Exhibit 1.1
EXECUTION VERSION
Omnicom Group Inc.
2.450% Senior Notes due 2030
Underwriting Agreement
February 19, 2020
To the Representatives named
in Schedule I
hereto of the several Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Omnicom Group Inc.,
a New York corporation, (the “Company”), proposes to sell to the several underwriters named in Schedule II hereto
(the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, the principal
amount of its 2.450% Senior Notes due 2030 (the “Securities”) identified in Schedule II hereto, to be issued under
an indenture dated as of the Closing Date (as defined herein) (the “Base Indenture”), between the Company and Deutsche
Bank Trust Company Americas, a New York banking corporation, as trustee (the “Trustee”), as supplemented by the
First Supplemental Indenture to be dated as of the Closing Date, between the Company and the Trustee (the “Supplemental Indenture”).
The Supplemental Indenture together with the Base Indenture are herein collectively referred to as the “Indenture.”
To the extent there
are no additional Underwriters listed on Schedule II other than you, the term Representatives as used herein shall mean you,
as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3, which
were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after
the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 24
hereof.
1.
Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter
as set forth below in this Section 1 that:
(a)
The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission
an automatic shelf registration statement, as defined in Rule 405 (the file number of which is set forth in Schedule I
hereto) on Form S-3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities.
Such Registration Statement, including any
amendments thereto filed prior
to the Execution Time, became effective upon filing and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company.
No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that
purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened
by the Commission. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant
to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been
furnished to you. The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance
with Rule 424(b). As filed, such final prospectus supplement shall contain, in all material respects, all information required
by the Act and the rules thereunder, and, except to the extent the Representatives shall agree to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and
any Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective
Date of the Registration Statement was not earlier than the date three years before the Execution Time.
(b)
On each Effective Date, the Registration Statement did, at the time of filing of each Preliminary Prospectus such Preliminary
Prospectus did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date and at the Execution Time,
the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on
the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture
Act and the rules thereunder; at the time of filing of each Preliminary Prospectus, such Preliminary Prospectus did not include
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company does not make any representations
or warranties as to (i) those parts of the Registration Statement which shall constitute the Statements of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement,
any Preliminary Prospectus or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration
Statement, any Preliminary Prospectus or the Final Prospectus (or any supplement thereto), it being understood and agreed that
the only such information furnished by or on behalf of any Underwriters consists of the information described as such in Section 8
hereof.
(c)
The documents incorporated by reference in the Registration Statement, the Final Prospectus and the Disclosure Package,
when they were filed with the Commission, conformed in all material respects with the applicable provisions of the Exchange Act
and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the Registration Statement, the Final Prospectus or the Disclosure
Package, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d)
(i) The Disclosure Package and (ii) each electronic roadshow identified on Schedule V hereto, when taken
together as a whole with the Disclosure Package, does not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and
in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8 hereof.
(e)
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company
or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the
Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time (with such date being used as the
determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405. The Company agrees to pay the fees required by the Commission relating to the Securities
within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r).
(f)
(i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time
(with such date being used as the determination date for purposes of this clause (ii)), the Company was not and
is not an ineligible issuer (as
defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not
necessary that the Company be considered an ineligible issuer.
(g)
Each Issