulted from such acceleration);
(vii)
make the principal of or interest, if any, on any Security payable in any Currency other than that stated in the Security;
(viii)
make any change in Sections 6.8, 6.13 or 9.2;
(ix)
release the Guarantor from its obligations in respect of its Guarantee of any Series or modify the Guarantee of any Series other
than in accordance with the provisions of this Indenture; or
(x)
waive a redemption payment with respect to any Security or change any of the provisions with respect to the redemption of any Securities.
SECTION 9.3
Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be
set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
SECTION 9.4
Revocation and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security
is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt
as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the
date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind
every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (i) through
(x) of Section 9.2(b). In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
SECTION 9.5
Notation on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any
Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall
authenticate upon request new Securities of that Series that reflect the amendment or waiver.
SECTION 9.6
Trustee Protected. In executing, or accepting the additional trusts created by any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 7.1)
shall be fully protected in relying upon, in addition to the documents required by Section 10.4, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures,
except that the Trustee need not sign any supplemental indenture that adversely affects its rights, duties, liabilities or immunities.
ARTICLE
X
MISCELLANEOUS
SECTION 10.1
Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
SECTION 10.2
Notices. Any notice or communication by the Company, the Guarantor or the Trustee to the others is duly given if in writing
and delivered in person or mailed by first-class mail:
if to the Company:
Omnicom Finance Holdings plc
Bankside 3, 90-100 Southwark Street
London, SE1 0SW
United Kingdom
Attention: Secretary
if to the Guarantor:
Omnicom Group Inc.
280 Park Avenue
New York, New York 10017
Attention: General Counsel
if to the Trustee:
Deutsche Bank Trust Company Americas
Trust and Agency Services
1 Columbus Circle, 17th Floor
Mail Stop: NYC01-1710
New York, New York 10019, USA
Attention: Corporates Team/Omnicom
AA6238
Facsimile: (732) 578-4635
The Company and the Guarantor or the Trustee by
notice to the others may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder
shall be mailed by first-class mail to their address shown on the register kept by the Registrar or delivered electronically in accordance
with the procedures of the Depository.
Failure to mail (or deliver electronically in accordance
with the procedures of the Depository) a notice or communication to a Securityholder of any Series or any defect in it shall not affect
its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is mailed or published
(or delivered electronically in accordance with the procedures of the Depository) in the manner provided above, within the time prescribed,
it is duly given, whether or not the Securityholder receives it.
If the Company or the Guarantor mails (or delivers
electronically in accordance with the procedures of the Depository) a notice or communication to Securityholders, it shall mail or deliver
electronically a copy to the Trustee and each Agent at the same time.
SECTION 10.3
Communication by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA ss. 312(b) with
other Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series
or all Series. The Company, the Guarantor, the Trustee, the Registrar and anyone else shall have the protection of TIA ss. 312(c).
SECTION 10.4
Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company or the Guarantor to the
Trustee to take any action under this Indenture, the Company or the Guarantor shall furnish to the Trustee:
(a)
an Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b)
an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
SECTION 10.5
Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions
of TIA ss. 314(e) and shall include:
(a)
a statement that the person making such certificate or opinion has read such covenant or condition;
(b)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c)
a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d)
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
SECTION 10.6
Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Securityholders of one
or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 10.7
Legal Holidays. Unless otherwise provided by Board Resolution, Officer’s Certificate of the Company or supplemental
indenture for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday
at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
SECTION 10.8
No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company or the Guarantor shall
not have any liability for any obligations of the Company or the Guarantor under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases
all such liability.
The waiver and release are part of the consideration
for the issue of the Securities.
SECTION 10.9
Counterparts and Electronic Signatures. This Indenture may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Facsimile, documents executed, scanned and transmitted electronically and electronic signatures,
including those created or transmitted through a software platform or application, shall be deemed original signatures for purposes of
this Indenture and all matters and agreements related thereto, with such facsimile, scanned and electronic signatures having the same
legal effect as original signatures. The parties agree that this Indenture or any instrument, agreement or document necessary for the
consummation of the transactions contemplated by this Indenture or related hereto or thereto (including, without limitation, addendums,
amendments, notices, instructions, communications with respect to the delivery of securities or the wire transfer of funds or other communications)
(“Executed Documentation”) may be accepted, executed or agreed to through the use of an electronic signature in accordance
with applicable laws, rules and regulations in effect from time to time applicable to the effectiveness and enforceability of electronic
signatures. Any Executed Documentation accepted, executed or agreed to in conformity with such laws, rules and regulations will be binding
on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any third-party
electronic signature capture service providers as may be reasonably chosen by a signatory hereto or thereto. When the Trustee acts on
any Executed Documentation sent by electronic transmission, the Trustee will not be responsible or liable for any losses, costs or expenses
arising directly or indirectly from its reliance upon and compliance with such Executed Documentation, notwithstanding that such Executed
Documentation (a) may not be an authorized or authentic communication of the party involved or in the form such party sent or intended
to send (whether due to fraud, distortion or otherwise) or (b) may conflict with, or be inconsistent with, a subsequent written instruction
or communication; it being understood and agreed that the Trustee shall conclusively presume that Executed Documentation that purports
to have been sent by an authorized officer of a person has been sent by an authorized officer of such person. The party providing Executed
Documentation through electronic transmission or otherwise with electronic signatures agrees to assume all risks arising out of such electronic
methods, including, without limitation, the risk of the Trustee acting on unauthorized instructions and the risk of interception and misuse
by third parties.
SECTION 10.10
Governing Laws. THIS INDENTURE, THE SECURITIES AND THE GUARANTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
SECTION 10.11
No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company, the Guarantor or a Subsidiary of either of them. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.
SECTION 10.12
Successors. All agreements of the Company and the Guarantor in this Indenture and the Securities shall bind their successor.
All agreements of the Trustee in this Indenture shall bind its successor.
SECTION 10.13
Severability. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.14
Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify
or restrict any of the terms or provisions hereof.
SECTION 10.15
USA Patriot Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable
to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including
Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Trustee is required to obtain, verify, record
and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly,
each of the parties agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation
as may be available for such party in order to enable the Trustee to comply with Applicable Law.
SECTION 10.16
Force Majeure. The Trustee and the Agents shall not incur any liability for not performing any act or fulfilling any duty,
obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee or any Agent (including but not limited
to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil or military
disturbance or unrest, local or national disturbance or disaster, any nuclear or natural catastrophes, any act of terrorism, pandemics,
epidemics, recognized public emergencies, quarantine restrictions, interruptions, loss or malfunctions of utilities, communications or
computer (software or hardware) services, and hacking, cyber-attacks, or other use or infiltration of the Trustee’s technological
infrastructure exceeding authorized access, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication
facility); provided that nothing in this Section 10.16 shall alter the Trustee’s standard of care under the TIA; and provided further
that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
SECTION 10.17
Consent to Jurisdiction; Service of Process; and Waiver of Jury Trial. Each of the Company and the Guarantor agrees that
any legal suit, action or proceeding brought by any party to enforce any rights under or with respect to this Indenture, any Security
or any other document or the transactions contemplated hereby or thereby may be instituted in any state or federal court in The Borough
of Manhattan, The City of New York, State of New York, United States of America, 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 such suit, action or proceeding, irrevocably waives
to the fullest extent permitted by law any claim that and agrees not to claim or plead in any court that any such action, suit or proceeding
brought in such court has been brought in an inconvenient forum and irrevocably submits to the non-exclusive jurisdiction of any such
court in any such suit, action or proceeding or for recognition and enforcement of any judgment in respect thereof.
To the extent that the Company or the Guarantor
or any of their respective Subsidiaries has or hereafter may acquire any immunity from jurisdiction of any court (including any court
in the United States, the State of New York or other jurisdiction in which the Company, the Guarantor or any successor thereof may be
organized or any political subdivisions thereof) or from any legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself or its property or assets, this Indenture, the Securities,
the transactions contemplated hereby or thereby or any other documents or actions to enforce judgments in respect of any thereof, then
each of the Company and the Guarantor hereby irrevocably waives, and will cause its Subsidiaries to waive, such immunity, and any defense
based on such immunity, in respect of its obligations under the above-referenced documents and the transactions contemplated thereby,
to the extent permitted by law.
The Company hereby appoints Omnicom Group Inc.,
280 Park Avenue New York, New York 10017, Attention: General Counsel (the “Agent for Service”), and the Guarantor hereby accepts
such appointment, as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding
that may be instituted in any state or federal court in the Borough of Manhattan, The City of New York, State of New York, United States
of America. The Company agrees that service of process upon the Agent for Service shall be deemed in every respect effective service of
process upon the Company in any such suit, action or proceeding. The Company further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of
the Agent for Service in full force and effect so long as any of the Securities shall be outstanding.
THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN
ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE SECURITIES, THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY OR ANY OTHER
DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.
ARTICLE
XI
SINKING FUNDS
SECTION 11.1
Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the
Securities of a Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment
provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment” and
any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking fund payment.”
If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided
in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms
of the Securities of such Series.
SECTION 11.2
Satisfaction of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver outstanding
Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory
sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is applicable and which
have been redeemed either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory
sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms
of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee,
together with an Officer’s Certificate of the Company with respect thereto, not later than 15 days prior to the date on which the
Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price
specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the
principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000,
the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken,
and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company
any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series
purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company.
SECTION 11.3
Redemption of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental
indenture hereto or Officer’s Certificate of the Company in respect of a particular Series of Securities) prior to each sinking
fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting
of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated
in the Board Resolution, Officer’s Certificate of the Company or supplemental indenture in respect of a particular Series of Securities)
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
ARTICLE
XII
GUARANTEE OF SECURITIES
SECTION 12.1
Guarantee.
12.1.1
The Guarantor hereby, jointly and severally with any other person who may also guarantee the Guaranteed Obligations (as defined
below), unconditionally and irrevocably guarantees, on a senior unsecured basis as if it was respectively principal debtor and not merely
surety, to each Holder and to the Trustee and its successors and assigns on behalf of each Holder, the full and punctual payment when
due, whether at maturity, by acceleration, redemption or otherwise, of the principal of and interest on, if any, the Securities, if lawful,
and all other monetary obligations of the Company under this Indenture and the Securities (collectively, the “Guaranteed Obligations”).
The Guarantor, in its capacity as guarantor, further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in
part, without notice or further assent from the Guarantor, and the Guarantor shall remain bound under its Guarantee and this Indenture,
notwithstanding any such extension or renewal. Failing payment when due of any amount so guaranteed for whatever reason, the Guarantor
will be obligated to pay the same in full, or cause to be duly and punctually paid in full, without any demand or notice whatsoever.
12.1.2
In its capacity as guarantor, the Guarantor hereby waives presentation to, demand of payment from and protest to the Company of
any of the Guaranteed Obligations and also waives notice of protest for nonpayment. In its capacity as guarantor, the Guarantor also hereby
waives notice of any default by the Company under the Securities or this Indenture. The Guarantor agrees that its obligations under its
Guarantee shall be continuing, absolute, full and unconditional under any and all circumstances, to the fullest extent permitted by applicable
law, and shall not be discharged except by payment in full of the Securities, irrespective of:
(a)
the value, genuineness, regularity, validity, enforceability, avoidance, subordination, discharge or disaffirmance of any of the
Guaranteed Obligations, the Securities or this Indenture, or the absence of any action to enforce the same;
(b)
any extension or waiver, at any time or from time to time, without notice to the Guarantor, of the time for compliance by the Company
with any of its obligations under the Securities or this Indenture;
(c)
any substitution, release or exchange of any other guarantee of or security for any obligations of the Company under the Securities
or this Indenture;
(d)
any rescission, amendment or modification to any of the terms or provisions of the Securities or this Indenture;
(e)
any law, regulation or order of any jurisdiction affecting any term of any of the Securities or this Indenture or the rights of
any Holder or the Trustee with respect thereto;
(f)
any failure to obtain any authorization or approval from, or other action by, to notify, or to file anything with, any governmental
authority or regulatory body required in connection with the performance of the Guarantee by the Guarantor;
(g)
the failure by any Holder or the Trustee to assert any claim or demand or to exercise any right or remedy against the Company or
any other guarantor of the Guaranteed Obligations or any other person;
(h)
the failure by any Holder or the Trustee to exercise any right or remedy against any collateral securing any of the Guaranteed
Obligations; or
(i)
any other circumstance whatsoever that might otherwise constitute a defense to or a legal or equitable discharge of the Guarantor’s
obligations, in its capacity as guarantor, under its Guarantee or of the Guarantor’s obligations, in its capacity as guarantor,
under the Securities and this Indenture.
12.1.3
The Guarantor’s obligations under its Guarantee, this Indenture and the Securities, in each case in its capacity as guarantor,
shall not be limited by any valuation, estimation or disallowance made in connection with any proceedings filed by or against the Guarantor
or the Company under Bankruptcy Law, including the United States Bankruptcy Code of 1978, as amended (the “Bankruptcy Code”),
whether pursuant to Section 502 of the Bankruptcy Code or any other section thereof. The Guarantor further agrees that, in its capacity
as guarantor, none of the Holders shall be under any obligation to marshal any assets in favor of or against or in payment of any or all
of the Guaranteed Obligations or the Securities. To the extent that the Guarantor makes a payment or payments on any or all of the Guaranteed
Obligations and such payment or payments (or any part thereof) is or are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to the Guarantor, its estate, trustee or receiver or any other party, including, without limitation,
the Guarantor, under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment or repayment,
the Guaranteed Obligations (or, if applicable, such part thereof as had been paid, reduced or satisfied by such amount), shall be reinstated
and revived and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred. The Guarantor
waives, in its capacity as guarantor, all set-offs, counterclaims, reductions and diminutions of any obligation, and any defense of any
kind or nature (other than, payment of the Guaranteed Obligations), that the Guarantor may have or assert against the Company or any other
person, and all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and
notices of acceptance of its Guarantee.
12.1.4
The Guarantor, in its capacity as guarantor, hereby unconditionally and irrevocably waives (i) any defense arising by reason of
any claim or defense based upon an election of remedies by any Holder that in any manner impairs, reduces, releases or otherwise adversely
affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of the Guarantor or other rights of the Guarantor
to proceed against the Company, any other guarantor or any other person or collateral, if any, and (ii) any defense based on any right
of set-off or counterclaim against or in respect of the Guaranteed Obligations of the Guarantor under this Indenture or the Securities.
12.1.5
The Guarantor, in its capacity as guarantor, hereby waives any right to which it may be entitled to have its obligations under
the respective Guarantee and this Indenture divided among it and other guarantors of the Guaranteed Obligations, if any, such that the
Guarantor’s obligations would be less than the full amount claimed. The Guarantor, in its capacity as guarantor, hereby waives any
right to which it may be entitled to have the assets of the Company or any other person who became an “obligor” under the
Securities or this Indenture first be used and depleted as payment of the obligations of the Company or such other person, respectively,
under the Securities and this Indenture prior to any amounts being claimed from or paid by the Guarantor under its Guarantee. The Guarantor,
in its capacity as guarantor, hereby waives any right to which it may be entitled to require that suit be instituted against the Company
or any other guarantor of the Guaranteed Obligations or “obligor” under the Securities or this Indenture prior to an action
being initiated against the Guarantor. The Guarantor further agrees that its Guarantee constitutes a guarantee of payment when due (and
not a guarantee of collection) and waives any right, in its capacity as guarantor, to require that any resort be had by any Holder or
the Trustee to any security held for payment of the Guaranteed Obligations.
12.1.6
The failure to endorse the Guarantee on any Security shall not affect or impair the validity thereof.
12.1.7
The Guarantor’s obligations under its Guarantee shall not be affected if any Holder is precluded for any reason (including,
without limitation, the application of the automatic stay under Section 362 of the Bankruptcy Code) from enforcing or exercising any right
or remedy with respect to the Securities, and the Guarantor shall pay to each affected Holder, upon demand, the amount that would otherwise
have been due and payable had the exercise of such rights and remedies been permitted. In the event of any such application of the automatic
stay under Section 362 of the Bankruptcy Code, the Securities shall forthwith become due and payable by the Guarantor for purposes of
the Guarantee.
12.1.8
The Guarantor hereby agrees that, unless and until all obligations with respect to the Securities and this Indenture have been
paid in full, in its capacity as guarantor, it shall have no right (whether direct or indirect) of subrogation (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) to the claims of any Holder or the Trustee against the Company or any other person who
became an “obligor” under the Securities or this Indenture in respect of any obligation with respect to the Securities or
this Indenture, notwithstanding any payment or payments made by the Guarantor hereunder or any set-off or application of funds of the
Guarantor by the Holder; and the Guarantor hereby waives all contractual, statutory and common law rights of reimbursement, contribution
or indemnity it may have against the Company or any other such person as the case may be, and any and all other rights of payment or recovery
from the Company or any other such person, as the case may be, that it may now have or hereafter acquire until all Securities and all
obligations under this Indenture have been paid in full (in which event such rights of payment or recovery shall be deemed to be in the
form of a loan or loans made from the Guarantor to the Company or any other such person, as the case may be). The Guarantor further agrees
that, in its capacity as guarantor, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (1)
the maturity of the Securities guaranteed hereby may be accelerated as provided in Article VI of this Indenture for the purposes of the
Guarantor’s Guarantee hereunder, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the Securities guaranteed pursuant to this Article XII, and (2) in the event of any declaration of acceleration of such Securities
as provided in Article VI of this Indenture, such Securities (whether or not due and payable) will forthwith become due and payable by
the Guarantor for the purpose of its Guarantee hereunder.
12.1.9
Except as otherwise specifically provided in this Article XII with respect to the release of the Guarantor from its Guarantee hereunder,
such Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantor
and the successors thereof, and shall inure to the benefit of (and be enforceable by) the Trustee and the Holders from time to time, or
their respective successors or assignees, until this Indenture shall have been terminated and the principal of and interest, if any, on
the Securities, and the obligations of the Guarantor in respect of the Guaranteed Obligations, have been satisfied by payment in full.
12.1.10
Payments made by the Guarantor pursuant to its Guarantee hereunder will be made to each Holder in the same manner, and to the same
location, as payments to such Holder are required to be made pursuant to the provisions of the Securities and this Indenture.
12.1.11
The Guarantor shall pay all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) paid or incurred
by the Trustee or any Holder in connection with the enforcement of the Guarantee or any other rights of the Trustee or such Holder under
this Indenture and the Securities with respect to such Guarantee and the prosecution or defense of any action by or against any of the
Holders in connection with the Guarantee or this Indenture with respect to such Guarantee, whether involving the Guarantor or any other
person, including a trustee in bankruptcy; provided, however, that the Guarantor shall have no such obligation in connection with any
action brought by any Holder against the Guarantor to the extent that the Guarantor is the prevailing party in the judgment rendered in
any such action; and provided further that the Guarantor shall not be responsible for the fees and expenses of more than one firm of attorneys
(in addition to any required local counsel).
12.1.12
The Guarantor hereby agrees that its Guarantee set forth in this Article XII shall remain in full force and effect notwithstanding
the absence on any Security of a notation relating to such Guarantee.
ARTICLE
XIII
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
SECTION 13.1
Redemption Upon Changes in Withholding Taxes.
Unless otherwise provided pursuant to Section 2.2,
the Securities of any Series may be redeemed, as a whole but not in part, at the option of the Company, upon not less than 30 nor more
than 60 days’ notice (which notice shall be irrevocable), at a redemption price equal to 100% of the principal amount thereof, together
with accrued interest, if any, to the redemption date and Additional Amounts (as defined in Section 13.2), if any, if as a result of any
amendment to, or change in, the laws, regulations, rulings or treaties of the United Kingdom, the United States or other jurisdiction
in which the Company or the Guarantor or, in each case, any successor thereof (including a successor person formed by a consolidation
with the Company or the Guarantor, into which the Company or the Guarantor is merged, or that acquires or leases all or substantially
all of the property and assets of the Company or the Guarantor) may be incorporated, organized, or otherwise resident for tax purposes,
or engaged in business for tax purposes, as applicable, or any political subdivision thereof or therein having the power to tax, or any
jurisdiction from or through which payment is made by or on behalf of the Company or the Guarantor (a “Taxing Jurisdiction”),
or any change in the application or official interpretation of such laws, regulations, rulings or treaties, including any action taken
by, or change in the published administrative practice of, a taxing authority or a holding by a court of competent jurisdiction (regardless
of whether such action, change or holding is with respect to the Company or the Guarantor), which amendment or change is announced or
becomes effective on or after the date the Securities of such Series are issued, the Company or the Guarantor has become, or there is
a substantial probability that it will become, obligated to pay Additional Amounts on the next date on which any amount would be payable
with respect to the Securities of such Series (but, in the case of the Guarantor, only if the payment giving rise to such requirement
cannot be made by the Company), and such obligation cannot be avoided by the use of commercially reasonable measures available to the
Company or the Guarantor, as the case may be, including, for the avoidance of doubt, the appointment of a new paying agent but not including
substitution of the obligor on the Securities; provided, however, that no such notice of redemption may be given earlier than 60 days
prior to the earliest date on which the Company or the Guarantor, as the case may be, would be obligated, or there is a substantial probability
the Company or the Guarantor would otherwise be obligated, to pay such Additional Amount. Prior to the publication or, where relevant,
mailing (and/or to the extent permitted by applicable procedures or regulations, electronic delivery) of any notice of redemption described
in this paragraph, the Company shall deliver to the Trustee (i) an Officer’s Certificate of the Company or the Guarantor, as the
case may be, stating that the obligation to pay Additional Amounts cannot be avoided by the Company or the Guarantor, as the case may
be, taking commercially reasonable measures available to it, as described above, and (ii) a written opinion of independent tax counsel
to the Company or the Guarantor, as the case may be, of recognized standing to the effect that the Company or the Guarantor, as the case
may be, has or there is a substantial probability that it will become obligated to pay Additional Amounts as a result of a change, amendment,
official interpretation or application described above.
SECTION 13.2
Payment of Additional Amounts.
All payments made by the Company or the Guarantor
under or with respect to the Securities and the Guarantee will be made free and clear of and without withholding or deduction for or on
account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied
by or on behalf of any Taxing Jurisdiction (“Taxes”), unless the Company or the Guarantor, as the case may be, is required
to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or the Guarantor
is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities
or the Guarantee, as the case may be, the Company or the Guarantor, as the case may be, will pay such additional amounts (“Additional
Amounts”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after
such withholding or deduction will equal the amount that such Holder would have received if such Taxes had not been required to be withheld
or deducted; provided that no Additional Amounts will be payable with respect to a payment to a holder of Securities or a holder of beneficial
interests in Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for or on account
of:
(a)
any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds
such Securities) or a fiduciary, settlor, beneficiary, member, shareholder or other equity owner of, or possessor of a power over, such
holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability company, corporation
or other entity:
(i)
is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction
or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such Securities,
without another presence or business in such Taxing Jurisdiction);
(ii)
has or had any present or former connection (other than the mere fact of ownership of such Securities) with the Taxing Jurisdiction
imposing such Taxes, including being or having been a national citizen or resident thereof, being treated as being or having been a resident
thereof or being or having been physically present therein;
(iii)
(in relation to payments by the Guarantor only) is or was a personal holding company, a passive foreign investment company, a controlled
foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings
to avoid United States federal income tax; or
(iv)
(in relation to payments by the Guarantor only) actually or constructively owns or owned 10% or more of the total combined voting
power of all classes of stock of the Guarantor within the meaning of Section 871(h)(3) of the Code;
(b)
Taxes imposed on any holder that is not the sole beneficial owner of the Securities, or a portion thereof, or that is a fiduciary
or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the
partnership would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner, or member
received directly its beneficial or distributive share of the payment;
(c)
any estate, inheritance, gift, sales, transfer, excise, personal property or similar Taxes imposed with respect to the Securities,
except as otherwise provided herein;
(d)
any Taxes imposed solely as a result of the presentation of such Securities (where presentation is required) for payment on a date
more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for,
whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional
Amounts had the Securities been presented for payment on any date during such 30-day period;
(e)
any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification,
information, documentation or other reporting requirements concerning the nationality, residence, or identity of such holder or connection
with any Taxing Jurisdiction by such holder, if such compliance is required by statute, regulation, ruling or administrative practice
of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition
to relief or exemption from such Taxes;
(f)
any Taxes that are payable by any method other than withholding or deduction by the Company or the Guarantor or any paying agent
from payments in respect of such Securities;
(g)
any Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made
without such withholding by at least one other paying agent;
(h)
any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder,
official interpretations thereof, any intergovernmental agreement, or any law, rule, guidance or administrative practice implementing
an intergovernmental agreement entered into in connection with such sections of the Code; or
(i)
any combination of Section 13.2(a), (b), (c), (d), (e), (f), (g) or (h).
The Company or the Guarantor, as the case may be,
will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant
Taxing Jurisdiction in accordance with all applicable laws. The Company or the Guarantor, as applicable, will use its commercially reasonable
efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each taxing authority
imposing such Taxes. The Company or the Guarantor, as the case may be, will, upon request, make available to the holders of the Securities,
within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of
tax receipts evidencing such payment by the Company or the Guarantor or if, notwithstanding the Company’s or the Guarantor’s
efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or the Guarantor.
At least 30 days prior to each date on which any
payment under or with respect to the Securities or the Guarantee is due and payable, if the Company or the Guarantor will be obligated
to pay Additional Amounts with respect to such payment, the Company or the Guarantor will deliver to the Trustee an Officer’s Certificate
stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information as
is necessary to enable such Trustee to pay such Additional Amounts to holders of Securities on the payment date.
In addition, the Company will pay any stamp, issue,
registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto,
payable in the United Kingdom or the United States or any political subdivision or taxing authority of or in the foregoing in respect
of the creation, issue, offering, enforcement, redemption or retirement of the Securities.
The provisions of this Article XIII shall survive
any termination or the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which the Company or the Guarantor
or any successor person to the Company or the Guarantor, as the case may be, is organized or is engaged in business for tax purposes or
any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which the Company or the Guarantor
changes its jurisdiction or such Person becomes a successor to the Company or the Guarantor, as the case may be, shall be substituted
for the date on which the Series of Securities was issued.
Whenever in this Indenture, the Securities or the
Guarantee there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount
payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to
the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first above written.
Dated: |
OMNICOM FINANCE HOLDINGS PLC, |
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as Issuer |
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By: |
/s/ Catherine Margaret Porter |
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Name: Catherine Margaret Porter |
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Title: Director |
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OMNICOM GROUP INC., |
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as Guarantor |
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By: |
/s/ Philip J. Angelastro |
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Name: Philip J. Angelastro |
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Title: Executive Vice President and Chief Financial Officer |
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DEUTSCHE BANK TRUST COMPANY |
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AMERICAS, as Trustee |
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By: |
/s/ Sebastian Hidalgo |
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Name: Sebastian Hidalgo |
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Title: Assistant Vice President |
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By: |
/s/ Carol Ng |
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Name: Carol Ng |
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Title: Vice President |
EXHIBIT A
Debt Security
Form of Face of Security
[Title of Series]
[If the Security is a Global Security, insert the
following legend: THIS GLOBAL SECURITY IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE
IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.7 OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR TO ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED
IN THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO SUCH ENTITY
AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.]
[Insert any legend required by applicable securities
laws and regulations or the Internal Revenue Code and the regulations thereunder.]
No.___
[CUSIP] [Common Code] [ISIN] ___
[$]___
OMNICOM FINANCE HOLDINGS PLC, a public limited
company organized under the laws of England and Wales (the “Company,” which term includes any successor person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to ___, or registered assigns, the principal sum of
___ [Dollars] [if other than Dollars, substitute other Currency or Currency units] on ___________,___ [if the Security is
to bear interest prior to Maturity, insert - and to pay interest thereon from ___ or from the most recent interest payment date to
which interest has been paid] or duly provided for, [semi-annually on payments, insert frequency of payments and payment dates], commencing
and in each year] [If other than semi-annual, at [If the Security is to bear interest at a fixed rate, insert - the rate of ___
% per annum, set forth below] [If the Security is to bear interest at a variable or floating rate and if determined with reference to
an index, refer to description of index below] until the principal hereof is paid or made available for payment [If applicable, insert
- and (to the extent that the payment of such interest shall be legally enforceable) at the rate of___% per annum on any overdue
principal and premium and on any overdue installment of interest]. The interest so payable, and punctually paid or duly provided for,
on any interest payment date will, as provided in such Indenture, be paid to the person in whose name this Security (or one or more predecessor
securities) is registered at the close of business on the [regular] record date for such interest, which shall be the ___or ___
(whether or not a Business Day), as the case may be, next preceding such interest payment date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such [regular] record date and may either be paid to the person
in whose name this Security (or one or more predecessor securities) is registered at the close of business on a [special] record date
for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
Series not less than 10 days prior to such [special] record date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this Series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture).
[If the Securities are floating or adjustable rate
securities with respect to which the principal of or any premium or interest may be determined with reference to an index, insert the
text of the floating or adjustable rate provision.]
[If the Security is not to bear interest prior
to Maturity, insert - The principal of this Security shall not bear interest except in the case of a default in payment of principal
upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest
at the rate of___% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at
the rate of ____% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the
date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also
be payable on demand.]
Payment of the principal of (and premium, if any)
and [if applicable, insert - any such] interest on this Security will be made at the office or agency of the Company maintained for that
purpose in ____, in accordance with the terms of the Indenture referred to on the reverse hereof in immediately available funds; provided,
however, that at the option of the Company payment of interest may be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security register).
This Security is fully and unconditionally guaranteed
by Omnicom Group Inc., a corporation duly organized and existing under the laws of the State of New York (the “Guarantor”),
as provided in the Indenture.
Reference is hereby made to the further provisions
of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth
at this place.
This Security shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be construed in accordance with and governed by the laws of said
state [other than with respect to any subordinated Debt, in which case the subordination provisions specified in the Board Resolution,
Officer’s Certificate of the Company or supplemental indenture establishing the terms of this subordinated Security only shall be
governed by the laws of England and Wales].
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the reverse hereof by manual or electronic signature, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
Dated: |
OMNICOM FINANCE HOLDINGS PLC |
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By: |
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By: |
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Form of Trustee’s Certificate of Authentication.
The Trustee’s certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the Series designated
therein referred to in the within-mentioned Indenture.
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Deutsche Bank Trust Company Americas, as Trustee |
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By: |
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Authorized Signatory |
Form of Reverse of Security.
OMNICOM FINANCE HOLDINGS PLC
[Title of Series]
This Security is one of a duly authorized issue
of securities of the Company, designated as its _________ due _________ (herein called the “Securities”), issued and to be
issued in one or more Series under an Indenture, dated as of _________, [as amended by, [insert description of any applicable supplemental
indentures]], herein [collectively] called the “Indenture”), between the Company, the Guarantor and _________, as Trustee
(herein called the “Trustee,” which term includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [, limited in aggregate
principal amount to $_________]. Capitalized terms used in this Security and not defined herein have the meaning ascribed thereto in
the Indenture.
_________, the Trustee under the Indenture has
been appointed by the Company as paying agent, registrar, [conversion agent] and [custodian] with regard to the Securities.
In case an Event of Default shall have occurred
and be continuing, the principal of and accrued interest on all Securities may be declared, and upon said declaration, shall become due
and payable, in the manner, with the effect and subject to the conditions provided for in the Indenture.
[If applicable, insert - The Securities of this
Series are subject to redemption upon not less than 15 days’ nor more than 60 days’ notice by mail (or electronic delivery
in accordance with the procedures of the Depository), [if applicable, insert - (1) on _________ in any year commencing with the year _________
and ending with the year _________ through operation of the sinking fund for this Series at a redemption price equal to 100% of the principal
amount, and (2)] at any time [on or after _________, ____] as a whole or in part, at the election of the Company, at the following redemption
prices (expressed as percentages of the principal amount): If redeemed [on or before _________, ____% and if redeemed] during the 12-month
period beginning of the years indicated,
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and thereafter at a redemption price equal to of the principal
amount, together in the case of any such redemption [if applicable, insert - (whether through operation of the sinking fund or otherwise)]
with accrued interest to the redemption date, but interest installments whose stated Maturity is on or prior to such redemption date will
be payable to the Holders of such Securities, or one or more predecessor securities, of record at the close of business on the relevant
record dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - The Securities of this
Series are subject to redemption upon not less than 15 days’ nor more than 60 days’ notice by mail (or electronic delivery
in accordance with the procedures of the Depository), (1) on _________ in any year commencing with the year _______ and ending with the
year _______ through operation of the sinking fund for this Series at the redemption prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after_______], as a whole
or in part, at the election of the Company, at the redemption prices for redemption otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning _______
of the years indicated,
Redemption
Price For
Redemption Through
Operation of the Sinking
Fund |
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Redemption
Price For
Redemption Otherwise
Than Through Operation
Year |
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Sinking Fund |
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and thereafter at a redemption price equal to _______% of the principal
amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest
to the redemption date, but interest installments whose Stated Maturity in on or prior to such redemption date will be payable to the
Holders of such Securities, or one or more predecessor securities, of record at the close of business on the relevant record dates referred
to on the face hereof, all as provided in the Indenture.]
[The sinking fund for this Series provides for
the redemption on _______ in each year beginning with the year _______ and ending with the year _______ of [not less than $_______ “mandatory
sinking fund”) and not more than] $_______ aggregate principal amount of Securities of this Series. Securities of this Series acquired
or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made [in the inverse order in which they become due).]]
[If the Security is subject to redemption, insert
- In the event of redemption of this Security in part only, a new Security or Securities of this Series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions that permit the
Company to elect either (1) to defease and be discharged from the entire indebtedness of this Security or (2) to be released from its
obligations under certain restrictive covenants and Events of Default with respect to this Security, in each case upon payment in full
of the Securities and compliance with certain conditions set forth in the Indenture.
[If the Security is convertible into or exchangeable
for common stock of the Guarantor, insert appropriate provisions and specify the conversion features and the form of conversion notice
pursuant to the Form of Conversion Notice set forth herein.]
[If the Security is not an Original Issue Discount
Security, insert - If an Event of Default with respect to Securities of this Series shall occur and be continuing, the principal of the
Securities of this Series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue-Discount
Security, insert - If an Event of Default with respect to Securities of this Series shall occur and be continuing, an amount of principal
of the Securities of this Series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to - Insert formula for determining the amount.
Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this Series shall terminate.]
[If Security is subordinate Debt, insert - The
Company and each Holder of the Securities of this Series, by accepting such Securities, agree that the payment of the principal, premium,
if any, and interest on such Securities is subordinated, to the extent and in the manner provided in the applicable [supplemental indenture][Officer’s
Certificate of the Company] creating this Series, to the prior payment in full of all present and future Senior Debt, as defined in the
applicable [supplemental indenture][Officer’s Certificate of the Company] and that the subordination provisions in the applicable
[supplemental indenture][Officer’s Certificate of the Company] relating to this Series of Securities are for the benefit of the
holders of Senior Debt. Each Holder of a Security by his or her acceptance thereof authorizes and directs the Trustee in his or her behalf
to take such action as may be necessary or appropriate to effectuate the subordination provided for in the Indenture and appoints the
Trustee his or her attorney-in-fact for any and all such purposes.]
The Indenture permits the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the Securities of each
Series to be affected under the Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of
a majority in principal amount of the Securities at the time outstanding of each Series to be affected, with certain exceptions as therein
provided with respect to certain modifications or amendments which may not be made without the consent of each Holder of such Security
affected thereby. The Indenture also permits certain amendments and modifications thereto from time to time by the Company, the Guarantor
and the Trustee without the consent of the Holders of any Series of the Securities to be affected thereby for certain specified purposes,
including curing ambiguities, defects or inconsistencies and making any such change that does not adversely affect the legal rights of
any Holder of such Series of the Securities, as provided therein.
The Indenture contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each Series at the time outstanding, on behalf of the Holders
of all Securities of such Series, to waive compliance by the Company or the Guarantor with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences with respect to such Series. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and Interest on this Security at the times, place and [rate(s)], and in the coin or Currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in the security register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on
this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and
the security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities
of this Series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this Series are issuable only
in registered form without coupons in denominations of $_______ and integral multiples of $_______ in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this Series are exchangeable for a like aggregate principal
amount of Securities of this Series and of like tenor of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the person in
whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and none of the
Company, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the
principal of (and premium, if any) or interest on this Security, or for any claim based hereon, or otherwise in respect hereof, or based
on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company, the Guarantor or of any successor corporation, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and released.
All terms used in this Security which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
Exhibit 4.2
OMNICOM FINANCE HOLDINGS PLC
as Issuer
OMNICOM GROUP INC.
as Guarantor
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 6, 2024
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
Debt Securities
First Supplemental Indenture dated as of March
6, 2024 (the “First Supplemental Indenture”) among Omnicom Finance Holdings plc, a public limited company organized
under the laws of England and Wales (the “Issuer”), Omnicom Group Inc., a New York corporation (“OGI”)
referred to as the “Guarantor”; the Guarantor together with the Issuer collectively referred to as the “Omnicom
Companies”), and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS,
the Omnicom Companies and the Trustee executed and delivered an indenture dated as of March 6, 2024 (the “Indenture”)
to provide for the issuance by the Issuer from time to time of Securities to be issued in one or more Series as provided in the Indenture;
WHEREAS, the issuance and sale of up to €600,000,000
aggregate principal amount of the Issuer’s 3.700% Senior Notes due 2032 (the “Securities”) have been authorized
by the board of directors of the Issuer;
WHEREAS, the Issuer desires to issue and sell €600,000,000
aggregate principal amount of the 2032 Notes on the date hereof;
WHEREAS, the Guarantee of the Securities has been
authorized by the board of directors of the Guarantor;
WHEREAS, the Issuer desires to enter into this
First Supplemental Indenture pursuant to Sections 2.2, 2.14.1 and 9.1 of the Indenture to supplement the Indenture to establish the form
and terms of the Securities, and the Guarantor desires to enter into this First Supplemental Indenture to issue its Guarantee of the Securities;
and
NOW,
THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, that, for and in consideration of the above premises, it is mutually covenanted
and agreed, for the sole, equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 Relation to Base Indenture.
This First Supplemental Indenture constitutes an
integral part of the Indenture. In the event of inconsistencies between the Indenture and this First Supplemental Indenture, the terms
hereof shall govern.
Section 1.2. Definitions.
(a) All
of the terms used in this First Supplemental Indenture which are defined in the Indenture shall have the meanings specified in the Indenture,
unless otherwise provided herein or unless the context otherwise requires, and for the purposes of this First Supplemental Indenture and
the Securities, the following terms have the meanings set forth in this Section:
“Below Investment Grade Rating Event”
occurs if both the rating on the Securities is lowered by each of the Rating Agencies and such Securities are rated below Investment Grade
by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control
until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so
long as the rating of such Securities is under publicly announced consideration for possible downgrade by any of the Rating Agencies);
provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed
to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for
purposes of the definition of Change of Control Triggering Event hereunder) if any of the Rating Agencies making the reduction in rating
to which this definition would otherwise apply does not announce or publicly confirm or inform the Issuer and Trustee in writing that
the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect
of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment
Grade Rating Event).
“Change of Control” means the
occurrence of any of the following:
| (1) | the sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of OGI
and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other
than to OGI or one of its Subsidiaries; |
| (2) | the consummation of any transaction (including without limitation,
any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange
Act), other than OGI or one of its wholly owned Subsidiaries, becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the then outstanding shares of OGI’s Voting Stock, measured
by voting power rather than number of shares; or |
| (3) | the adoption of a plan relating to the liquidation or dissolution
of OGI. |
Notwithstanding the foregoing, a transaction shall
not be deemed to involve a Change of Control if (i) OGI becomes a wholly owned Subsidiary of a holding company and (ii) the holders of
the Voting Stock of such holding company immediately following such transaction are substantially the same as the holders of OGI’s
Voting Stock immediately prior to such transaction.
“Change of Control Offer” has
the meaning specified in Section 3.2 of this First Supplemental Indenture.
“Change of Control Payment Date”
has the meaning specified in Section 3.2 of this First Supplemental Indenture.
“Change of Control Purchase Price”
has the meaning specified in Section 3.2 of this First Supplemental Indenture.
“Change of Control Triggering Event”
means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
“Comparable Government Bond”
means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by
the Issuer, a German federal government bond whose maturity is closest to the Stated Maturity of the Securities to be redeemed, or if
such independent investment bank in its discretion determines that such similar bond is not in issue, such other German federal government
bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German federal government
bonds selected by the Issuer, determine to be appropriate for determining the Comparable Government Bond Rate.
“Comparable Government Bond Rate”
means the price, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), at which the gross redemption
yield on the Securities to be redeemed, if they were to be purchased at such price on the third Business Day prior to the date fixed for
redemption, of the Comparable Government Bond would be equal to the gross redemption yield on such Business Day of the Comparable Government
Bond on the basis of the middle market price of such Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business
Day as determined by an independent investment bank selected by the Issuer.
“Consolidated Net Worth” means
the consolidated net worth of OGI, as determined in accordance with GAAP.
“Debt” of any person means,
without duplication: (a) all indebtedness of such person for borrowed money; (b) all obligations of such person for the deferred purchase
price of property or services (other than earn-out payment obligations of such person in connection with the purchase of property or services
to the extent they are still contingent); (c) all obligations of such person evidenced by notes, bonds, debentures or other similar instruments;
(d) all obligations of such person created or arising under any conditional sale or other title retention agreement with respect to property
acquired by such person (even though the rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property); (e) all obligations of such person as lessee under leases to the extent that such
leases have been or should be, in accordance with GAAP, recorded as finance leases; (f) all obligations, contingent or otherwise, of such
person in respect of acceptances, letters of credit or similar extensions of credit; (g) all obligations of such person in respect of
Hedge Agreements; (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below and other payment obligations
guaranteed, directly or indirectly, in any manner by such person, or in effect guaranteed, directly or indirectly, by such person through
an agreement (1) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (2) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss, (3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered)
or (4) otherwise to assure a creditor against loss; and (i) all Debt referred to in clauses (a) through (h) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such person, even though such person has not assumed or become liable for the payment of such Debt.
“Euro” or “€”
means the single currency introduced at the third stage of the European Economic and Monetary Union pursuant to the treaty establishing
the European Community, as amended.
“GAAP” means generally accepted
accounting principles in the United States of America.
“Hedge Agreements” means interest
rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts
and other similar agreements.
“Investment Grade” means a rating
equal to or higher than Baa3 (or its equivalent under any successor rating categories) by Moody’s and BBB- (or its equivalent under
any successor rating categories) by S&P, or, in each case, if such Rating Agency ceases to rate the Securities or fails to make a
rating of the Securities publicly available for reasons outside of the Issuer’s and the Guarantor’s control, the equivalent
investment grade credit rating by the replacement agency selected by the Issuer in accordance with the procedures described under clause
(2) of the definition of “Rating Agencies.”
“Lien” means any lien, security
interest or other charge or encumbrance of any kind, or any other type of preferential arrangement intended to provide security for the
payment or performance of an obligation, including, without limitation, the lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to real property.
“Moody’s” means Moody’s
Investors Service, Inc., and its successors.
“par call date” has the meaning
specified in Section 3.1 of this First Supplemental Indenture.
“Permitted Liens” means such
of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to the extent not yet due and payable, or being contested in good faith by appropriate
proceedings; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s
Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more
than 30 days or that are being contested in good faith and by appropriate proceedings that prevent the forfeiture or sale of the asset
subject to such Lien; (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to
secure public or statutory obligations or, in any such case, to secure reimbursement obligations under letters of credit or bonds issued
to support such obligations; and (d) easements, rights of way and other encumbrances on title to real property that do not render title
to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes.
“Rating Agencies” means (1)
each of Moody’s and S&P; and (2) if any of Moody’s or S&P ceases to rate the Securities or fails to make a rating
of the Securities publicly available for reasons outside of the Issuer’s and the Guarantor’s control, a “nationally
recognized statistical rating organization,” as defined in Section 3(a)(62) of the Exchange Act, selected by the Issuer as a replacement
agency for Moody’s or S&P, or both of them, as the case may be.
“Remaining Scheduled Payments”
means, with respect to each Security to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that
would be due after the related redemption date but for such redemption calculated as if the Stated Maturity of such Security was the par
call date; provided, however, that, if such redemption date is not an interest payment date with respect to such Security, the amount
of the next succeeding scheduled interest payment thereon shall be reduced by the amount of interest accrued thereon to, but excluding,
such redemption date.
“S&P” means S&P Global
Ratings, and its successors.
“Voting Stock” means, with respect
to any person, capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote
for the election of directors (or persons performing similar functions) of such person, even if the right so to vote has been suspended
by the happening of such a contingency.
(b) The
definition of “Business Day” in the Indenture is hereby amended and restated with respect to the Securities as follows:
“Business Day” means any day other
than a Saturday or Sunday, (1) which is not a day on which banking institutions in The City of New York or London are authorized or required
by law, regulation or executive order to close and (2) on which the Trans-European Automated Real Time Gross Settlement Express Transfer
system (the “TARGET2” system), or any successor thereto, is open.
ARTICLE TWO
THE SECURITIES
Section 2.1. Terms of the Securities.
The Securities shall have the following terms,
established pursuant to Section 2.2 of the Indenture:
2.1.1. Pursuant to Section 2.2.1 of the Indenture,
the title of the Securities to be issued under the Indenture shall be the “3.700% Senior Notes due 2032”;
2.1.2. Pursuant to Section 2.2.2 of the Indenture,
the price or prices at which the Securities shall be issued shall be 99.782% of the aggregate principal amount thereof;
2.1.3. Pursuant to Section 2.2.3 of the Indenture,
the aggregate principal amount of the Securities that may be authenticated and delivered under this First Supplemental Indenture shall
be limited to €600,000,000;
2.1.4. Pursuant to Section 2.2.4 of the Indenture,
100% of the Securities shall be payable, unless earlier redeemed pursuant to their terms, on March 6, 2032;
2.1.5. Pursuant to Section 2.2.5 of the Indenture,
the Securities shall bear interest at a rate equal to 3.700% per annum; interest on the Securities shall accrue from March 6, 2024 until
the principal thereof is paid or duly provided for; interest on the Securities shall be payable annually in arrears in cash on March 6
of each year, commencing on March 6, 2025 to Holders of record on February 19 (whether or not a Business Day) immediately preceding the
applicable interest payment date. Interest on the Securities shall be computed from and including the prior interest payment date (or,
in the case of the first interest payment date, from and including March 6, 2024) to but excluding the next interest payment date on the
basis of the actual number of days elapsed in the period for which interest is being calculated and the actual number of days from and
including the last day on which interest was paid on the Securities (or March 6, 2024 if no interest has been paid on the Securities),
to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) (as defined
in the rulebook of the International Capital Markets Association). In the event that any principal or interest on the Securities is not
paid when due, whether at Maturity or otherwise, then to the extent permitted by law such overdue principal and interest shall bear interest
until paid at the rate of interest set forth in this Section 2.1.5 of this First Supplemental Indenture, compounded annually;
2.1.6. Pursuant to Section 2.2.6 of the Indenture,
the place or places where the principal of and interest in the Securities shall be payable shall be as set forth in the Securities, the
form of which is attached hereto as Exhibit A;
2.1.7. Pursuant to Section 2.2.7 of the Indenture,
the Securities shall be subject to redemption at the option of the Issuer as set forth in Article III and Section 13.1 of the Indenture,
as modified by Section 3.1 of this First Supplemental Indenture;
2.1.8. Pursuant to Section 2.2.8 of the Indenture,
the Issuer shall not be obligated to redeem or purchase the Securities pursuant to any sinking fund or at the option of a Holder thereof
prior to the Maturity;
2.1.9. Pursuant to Section 2.2.9 of the Indenture,
the Issuer shall not be obligated to redeem or purchase the Securities pursuant to any repurchase obligations or at the option of a Holder
thereof prior to the Maturity, except pursuant to Section 3.2 of this First Supplemental Indenture;
2.1.10. Pursuant to Section 2.2.10, the Securities
shall be issuable in denominations of €100,000 and integral multiples of €1,000 in excess thereof;
2.1.11. Pursuant to Section 2.2.11 of the Indenture,
the Securities shall be issued as Global Securities, and the Issuer hereby designates each of Euroclear Bank S.A./N.V. (“Euroclear”)
and Clearstream Banking, S.A., Luxembourg (“Clearstream, Luxembourg”) initially as a Depository for the Securities.
Each Global Security representing the Securities shall be registered initially in the name of BT Globenet Nominees Limited as nominee
for Deutsche Bank AG, London Branch, the common depository of Euroclear and Clearstream, Luxembourg;
2.1.12. Pursuant to Section 2.2.15 of the Indenture,
OGI shall be subject to the additional restrictions as set forth in Section 4.1 and Article V of this First Supplemental Indenture;
2.1.13. Pursuant to Section 2.2.16 of the Indenture,
the provisions of Section 13.2 of the Indenture shall apply to the Securities;
2.1.14. Pursuant to Section 2.2.16 of the Indenture,
the provisions of Article VIII of the Indenture shall apply to the Securities, except that for purposes of Article VIII of the Indenture,
the definition of “Foreign Government Obligations” shall be modified with respect to the Securities as follows:
“Foreign Government Obligations”
means securities denominated in Euro that are (i) direct obligations of the Federal Republic of Germany, the payments of which are supported
by the full faith and credit of the German government or (ii) obligations of a person controlled or supervised by and acting as an agency
or instrumentality of the Federal Republic of Germany the timely payments of which are unconditionally guaranteed as a full faith and
credit obligation of the German government, which, in either case under clauses (i) or (ii) are not callable or redeemable at the option
of the issuer thereof;
2.1.15. Pursuant to Section 2.2.18 of the Indenture,
the obligations of the Issuer under the Indenture and this First Supplemental Indenture with respect to the Securities issued under this
First Supplemental Indenture shall be guaranteed by the Guarantor in accordance with Article XII of the Indenture;
2.1.16. Pursuant to Section 2.2.22 of the Indenture,
application has been made to have the Securities listed on The New York Stock Exchange. The listing application is subject to approval
by The New York Stock Exchange. If such a listing is obtained, the Issuer shall have no obligation to maintain such listing, and the Issuer
may delist the Securities at any time;
2.1.17. Pursuant to Section 2.2.23 of the Indenture,
all payments of interest, principal and premium, if any, including payments made upon any redemption or repurchase of the Securities,
shall be payable in Euro. If, on or after February 28, 2024, Euro is unavailable to the Issuer or, in the case of the Guarantee, the Guarantor
due to the imposition of exchange controls or other circumstances beyond the Issuer’s or the Guarantor’s control or if Euro
is no longer being used by the then-member states of the European Economic and Monetary Union that have adopted Euro as their currency
or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect
of the Securities shall be made in Dollars until Euro is again available to the Issuer or, in the case of the Guarantee, the Guarantor
or so used. In such circumstances, the amount payable on any date in Euro shall be converted into Dollars by the Issuer or the Guarantor,
as applicable, at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to
the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most
recent Dollar/Euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant
payment date. Any payment in respect of the Securities so made in Dollars shall not constitute an Event of Default under the Securities
or the Indenture. Neither the Trustee nor the Paying Agent for the Securities shall have any responsibility for any calculation or conversion
in connection with the foregoing;
2.1.18. Pursuant to Section 2.2 of the Indenture,
the Issuer may, without the consent of the Holders of the Securities, issue additional Securities having the same ranking and the same
interest rate, maturity and other terms as the Securities issued on the date hereof (except for the issue date, the price to the public,
the payment of interest accruing prior to the issue date of such additional Securities or except for first payment of interest following
the issue date of such additional Securities). Any such additional Securities shall have the same terms as the Securities of issued on
the date hereof, provided that such additional Securities subsequently issued are fungible for U.S. federal income tax purposes with any
Securities previously issued; and
2.1.19. Section 2.17 of the Indenture shall be
applicable to the Securities.
Section 2.2. Amendments to the Indenture.
The Indenture is hereby amended with respect to the Securities only as follows:
(a) The
phrase, “10:00 a.m., New York City time (or such other time as may be specified pursuant to Section 2.2 with respect to any Security
denominated in a Foreign Currency)”, in Section 4.1 of the Indenture is hereby replaced by, “10:00 a.m., London time”;
(b) The
phrase, “Subject to Article V”, in Section 4.5 of the Indenture is hereby replaced by, “Subject to Article V and Article
Five of the First Supplemental Indenture”;
(c) The
phrase, “to comply with Article V”, in Section 9.1(b) of the Indenture is hereby replaced by, “to comply with Article
V or Article Five of the First Supplemental Indenture”; and
(d) The
phrase, “otherwise in compliance with Article V of this Indenture”, in Section 12.1.12 of the Indenture is hereby replaced
by, “otherwise in compliance with Article V of this Indenture and Article Five of the First Supplemental Indenture”.
ARTICLE THREE
ADDITIONAL REDEMPTION PROVISION
Section 3.1. Optional Redemption.
Prior to December 6, 2031 (the date that is three
months prior to the maturity date of the notes (“par call date”)), the Securities shall be redeemable, as a whole or in part,
at the Issuer’s option, at any time or from time to time, upon mailed notice (or electronic notice, as applicable) to the registered
address of each Holder of the Securities at least 15 days but not more than 60 days prior to the redemption. The redemption price, as
determined by the Issuer, shall be equal to the greater of (1) 100% of the principal amount of the Securities to be redeemed and (2) the
sum of the present values of the Remaining Scheduled Payments on such Securities discounted to the date of redemption, on an annual basis
(assuming an ACTUAL/ACTUAL (ICMA) day count fraction), at the applicable Comparable Government Bond Rate plus 20 basis points, plus accrued
and unpaid interest thereon, if any, to, but excluding, the redemption date.
On or after the par call date, the Securities shall
be redeemable, as a whole or in part, at the Issuer’s option, at any time or from time to time, upon mailed notice (or electronic
notice, as applicable) to the registered address of each Holder of the Securities at least 15 days but not more than 60 days prior to
the redemption at a redemption price of 100% of the principal amount of such Securities, plus accrued and unpaid interest thereon, if
any, to, but excluding, the redemption date.
On and after the redemption date, interest shall
cease to accrue on the Securities or any portion of the Securities called for redemption (unless the Issuer defaults in the payment of
the redemption price and accrued interest). On or before 10:00 a.m. London time on the redemption date, the Issuer shall deposit with
the Paying Agent (or the Trustee) money sufficient to pay the redemption price of and accrued interest on the Securities to be redeemed
on that date. If less than all of the Securities are to be redeemed, the Securities to be redeemed shall be selected by such method as
the Trustee deems fair and appropriate, subject to the procedures of the Depositories as to Global Securities.
Section 3.2. Repurchase Upon Change of Control
Triggering Event.
Upon the occurrence of a Change of Control Triggering
Event, unless the Issuer has exercised its option to redeem the Securities pursuant to Section 3.1 of this First Supplemental Indenture
or Section 13.1 of the Indenture, each Holder of the Securities shall have the right to require the Issuer to repurchase all or a portion
of such Holder’s Securities pursuant to a change of control offer pursuant to, and in accordance with, the provisions of this Section
3.2 (a “Change of Control Offer”), at a purchase price (the “Change of Control Purchase Price”)
equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of repurchase, subject to the right
of Holders of Securities of such Securities on the relevant record date to receive interest due on the relevant interest payment date.
Within 30 days following the date upon which the
Issuer becomes aware that a Change of Control Triggering Event has occurred, or at the Issuer’s option, prior to any Change of Control
but after the public announcement of the pending Change of Control, the Issuer shall be required to send, by first class mail or electronic
delivery, a notice to each Holder of the Securities, with a copy to the Trustee, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60
days from the date such notice is mailed or delivered, other than as may be required by law (the “Change of Control Payment Date”).
The notice, if mailed or delivered prior to the date of consummation of the Change of Control, shall state that the Change of Control
Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date. The Issuer
shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes
such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and such
third party purchases all Securities properly tendered and not withdrawn under its offer.
The Issuer shall be required to comply with the
requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control Triggering Event. To
the extent that the provisions of any securities laws or regulations conflict with this Section 3.2 and the Securities, the Issuer shall
be required to comply with those securities laws and regulations and shall not be deemed to have breached its obligations under this Section
3.2 and the Securities by virtue of any such compliance.
On the Change of Control Payment Date, the Issuer
shall, to the extent lawful:
| (a) | accept for payment all Securities or portions of Securities properly tendered and not withdrawn pursuant to the Change of Control
Offer; |
| (b) | deposit with the Paying Agent an amount equal to the Change of Control Purchase Price in respect of all Securities or portions of
Securities properly tendered and not withdrawn; and |
| (c) | deliver or cause to be delivered to the Trustee the Securities properly accepted together with an Officer’s Certificate stating
the aggregate principal amount of Securities or portions of Securities being repurchased. |
ARTICLE FOUR
LIMITATION ON LIENS
Section 4.1. Limitation on Liens.
OGI shall not, and shall not permit any of its
Subsidiaries to, create or suffer to exist any Lien on or with respect to any of OGI’s properties, whether now owned or hereafter
acquired, to secure any Debt of OGI, any direct or indirect Subsidiary of OGI or any other person without securing the Securities equally
and ratably with such Debt to which such Liens relate for so long as such Debt shall be so secured, other than:
(a) Permitted
Liens;
(b) purchase
money Liens upon or in any real property or equipment acquired or held by OGI or any Subsidiary of OGI in the ordinary course of business
to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition
of such property or equipment, or Liens existing on such property or equipment at the time of its acquisition (other than any such Liens
created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals
or replacements of any of the foregoing for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover
any properties of any character other than the real property or equipment being acquired and fixed improvements thereon or accessions
thereto, and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being
extended, renewed or replaced;
(c) Liens
existing on February 28, 2024;
(d) Liens
on property of a person existing at the time such person is merged into, consolidated with, or acquired by OGI or any Subsidiary of OGI
or becomes a Subsidiary of OGI; provided that such Liens were not created in contemplation of such merger, consolidation or acquisition
and do not extend to any assets other than those of the person so merged into or consolidated with OGI or such Subsidiary or acquired
by OGI or such Subsidiary;
(e) Liens
granted by Subsidiaries of OGI (other than the Issuer and OCI) to secure Debt owed to OGI or a wholly owned Subsidiary of OGI;
(f) Liens
arising out of a judgment, decree or order of court being contested in good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of OGI or the books of its Subsidiaries, as the case may be, in conformity with GAAP;
(g) Debt
of a person existing at the time such person is merged into or consolidated with OGI or becomes a Subsidiary of OGI provided that such
Debt was not created in contemplation of such merger, consolidation or acquisition and provided further that the aggregate principal amount
of such Debt shall not exceed $50,000,000 at any time outstanding;
(h) Liens
to secure any extension, renewal, refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole
or in part, of any Debt secured by Liens referred to above or Liens created in connection with any amendment, consent or waiver relating
to such Debt, so long as such Lien does not extend to any other property, the amount of Debt secured is not increased (other than by the
amount equal to any costs and expenses incurred in connection with any extension, renewal, refinancing or refunding) and the Debt so secured
does not exceed the fair market value (as determined by OGI’s Board of Directors in good faith) of the assets subject to such Liens
at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the case may be;
(i) Any
assignment of accounts receivable (a) by and among OGI and its Subsidiaries or (b) pursuant to non-recourse factoring or similar
arrangements or otherwise in an aggregate amount not to exceed in any fiscal year the greater of $500,000,000 (measured as the face value
of such accounts receivable at the time of assignment) and 10.0% of the consolidated accounts receivable of OGI and its Subsidiaries as
reflected in the consolidated balance sheet of OGI as of the end of the fiscal year of OGI most recently ended prior to such assignment
for which financial statements are available; and
(i) (a)
Liens otherwise prohibited by this covenant, securing Debt or other obligations in an aggregate amount at any time outstanding plus (b) the
aggregate face value at the time of assignment of such accounts receivable assigned, the assignment of which is not otherwise permitted
by the foregoing exceptions, in an aggregate amount not to exceed 20% of Consolidated Net Worth of OGI and its Subsidiaries as set forth
in the OGI’s most recently available financial statements.
ARTICLE FIVE
SUCCESSORS
Section 5.1 When OGI May Merge, Etc. OGI
shall not consolidate with or merge into, or convey, transfer or lease all or substantially all of its properties and assets to, any person
(a “successor person”) unless:
(a) either
(i) OGI is the continuing person or (ii) the resulting, surviving or transferee person is an entity organized under the laws of the United
States;
(b) the
successor person expressly assumes by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, OGI’s obligations with respect to its Guarantee of the Securities, the Indenture and this First Supplemental Indenture;
and
(c) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
OGI shall deliver to the Trustee prior
to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel stating
that the proposed transaction and such supplemental indenture comply with the Indenture and this First Supplemental Indenture.
For purposes of the foregoing, the conveyance,
transfer or lease of the properties and assets of one or more Subsidiaries of OGI (other than to OGI or another Subsidiary of OGI), which,
if such assets were owned by OGI, would constitute all or substantially all of the properties and assets of OGI, shall be deemed to be
the transfer of all or substantially all of the properties and assets of OGI, but a bona fide pledge or hypothecation shall be deemed
not to be prohibited by the Indenture and this First Supplemental Indenture.
Section 5.2 Successor Corporation
Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of
the assets of OGI in accordance with Section 5.1, the successor corporation formed by such consolidation or into or with which OGI is
merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, OGI under the Indenture and this First Supplemental Indenture with the same effect as if such successor person
has been named as OGI herein; provided, however, that the predecessor OGI in the case of a sale, lease, conveyance or other disposition
shall not be released from the obligation to pay the principal of and interest, if any, on the Securities. OGI, the Trustee and the successor
person shall enter into a supplemental indenture to evidence the succession and substitution of such successor person and such discharge
and release of OGI.
The provisions of Article V of the Indenture
shall also be applicable to the Securities.
ARTICLE SIX
LIABILITY OF TRUSTEE
Section 6.1 Trustee Not Responsible for Recitals.
The Trustee shall not be responsible in any matter
whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the recitals
contained herein, all of which are made solely by the Issuer or for or with respect to (i) the proper authorization by the Issuer by action
or otherwise, (ii) the due execution hereof by the Issuer or (iv) the consequences of any amendment herein provided for, and the Trustee
makes no representation with respect to any such matters.
ARTICLE SEVEN
MISCELLANEOUS
Section 7.1. Ratification and Effect.
Except
as hereby expressly amended, the Indenture is in all respects ratified and confirmed and all the terms, provisions and conditions thereof
shall be and remain in full force and effect.
Upon
and after the execution of this First Supplemental Indenture, each reference in the Indenture to “this Indenture,” “hereunder,”
“hereof” or words of like import referring to the Indenture shall mean and be a reference to the Indenture as modified hereby.
Section 7.2 Governing Law.
THIS
FIRST SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 7.3 Counterpart Originals.
This
First Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Facsimile, documents executed, scanned and transmitted electronically and electronic signatures, including those created or transmitted
through a software platform or application, shall be deemed original signatures for purposes of this First Supplemental Indenture and
all matters and agreements related thereto, with such facsimile, scanned and electronic signatures having the same legal effect as original
signatures. The parties agree that this First Supplemental Indenture or any instrument, agreement or document necessary for the consummation
of the transactions contemplated by this Indenture or related hereto or thereto (including, without limitation, addendums, amendments,
notices, instructions, communications with respect to the delivery of securities or the wire transfer of funds or other communications)
(“Executed Documentation”) may be accepted, executed or agreed to through the use of an electronic signature in accordance
with applicable laws, rules and regulations in effect from time to time applicable to the effectiveness and enforceability of electronic
signatures. Any Executed Documentation accepted, executed or agreed to in conformity with such laws, rules and regulations will be binding
on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any third-party
electronic signature capture service providers as may be reasonably chosen by a signatory hereto or thereto. When the Trustee acts on
any Executed Documentation sent by electronic transmission, the Trustee will not be responsible or liable for any losses, costs or expenses
arising directly or indirectly from its reliance upon and compliance with such Executed Documentation, notwithstanding that such Executed
Documentation (a) may not be an authorized or authentic communication of the party involved or in the form such party sent or intended
to send (whether due to fraud, distortion or otherwise) or (b) may conflict with, or be inconsistent with, a subsequent written instruction
or communication; it being understood and agreed that the Trustee shall conclusively presume that Executed Documentation that purports
to have been sent by an authorized officer of a person has been sent by an authorized officer of such person. The party providing Executed
Documentation through electronic transmission or otherwise with electronic signatures agrees to assume all risks arising out of such electronic
methods, including, without limitation, the risk of the Trustee acting on unauthorized instructions and the risk of interception and misuse
by third parties.
Section 7.4 Effect of Headings.
The headings of the Articles and Sections of this
First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in
no way modify or restrict any of the terms or provisions hereof.
Section 7.5. Severability.
In case any provision in this First Supplemental
Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 7.6. Modification, Amendment and Waiver.
The provisions of this First Supplemental Indenture
may not be amended, supplemented, modified or waived except by an execution of a Supplemental Indenture executed by each of the Omnicom
Companies and the Trustee. Any such amendment shall comply with Article IX of the Indenture. Until an amendment, waiver or other action
by Holders becomes effective, a consent thereto by a Holder of a Security hereunder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of the Security that evidences the same obligation as the consenting Holder’s Security, even
if notation of the consent, waiver or action is not made on the Security. However, any such Holder or subsequent Holder may revoke the
consent, waiver or action as to such Holder’s Security or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment, waiver or action becomes effective. After an amendment, waiver or action becomes effective, it shall bind
every Holder.
Section 7.7. Ratification of Indenture; Supplemental
Indenture Part of Indenture.
Except as expressly amended hereby, the Indenture
is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
This First Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of the Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
Section 7.8. Trust Indenture Acts Controls.
If any provision of this First Supplemental Indenture
limits, qualifies or conflicts with any provision of the Trust Indenture Act of 1939, as amended (the “TIA”), that
is required under the TIA to be part of and govern any provision of this First Supplemental Indenture, the provision of the TIA shall
control. If any provision of this First Supplemental Indenture modifies or excludes any provisions of the TIA that may be so modified
or excluded, the provisions of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this First Supplemental
Indenture, as the case may be.
Section 7.9. Consent to Jurisdiction; Service
of Process; and Waiver of Jury Trial.
Each of the Issuer and the Guarantor agrees that
any legal suit, action or proceeding brought by any party to enforce any rights under or with respect to this First Supplemental Indenture,
any Security or any other document or the transactions contemplated hereby or thereby may be instituted in any state or federal court
in The Borough of Manhattan, The City of New York, State of New York, United States of America, 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 such suit, action or proceeding, irrevocably
waives to the fullest extent permitted by law any claim that and agrees not to claim or plead in any court that any such action, suit
or proceeding brought in such court has been brought in an inconvenient forum and irrevocably submits to the non-exclusive jurisdiction
of any such court in any such suit, action or proceeding or for recognition and enforcement of any judgment in respect thereof.
To the extent that the Issuer or the Guarantor
or any of their respective Subsidiaries has or hereafter may acquire any immunity from jurisdiction of any court (including any court
in the United States, the State of New York or other jurisdiction in which the Issuer, the Guarantor or any successor thereof may be organized
or any political subdivisions thereof) or from any legal process (whether through service of notice, attachment prior to judgment, attachment
in aid of execution, execution or otherwise) with respect to itself or its property or assets, this First Supplemental Indenture, the
Securities, the transactions contemplated hereby or thereby or any other documents or actions to enforce judgments in respect of any thereof,
then each of the Issuer and the Guarantor hereby irrevocably waives, and shall cause its Subsidiaries to waive, such immunity, and any
defense based on such immunity, in respect of its obligations under the above-referenced documents and the transactions contemplated thereby,
to the extent permitted by law.
The Issuer hereby appoints Omnicom Group Inc.,
280 Park Avenue, New York, New York 10017, Attention: General Counsel (the “Agent for Service”), and OGI hereby accepts
such appointment, as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding
that may be instituted in any state or federal court in the Borough of Manhattan, The City of New York, State of New York, United States
of America. The Issuer agrees that service of process upon the Agent for Service shall be deemed in every respect effective service of
process upon the Issuer in any such suit, action or proceeding. The Issuer further agrees to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of the Agent
for Service in full force and effect so long as any of the Securities shall be outstanding.
THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN
ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE SECURITIES, THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY OR ANY OTHER
DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.
[Signatures pages follow]
IN WITNESS WHEREOF, the parties hereto have caused
this First Supplemental Indenture to be duly executed as of the day and year first above written.
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OMNICOM FINANCE HOLDINGS PLC |
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By: |
/s/ Catherine Margaret Porter |
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Name: |
Catherine Margaret Porter |
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Title: |
Director |
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OMNICOM GROUP INC. |
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By: |
/s/ Philip J. Angelastro |
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Name: |
Philip J. Angelastro |
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Title: |
Executive Vice President and
Chief Financial Officer |
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee |
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By: |
/s/ Sebastian Hidalgo |
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Name: |
Sebastian Hidalgo |
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Title: |
Assistant Vice President |
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By: |
/s/ Carol Ng |
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Name: |
Carol Ng |
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Title: |
Vice President |
Exhibit A
FORM OF GLOBAL SECURITY FOR THE 3.700% SENIOR
NOTES DUE 2032
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITORY (AS
DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.7 OF THE INDENTURE, (III)
THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED
TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR TO ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED
IN THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO SUCH ENTITY
AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.
3.700% Senior Notes due 2032
ISIN: XS2776001377
Common Code: 277600137
CUSIP No. 681919 BE5
€600,000,000
No. 1
OMNICOM FINANCE HOLDINGS PLC, a public limited
company organized under the laws of England and Wales (the “Issuer,” which term includes any successor person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to BT GLOBENET NOMINEES LIMITED, or registered assigns, the principal
sum of €600,000,000 on March 6, 2032 and to pay interest thereon from March 6, 2024 or from the most recent interest payment date
to which interest has been paid or duly provided for, annually on March 6 in each year, commencing March 6, 2025, at the rate of 3.700%
per annum, set forth below. The interest so payable, and punctually paid or duly provided for, on any interest payment date shall, as
provided in such Indenture, be paid to the person in whose name this Security (or one or more predecessor securities) is registered at
the close of business on the regular record date for such interest, which shall be February 19 of each year (whether or not a Business
Day), next preceding such interest payment date. Any such interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such regular record date and may either be paid to the person in whose name this Security (or one or more
predecessor securities) is registered at the close of business on a special record date for the payment of such defaulted interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this Series not less than 10 days prior to such special
record date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which
the Securities of this Series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said
Indenture).
Distributions of principal, premium, if any, and
interest with respect to this Security shall be credited in Euro to the extent received by Euroclear or Clearstream, Luxembourg from the
Paying Agent to the cash accounts of Euroclear or Clearstream, Luxembourg participants in accordance with the relevant system’s
rules and procedures.
Reference is hereby made to the further provisions
of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth
at this place.
This Security is fully and unconditionally guaranteed
by Omnicom Group Inc., a corporation duly organized and existing under the laws of the State of New York (“OGI”) referred
to as the “Guarantor”, as provided in the Indenture.
This Security shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be construed in accordance with and governed by the laws of said
state.
By the execution and delivery of this Security,
the Issuer (i) acknowledges that it has irrevocably designated and appointed OGI (together with any successor, the “Agent for Service”),
as its authorized agent upon which process may be served in any suit or proceeding based on or arising out of the Securities, that may
be instituted in any U.S. federal or state court in the Borough of Manhattan in the City of New York, County and State of New York, or
brought under U.S. federal or state securities laws, and acknowledges that the Agent for Service has accepted such designation, (ii) submits
to the jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon the Agent for Service
shall be deemed in every respect effective service of process upon the Issuer in any such suit or proceeding. The Issuer further agrees
to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue
such designation and appointment of the Agent for Service in full force and effect so long as any of the Securities shall be outstanding.
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument
to be duly executed.
Dated: |
OMNICOM FINANCE HOLDINGS PLC |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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This is one of the Securities of the Series designated
therein referred to in the within-mentioned Indenture.
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Deutsche Bank Trust Company Americas, as Trustee |
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By: |
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Authorized Signatory |
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Dated: |
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Reverse of Security
OMNICOM FINANCE HOLDINGS PLC
3.700% Senior Notes due 2032
This Security is one of a duly authorized issue
of securities of the Issuer, designated as its 3.700% Senior Notes due 2032 (herein called the “Securities”), issued and to
be issued in one or more Series under an Indenture, dated as of March 6, 2024 (the “Base Indenture”), between the Issuer,
the Guarantor and Deutsche Bank Trust Company Americas, as Trustee (herein called the “Trustee,” which term includes any successor
trustee under the Indenture), as supplemented by the First Supplemental Indenture dated as of March 6, 2024, between the Issuer, the Guarantor
and the Trustee (the “First Supplemental Indenture” and together with the Base Indenture, the “Indenture”), to
which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the Series designated on the face hereof,
initially limited in aggregate principal amount to €600,000,000. Capitalized terms used in this Security and not defined herein have
the meaning ascribed thereto in the Indenture.
Deutsche Bank Trust Company Americas, the Trustee
under the Indenture, has been appointed by the Issuer as Paying Agent, Registrar and transfer agent with regard to the Securities. Deutsche
Bank AG, London Branch will serve initially as common depositary of the Depositories with regard to the Securities.
In case an Event of Default shall have occurred
and be continuing, the principal of and accrued interest on all Securities may be declared, and upon said declaration, shall become due
and payable, in the manner, with the effect and subject to the conditions provided for in the Indenture.
Prior to December 6, 2031 (the “par call
date”), the Securities shall be redeemable, as a whole or in part, at the Issuer’s option, at any time or from time to time,
upon mailed notice (or electronic notice, as applicable) to the registered address of each Holder of the Securities at least 15 days but
not more than 60 days prior to the redemption. The redemption price, as determined by the Issuer, shall be equal to the greater of (1)
100% of the principal amount of the Securities to be redeemed and (2) the sum of the present values of the Remaining Scheduled Payments
on such Securities discounted to the date of redemption, on an annual basis (assuming an ACTUAL/ACTUAL (ICMA) day count fraction), at
the applicable Comparable Government Bond Rate plus 20 basis points, plus accrued and unpaid interest thereon, if any, to, but excluding,
the redemption date.
On or after the par call date, the Securities shall
be redeemable, as a whole or in part, at the Issuer’s option, at any time or from time to time, upon mailed notice (or electronic
notice, as applicable) to the registered address of each Holder of the Securities at least 15 days but not more than 60 days prior to
the redemption at a redemption price of 100% of the principal amount of such Securities, plus accrued and unpaid interest thereon, if
any, to, but excluding, the redemption date.
“Comparable Government Bond”
means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by
the Issuer, a German federal government bond, whose maturity is closest to the Stated Maturity of the Securities to be redeemed, or if
such independent investment bank in its discretion determines that such similar bond is not in issue, such other German federal government
bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German federal government
bonds selected by the Issuer, determine to be appropriate for determining the Comparable Government Bond Rate.
“Comparable Government Bond Rate”
means the price, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), at which the gross redemption
yield on the Securities to be redeemed, if they were to be purchased at such price on the third Business Day prior to the date fixed for
redemption, of the Comparable Government Bond would be equal to the gross redemption yield on such Business Day of the Comparable Government
Bond on the basis of the middle market price of such Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business
Day as determined by an independent investment bank selected by the Issuer.
“Remaining Scheduled Payments”
means, with respect to each Security to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that
would be due after the related redemption date but for such redemption calculated as if the Stated Maturity of such Security was the par
call date; provided, however, that, if such redemption date is not an interest payment date with respect to such Security, the amount
of the next succeeding scheduled interest payment thereon shall be reduced by the amount of interest accrued thereon to, but excluding,
such redemption date.
On and after the redemption date, interest shall
cease to accrue on the Securities or any portion of the Securities called for redemption (unless the Issuer defaults in the payment of
the redemption price and accrued interest). On or before 10:00 a.m. London time on the redemption date, the Issuer shall deposit with
the Paying Agent (or the Trustee) money sufficient to pay the redemption price of and accrued interest on the Securities to be redeemed
on that date. If less than all of the Securities are to be redeemed, the Securities to be redeemed shall be selected by such method as
the Trustee deems fair and appropriate, subject to the procedures of the Depositories as to Global Securities.
In the event of redemption of this Security in
part only, a new Security or Securities of this Series and of like tenor for the unredeemed portion hereof shall be issued in the name
of the Holder hereof upon the cancellation hereof; provided that in the case of a Global Security, an appropriate book-entry adjustment
may be made in lieu of the issuance of a new Security.
The Indenture contains provisions that permit the
Issuer to elect either (1) to defease and be discharged from the entire indebtedness of this Security or (2) to be released from its obligations
under certain restrictive covenants and Events of Default with respect to this Security, in each case upon payment in full of the Securities
and compliance with certain conditions set forth in the Indenture.
Upon the occurrence of Change of Control Triggering
Event with respect to the Securities of this Series, the Issuer shall be required to make an offer to repurchase the Securities of this
Series on the terms set forth in Section 3.2 of the First Supplemental Indenture.
The provisions of Article XIII of the Base Indenture
shall apply to this Series of the Securities.
If an Event of Default with respect to Securities
of this Series shall occur and be continuing, the principal of the Securities of this Series may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture permits the amendment thereof and
the modification of the rights and obligations of the Issuer and the Guarantor and the rights of the Holders of the Securities to be affected
under the Indenture at any time by the Issuer, the Guarantor and the Trustee with the consent of the Holders of a majority in principal
amount of the Securities at the time outstanding to be affected, with certain exceptions as therein provided with respect to certain modifications
or amendments which may not be made without the consent of each Holder of such Security affected thereby. The Indenture also permits certain
amendments and modifications thereto from time to time by the Issuer, the Guarantor and the Trustee without the consent of the Holders
of any Series of the Securities to be affected thereby for certain specified purposes, including curing ambiguities, defects or inconsistencies
and making any such change that does not adversely affect the legal rights of any Holder of the Securities, as provided therein.
The Indenture contains provisions permitting the
Holders of specified percentages in principal amount of the Securities at the time outstanding, on behalf of the Holders of all Securities
of such Series, to waive compliance by the Issuer or the Guarantor with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and any premium and Interest on this Security at the times, place and rate, and in the coin or Currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in the security register, upon surrender of this Security
for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on
this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and
the security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities
of this Series and of like tenor, of authorized denominations and for the same aggregate principal amount, shall be issued to the designated
transferee or transferees.
The Securities of this Series are issuable only
in registered form without coupons in denominations of €100,000 and integral multiples of €1,000 in excess thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount
of the Securities and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the person in
whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and none of the
Issuer, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the
principal of (and premium, if any) or interest on this Security, or for any claim based hereon, or otherwise in respect hereof, or based
on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Issuer, the Guarantor or of any successor corporation, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and released.
All terms used in this Security which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
Exhibit A-8
Exhibit
5.1
250 Vesey Street •
New York, New York 10281.1047
Telephone: +1.212.326.3939
• jonesday.com
March
6, 2024
Omnicom Group Inc.
280 Park Avenue
New York, New York 10017
Omnicom Finance Holdings plc
Bankside 3, 90-100 Southwark Street
London, SE1 0SW, United Kingdom
Re: | €600,000,000 Aggregate Principal Amount of 3.700% Senior Notes Due 2032 of Omnicom Finance Holdings plc |
Ladies and Gentlemen:
We are acting as counsel for Omnicom Finance Holdings
plc, a public limited company organized under the laws of England and Wales (the “Issuer”), Omnicom Group Inc., a New
York corporation (the “Guarantor”), in connection with the issuance and sale of €600,000,000 aggregate principal
amount of 3.700% Senior Notes due 2032 of the Issuer (the “Notes”), and the full and unconditional guarantee of the
Notes (the “Guarantee”) by the Guarantor, pursuant to the Underwriting Agreement, dated February 28, 2024, by and among
the Issuer, the Guarantor, Barclays Bank PLC, BNP Paribas, HSBC Bank plc, and J.P. Morgan Securities plc, acting as representatives of
the several underwriters, and the other underwriters named therein. The Notes are being issued pursuant to an indenture, dated as of March
6, 2024, by and among the Issuer, the Guarantor and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”),
as supplemented by the First Supplemental Indenture, dated as of March 6, 2024, by and among the Issuer, the Guarantor and the Trustee
(as so supplemented, the “Indenture”).
In connection with the opinions expressed herein,
we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinions. Based
on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that:
| 1. | The Notes constitute valid and binding obligations of the
Issuer. |
| 2. | The Guarantee constitutes a valid and binding obligation
of the Guarantor. |
The opinions set forth above are subject to the
following limitations, qualifications and assumptions:
For the purposes of the opinions expressed herein,
we have assumed that (i) the Trustee has authorized, executed and delivered the Indenture, (ii) the Notes have been duly authenticated
by the Trustee in accordance with the terms of the Indenture and (iii) the Indenture is a valid, binding and enforceable obligation of
the Trustee.
AMSTERDAM
• ATLANTA • BEIJING • BOSTON • BRISBANE • BRUSSELS • CHICAGO • CLEVELAND • COLUMBUS • DALLAS
• DETROIT DUBAI • DÜSSELDORF • FRANKFURT • HONG KONG • HOUSTON • IRVINE • LONDON •
LOS ANGELES • MADRID • MELBOURNE MEXICO CITY • MIAMI • MILAN • MINNEAPOLIS • MUNICH • NEW YORK
• PARIS • PERTH • PITTSBURGH • SAN DIEGO • SAN FRANCISCO SÃO PAULO • SAUDI ARABIA
• SHANGHAI • SILICON VALLEY • SINGAPORE • SYDNEY • TAIPEI • TOKYO • WASHINGTON
Omnicom Group Inc.
Omnicom Finance Holdings plc
March 6, 2024
Page 2
In rendering the foregoing opinions, with respect
to the Issuer, we have further assumed that (i) the Issuer is a public limited company existing and in good standing under the laws of
England and Wales, (ii) the Indenture and the Notes have been (A) authorized by all necessary corporate action of the Issuer, and (B)
executed and delivered by the Issuer under the laws of England and Wales, and (iii) the execution, delivery, performance and compliance
with the terms and provisions of the Indenture and the Notes by the Issuer do not violate or conflict with the laws of England and Wales
or the terms and provisions of the Issuer’s Certificate of Incorporation and Articles of Association, or any rule, regulation, order,
decree judgment, instrument or agreement binding upon or applicable to the Issuer or its properties.
The opinions expressed herein are limited by (i)
bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar
laws and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors’ rights generally,
and (ii) general equitable principles and public policy considerations, whether such principles and considerations are considered in a
proceeding at law or at equity.
As to facts material to the opinions and assumptions
expressed herein, we have relied upon oral or written statements and representations of officers and other representatives of the Issuer,
the Guarantor and others. The opinions expressed herein are limited to the laws of the State of New York, as currently in effect, and
we express no opinion as to the effect of the laws of any other jurisdiction on the opinions expressed herein.
We hereby consent to the filing of this opinion
as Exhibit 5.1 to the Current Report on Form 8-K dated the date hereof filed by the Guarantor and incorporated by reference into the Registration
Statement on Form S-3 (Registration No. 333-261046) (the “Registration Statement”), filed by the Issuer and the Guarantor
to effect the registration of the Notes and the Guarantee under the Securities Act of 1933 (the “Act”) and to the reference
to Jones Day under the caption “Validity of Securities” in the prospectus constituting a part of such Registration Statement.
In giving such consent, we do not hereby admit that we are included in the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
|
Very truly yours, |
|
|
|
/s/ Jones Day |
Exhibit 5.2
AUTHORISED AND REGULATED BY THE SOLICITORS REGULATION
AUTHORITY
SRA NO. 223597
21
TUDOR STREET · LONDON
EC4Y 0DJ · DX 67 LONDON/CHANCERY
TELEPHONE:
020.7039.5959 · FACSIMILE:
020.7039.5999
Ref/CAM |
JP592393/799841-000001 |
E-mail |
enalbantian@jonesday.com |
Direct |
020 7039 5145 |
Date |
6 March 2024 |
Omnicom Capital Holdings plc
Bankside 3, 90 - 100 Southwark Street
London, SE1 0SW
United Kingdom
Re: | €600,000,000 Aggregate Principal Amount of 3.700%
Senior Notes Due 2032 of Omnicom Finance Holdings plc |
Ladies and Gentlemen:
We have acted as English counsel to Omnicom Finance
Holdings plc, a public limited company organised under the laws of England and Wales with registered number 11432221 (the “Issuer”)
in connection with the issuance and sale of €600,000,000 aggregate principal amount of 3.700% Senior Notes due 2032 of the Issuer
(the “Notes”) pursuant to an indenture, dated as of 6 March 2024 (the “Base Indenture”), by and
among the Issuer, Omnicom Group Inc., a New York corporation as guarantor (the “Guarantor”) and Deutsche Bank Trust
Company Americas, as trustee (the “Trustee”), as supplemented by a first supplemental indenture, dated as of 6 March
2024 (the “Supplemental Indenture”), by and among the Issuer, the Guarantor and the Trustee (the Base Indenture, as
supplemented by the Supplemental Indenture, the “Indenture”).
1.
SCOPE OF REVIEW AND RELIANCE
For the purposes of giving this opinion (the “Opinion”),
we have only examined the following documents (items (a) through (d), inclusive, are referred to herein, collectively, as the “Opinion
Documents”):
(a) a
signed scanned copy of the Indenture;
(b) copies
of the certificate of incorporation, memorandum and articles of association of the Issuer, in each case obtained from the Company Search
referred to below;
(c) certified
copies of the minutes of a meeting of the board of directors of the Issuer held on 22 February 2024 at which the directors of the Issuer,
amongst other things, passed resolutions relating to the Opinion Documents and a meeting of the board of directors of the Issuer held
on 28 February 2024 at which the directors of the Issuer, amongst other things, passed resolutions approving the final terms on which
the Issuer will issue the Notes. Both sets of minutes are collectively the “Minutes” and both sets of resolutions are
collectively the “Resolutions”; and
AMSTERDAM · ATLANTA · BEIJING · BOSTON · BRISBANE · BRUSSELS · CHICAGO · CLEVELAND · COLUMBUS · DALLAS · DETROIT
DUBAI · DÜSSELDORF · FRANKFURT · HONG KONG · HOUSTON · IRVINE · LONDON · LOS ANGELES · MADRID · MELBOURNE
MEXICO CITY · MIAMI · MILAN · MINNEAPOLIS · MOSCOW · MUNICH · NEW YORK · PARIS · PERTH · PITTSBURGH · SAN DIEGO
SAN FRANCISCO · SÃO PAULO · SAUDI
ARABIA · SHANGHAI · SILICON VALLEY · SINGAPORE · SYDNEY · TAIPEI · TOKYO · WASHINGTON
Continued 2 |
|
(e) a certified copy of the Registration Statement
on Form S-3 (Registration No. 333-231652) (the “Registration Statement”), filed by the Issuer and the Guarantor to
effect the registration of the Notes and the Guarantees under the Securities Act of 1933 (the “Act”), including the prospectus
constituting part of that Registration Statement.
We have only made and relied upon the following
searches and enquiries for the purpose of giving this Opinion:
(a) an
online search on 2 February 2024 and updated on 6 March 2024 of the public documents of the Issuer kept at Companies House in Cardiff
(the “Company Search”); and
(b) an
enquiry by Dye & Durham (UK) Limited on our behalf on 5 March 2024 in respect of the Issuer with the Central Registry of Winding-up
Petitions at the Companies Court in London (the “Enquiry”).
The Registration Statement, the Indenture and
the Notes are hereinafter collectively referred to as the “Transaction Documents”.
2.
ASSUMPTIONS
For the purposes of giving this Opinion, we have
assumed, with your consent and without further investigation on our part, that, so far as the laws of every jurisdiction other than England
and Wales are concerned, all restrictions, laws, guidelines, regulations or reporting requirements that apply to the Indenture and any
issue of Notes thereunder have been or will be complied with and that such laws do not qualify or affect our opinion as set out below.
We have also made the following assumptions with
your consent and without investigation on our part:
(a) insofar
as any obligation falls to be performed in any jurisdiction outside England, its performance will not be illegal or ineffective by virtue
of the laws of that jurisdiction;
(b) all
signatures on the executed documents which, or copies (whether photocopies, certified copies, facsimile copies or electronic copies) of
which, we have examined are genuine, and that such copies conform to the original documents executed;
(c) where
a signatory signs a Transaction Document by electronic signature, (i) such signatory intends to authenticate such document and (ii) any
formalities relating to the execution of such document are satisfied;
(d) each
of the parties to the Transaction Documents, other than the Issuer, is able lawfully to enter into such Transaction Documents;
(e) each
corporate party (other than the Issuer) is duly organised, validly existing and in good standing (where such concept is legally relevant)
under the laws of its jurisdiction of incorporation and has the capacity, power and authority to execute and deliver the Transaction Documents
to which it is a party, and to exercise its rights and perform its obligations under the Transaction Documents to which it is a party;
Continued 3 |
|
(f) the
execution and delivery of the Transaction Documents have been or will be duly authorised by each of the parties thereto in accordance
with all applicable laws (other than in the case of the Issuer the laws of England and Wales); such documents have been or will be duly
executed and unconditionally delivered by each of the relevant parties thereto with effect from the date it is expressed to be effective
in accordance with all applicable laws and is not or will not be (when delivered) subject to any escrow or similar arrangement; all conditions
precedent to the effectiveness of the Transaction Documents contained therein have been satisfied and such documents are unconditional
in all respects; and such documents shall constitute the valid and binding obligations of each of such parties enforceable in accordance
with all applicable laws (other than the laws of England and Wales in the case of the Issuer with respect to the Notes) and, if the laws
or regulations of any other jurisdiction may be relevant to the obligations or rights of any of the parties in any of the Transaction
Documents or any of the transactions contemplated by any Transaction Document, such laws do not prohibit, and are not inconsistent with,
the entry into and performance of any such obligations, rights or transactions;
(g) each
of the parties to the Transaction Documents who is carrying on, or purporting to carry on, any regulated activity in the United Kingdom
is an authorised person permitted to carry on that relevant regulated activity or an exempt person in respect of that regulated activity
under the Financial Services and Markets Act 2000 (the “FSMA”) and no such agreement was or will be entered into in consequence
of a communication made in breach of section 21(1) of the FSMA;
(h) the
Notes will be issued pursuant to the Indenture that has been authorised, executed and delivered by the Issuer, the Company and one or
more entities selected by the Issuer to act as trustee, and the Notes will be duly prepared and completed in accordance with the provisions
and arrangements contained or described in the Indenture and will be in the form of the Notes as provided for and set out in the Indenture;
(i) the
articles of association of the Issuer, which we have examined, are those in force and the Resolutions which we have examined were passed
at a board meeting of the Issuer properly convened and held (using the correct procedure) and that a duly qualified quorum of directors
of the Issuer voted in favour of approving the applicable Resolutions, and that the facts on which the Minutes were based were true and
the directors’ decisions were taken in good faith and on reasonable grounds for believing that the transactions contemplated thereby
would be most likely to promote the success of the applicable Issuer for the benefit of its members as a whole and that the Resolutions
have not been subsequently amended, rescinded, modified, superseded or revoked and are in full force and effect and the certifications
referred to in 1(c) to (d) above are true and accurate;
(j) the
issue of Notes will not cause any limit on borrowings to which either Issuer is subject to be exceeded;
Continued 4 |
|
(k) the
absence of mutual mistake of fact, of any facts or matters which were not revealed by the Transaction Documents or of any other arrangements,
documents, agreements or course of dealing between any of the parties to the Transaction Documents which modify or supersede any of their
terms or that would result in the inclusion of any additional terms in any of them or would affect this Opinion;
(l) each
of the Transaction Documents has been entered into, and the transactions referred to therein are carried out, by each of the parties in
good faith, for bona fide commercial reasons, for the purpose of carrying on their respective businesses (and, in the case of the Issuer,
in furtherance of its objects, whether contained in its articles of association or otherwise), for the benefit of each of them respectively
and on arm’s length commercial terms;
(m) each
of the Transaction Documents has not been entered into in consequence of bad faith, fraud, coercion, duress, misrepresentation or undue
influence or on the basis of a mistake of fact or law or believing that the Transaction Documents are fundamentally different in substance
or in kind from what it is, or in connection with money laundering or any other unlawful activity;
(n) none
of the parties to the Transaction Documents is or will be seeking to achieve any purpose not apparent from the Transaction Documents which
might render any of them illegal, void or unenforceable;
(o) the
truth, accuracy, correctness and completeness in all respects of all information, statements, certifications, acknowledgements, confirmations
and representations and warranties (with the exception of representations and warranties on matters on which we have specifically and
expressly given our opinion in this Opinion) contained in the Opinion Documents and that all the terms and conditions of the Transaction
Documents will be observed and performed by all the parties thereto;
(p) the
Issuer is neither an authorised person nor an exempt person in relation to the regulated activity of accepting deposits under the FSMA;
(q) no
request will be made to admit any Notes to trading on a regulated market situated or operating in the United Kingdom;
(r) no
steps have been, or will be, taken to have the Registration Statement treated as an approved prospectus under section 87H of the FSMA;
(s) all
applicable provisions of the FSMA and any applicable secondary legislation made under it have been complied with respect to the Transaction
Documents;
(t) all
documents presented to us as originals are true, complete and accurate and all documents submitted to us as copies conform with the originals
and that any documents in draft or specimen form which we have examined for the purposes hereof will not change when it will be or has
been executed;
Continued 5 |
|
(u) the
Issuer is able to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or would otherwise be solvent pursuant to
any legislation applicable to it at the time of executing any of the Transaction Documents, and will not, as a consequence of executing
any of the Transaction Documents, become unable to pay its debts within the meaning of that section or otherwise be insolvent pursuant
to any applicable legislation and:
(i) has
not passed a resolution for its winding-up or dissolution;
(ii) no
proceedings have been commenced or steps taken for the winding-up of the Issuer or for the appointment of any administrator, an administrative
receiver or receiver or manager in relation to the Issuer or any of its assets or revenue; and/or
(iii) no
analogous procedure or step described in paragraphs (i) and (ii) above has been taken in any jurisdiction in relation to the Issuer;
(v) the
Issuer either (i) physically distributed to the other parties to the Transaction Documents (or their legal advisors) complete execution
versions of the Transaction Documents to which it is a party signed by it which are identical to the forms of the Transaction Documents
that we have received pursuant to paragraph 1 above or (ii) delivered signed versions of the Transaction Documents to which it is a party
which are identical to the forms of the Transaction Documents that we received pursuant to paragraph 3 above as part of a virtual signing
in accordance with options 1, 2 or 3 (as applicable) of the Law Society’s practice note in respect of the execution of documents
at virtual signings or closings dated 16 February 2010, in each case on an unconditional basis with effect from the date it is expressed
to be effective;
(w) the
Issuer’s entry into, exercise of its rights under, performance of its obligations under, and compliance with the terms of the Transaction
Documents do not and will not violate any contract, agreement or undertaking to which it is a party;
(x) all
consents, licenses, approvals, notices, filings, publications and registrations that are necessary under any applicable laws or regulations
(other than the laws of England and Wales) in order to permit the execution, delivery or performance of the Transaction Documents or to
protect or preserve any of the interests (whether by way of security or otherwise) created by the Transaction Documents or the enforceability
of the Transaction Documents have been made and obtained or will be made or obtained within the period permitted by these laws or regulations;
(y) the
choice of law and jurisdiction provisions relating to each Transaction Document were freely made in good faith by each of the parties
thereto for bona fide purposes (and were not made for the purpose of avoiding the mandatory laws of any other jurisdiction) and are valid
and binding under all relevant laws (other than the laws of England and Wales) and that none of the opinions expressed below would be
affected by any law or public policy of any jurisdiction other than England;
(z) in
respect of a judgment entered in any suit, action or proceeding arising out of or in connection with the Transaction Documents such judgment
was entered by the relevant New York court which had jurisdiction to determine such suit, action or proceeding;
(aa) the information revealed
by the Company Search was true, accurate, complete and up to date in all respects and has not since then been altered or
supplemented;
Continued 6 |
|
(bb) the information revealed
by the Enquiry was true, accurate, complete and up to date in all respects and has not since then been altered or supplemented;
(cc) the Issuer’s
“centre of main interests” (as that term is used in Article 3(1) of Regulation (EU) 2015/848 of the European Parliament
and of the Council of 20 May 2015 on insolvency proceedings (recast) (“EU Recast Insolvency Regulation”) as incorporated
in its unamended version into English law pursuant to the European Union (Withdrawal) Act 2018, and in The Insolvency (Amendment)
(EU Exit) Regulations 2019 (SI 2019/146) and in The Cross-Border Insolvency Regulations 2006 (SI 2006/1030) (which implement the
UNCITRAL Model Law on Cross-Border Insolvency in the UK) (“Cross-Border Insolvency Regulations”)) is, and always has been,
situated in England and Wales and it has no “establishment” (as that term is defined in Article 2(10) of the EU Recast
Insolvency Regulation and in the Cross-Border Insolvency Regulations) in any other jurisdiction;
(dd) the parties to the
Transaction Documents have complied (and will continue to comply) with all applicable anti-terrorism, anti-corruption, anti-money
laundering and human rights laws and regulations, and there is nothing in the transactions contemplated by the Transaction Documents
that is inconsistent with all such laws and regulations;
(ee) no part of the
Transaction Documents will constitute unlawful financial assistance for the purposes of section 678 or section 679 of the Companies
Act 2006; and
(ff) each Transaction
Document has the same meaning and effect under its governing law as it would have if it were interpreted under the law of England
and Wales by an English court and there are no provisions of such governing law which would affect this Opinion.
3.
LIMITATIONS
This Opinion is given only with respect to English
law and HM Revenue and Customs’ practice in force and published at the date of this Opinion as applied by the English courts as at the
date of this Opinion. By giving this Opinion, we do not assume any obligation to notify you of future changes in English law or HM Revenue
and Customs’ practice or their application which may affect the opinions expressed in this Opinion, or otherwise to update this Opinion
in any respect. We have made no investigation of, and therefore express or imply no opinion as to, the laws of any other jurisdiction
or as to the application of English or any other law by any other courts. In particular we express no opinion on European Union law (as
assimilated within English law, following the United Kingdom’s departure from the European Union) as it affects any jurisdiction other
than England. To the extent that the laws of any jurisdiction other than England may be relevant, we have made no independent investigation
thereof and this Opinion is subject to the effect of such laws, including as to matters of New York law.
The Indenture and the Notes will be governed by
the laws of the State of New York. We have made no investigation of such laws and do not express or imply any opinion on such laws. In
addition, we have assumed that, so far as the laws of the State of New York and US securities laws are concerned, the Indenture and the
Notes will, on issue in accordance with the Indenture, constitute legal, valid and binding obligations of the Issuer and that such laws
do not qualify or affect our opinion as set out below.
4.
OPINIONS
4.1 The
Issuer has been incorporated and registered as a public limited company in England and Wales under the Companies Act 2006.
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4.2 The
Issuer has corporate power to enter into and perform its obligations under the Indenture and to issue and perform its obligations under
the Notes.
4.3 The
issue of the Notes has been duly authorised by all necessary corporate action by the Issuer and when (a) the Registration Statement has
become effective under the Securities Act and (b) the Notes have been duly executed by the Issuer and authenticated in accordance with
the terms of the Indenture and delivered in the manner provided in the Indenture, we would expect the English courts to recognise the
choice of law of New York law as the governing law of the Notes and to enforce by way of a separate action a final and conclusive judgment
(which does not re-open an earlier judgment from the same jurisdiction) for a definite sum of money or for a sum of money ascertainable
by arithmetical calculation (in either case not being a sum payable in respect of taxes or other charges of a like nature or in respect
of a fine or other penalty), entered against the Issuer in connection with the enforcement of the contractual obligations in the Notes,
given in civil proceedings in a court of competent jurisdiction in the State of New York.
5.
QUALIFICATIONS
Nothing in this opinion shall be taken as implying
that an English court would exercise jurisdiction in any proceedings relating to the Indenture or the Notes or accordingly that any remedy
would be available in England for the enforcement of obligations arising under the Indenture or the Notes.
This opinion is subject to the following:
(a) The
opinions in this Opinion are strictly limited to the matters stated in paragraph 4 and do not extend to any other matters. We express
no opinion as to matters of fact or regulatory capital matters. We have not been responsible for investigating or verifying the accuracy
of the facts (including statements of foreign law), or the reasonableness of any statement of opinion or intention, contained in or relevant
to any document referred to in this Opinion, or that no material facts have been omitted therefrom.
(b) The
Company Search is not capable of revealing conclusively whether or not (i) a winding-up order has been made or a resolution passed for
the winding-up of a company, (ii) an administration order has been made, or (iii) a receiver, administrative receiver, administrator,
moratorium monitor or liquidator has been appointed, since notice of these matters may not be filed with the Registrar of Companies immediately
and, when filed, may not be entered on the public database or recorded on the public microfiches of the relevant company immediately.
In addition, the Company Search is not capable of revealing whether or not a winding-up petition has been presented or an application
for an administration order has been made nor will the search conclusively reveal whether a charge or other restriction or prohibition
has been created in relation to the real property owned by the relevant party. We have not verified that the certified copies of the memorandum
and articles of association supplied to us are identical to the memorandum and articles of association disclosed by the Company Search.
(c) The
Enquiry relates only to a compulsory winding-up and is not capable of revealing conclusively whether or not a winding-up petition in respect
of a compulsory winding-up has been presented, since details of the petition may not have been entered on the records of the Central Registry
of Winding-up Petitions immediately or, in the case of a petition presented to a County Court, may not have been notified to the Central
Registry and entered on such records at all, and the response to an enquiry only relates to current petitions (and not those which may
have been subsequently withdrawn or otherwise dealt with)
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(d) Laws
relating to liquidation or administration or other laws or procedures affecting generally the enforcement of creditors’ rights may affect
any obligations of the Issuer under the Transaction Documents and the remedies available.
(e) Under
the rules of procedure, an English court may, in certain circumstances, order a claimant in an action to provide security for costs.
(f) Any
provision in any Transaction Document that has the effect of imposing an obligation based on or resulting from any law or regulation that
is the subject of Council Regulation (EC) No 2271/1996 of 22 November 1996 protecting against the effects of the extra-territorial application
of legislation adopted by a third country, and actions based thereon or resulting therefrom (as amended) as it forms part of assimilated
EU law under the European Union (Withdrawal) Act 2018 or any other anti-boycott law may be unlawful and unenforceable.
(g) This
Opinion is subject to the direct or indirect effects of the National Security and Investment Act 2021 and any regulations made under it
(together, the “NSI Act”) in relation to any party to any Transaction Document or any transaction contemplated by any
Transaction Document. Any review of, or due diligence on, the direct or indirect effects of the NSI Act in relation to any party to any
Transaction Document or the transactions contemplated by any Transaction Document is beyond the scope of this Opinion. We express no Opinion
on the application or potential application of the NSI Act in relation to any party to any Transaction Document or any transaction contemplated
by any Transaction Document.
(h) The
Registration Statement has been prepared by the Issuer and the Company, who have accepted responsibility for the information contained
therein. We have not investigated or verified the truth or accuracy of the information contained in the Registration Statement, nor have
we been responsible for ensuring that no material information has been omitted from it.
(i) An
English Court will not apply a chosen foreign law if: (i) it is not pleaded and proved; (ii) to do so would be contrary to the mandatory
rules of English law or of such chosen foreign law or manifestly incompatible with English public policy; or (iii) the choice is not valid
under the chosen law. In the English courts, foreign law is treated as a matter of fact and must be pleaded by the party relying on that
law and, save in limited exceptions, must be proved by evidence. We express no opinion as to whether satisfactory evidence of the laws
of any jurisdiction could be pleaded and proved as a fact in any proceedings before the English courts.
(j) There
are no reciprocal arrangements in force between the State of New York or the United States of America and the United Kingdom for the recognition
or enforcement of judgments. Accordingly, a judgment by the courts of the State of New York, United States of America or, as the case
may be, any federal court of the United States of America (each such court being a “US Court”) is not enforceable directly
in England but may be recognised by the English courts according to common law principles. A judgment by a US Court will not be enforced
by the English courts if:
(i) that
US Court had no jurisdiction, as a matter of English law, over the defendant;
(ii) the
judgment was given in default of appearance and the defendant was not served with process in sufficient time and in such a way as to enable
him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for
him to do so;
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(iii) the
proceedings in which the judgment was given were opposed to natural justice;
(iv) the
judgment was obtained by fraud;
(v) the
enforcement of the judgment would be contrary to English public policy or the Human Rights Act 1998;
(vi) an
order has been made and remains effective under section 9 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 applying that section
to judgments of that US Court;
(vii) before
the date on which the US Court gave judgment, the matter in dispute had been the subject of a final judgment of another court having jurisdiction
between the same parties or their privies, that judgment is enforceable in England, and that judgment conflicts with the judgment intended
to be enforced in England;
(viii) the
judgment is for multiple damages within the meaning of section 5(3) of the Protection of Trading Interests Act 1980 or based on a claim
for contribution in respect of the same;
(ix) the
judgment is based on a rule of law specified by the relevant Secretary of State as concerned with the prohibition of restrictive trade
practices or based on a claim for contribution in respect of the same;
(x) the
judgment is based on foreign measures which the relevant Secretary of State specifies as regulating and controlling international trade
and which, in so far as they apply to persons carrying on business in the United Kingdom, are damaging or threaten to damage the trading
interests of the United Kingdom; or
(xi) the
bringing of proceedings in that US Court was contrary to an agreement under which the dispute in question was to be settled otherwise
than by proceedings in that US Court.
If the English court gives judgment for the sum
payable under a judgment of the courts of the State of New York, the English judgment would be enforceable by the methods generally available
for the enforcement of English judgments. These give the court a discretion whether to allow enforcement by any particular method. In
addition, it may not be possible to obtain an English judgment or to enforce any English judgment if the judgment debtor is subject to
any insolvency or similar proceedings, if there is delay, if an appeal is pending or anticipated against the English judgment in England
or against the foreign judgment in the courts of the State of New York or if the judgment debtor has any set-off or counterclaim against
the judgment creditor.
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Furthermore, there is doubt as to the enforceability
in England and Wales of US judgments in respect of civil judgments predicated purely on US securities law.
(k) English
courts can give judgments in currencies other than pounds sterling if, subject to the terms of the contract, another currency is the currency
which most fairly expresses the claimant’s loss but judgments of this nature may be required to be converted into pounds sterling for
execution purposes.
(l) No
account has been taken in this opinion of the future exercise of powers by the UK Government pursuant to section 5(4) of the Protection
of Trading Interests Act 1980.
(m) We
express no opinion as to compliance or otherwise with the financial limitations on borrowings by the Issuer contained in its articles
of association.
(n) We
give no opinion as to tax or as to any liability to tax.
(o) We
have not considered the particular circumstances of any party to the Transaction Documents nor the effect of any such particular circumstances
on the Transaction Documents or the effect of the transaction contemplated by the Transaction Documents on any such particular circumstances.
This Opinion is given on the basis that it and
any non-contractual obligations arising out of it are governed by and shall be construed in accordance with English law as at today’s
date, and is given to the Issuer in connection with the registration under the Securities Act of the Notes. The English courts shall have
exclusive jurisdiction in relation to all disputes arising out of or in connection with this Opinion.
This Opinion is rendered to you and is solely
for your benefit in connection with the transactions covered hereby. This Opinion may not be relied upon by you for any other purpose,
or furnished to, quoted to or relied upon by any other person, firm or corporation for any purpose, without our prior written consent.
Notwithstanding the foregoing, we consent to the filing of this Opinion as an exhibit to the Registration Statement and to the reference
to us under the heading “Validity of Securities” in the prospectus that is a part of the Registration Statement. In giving such
consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act
or the rules and regulations of the US Securities and Exchange Commission thereunder.
Yours faithfully, |
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/s/ Jones Day |
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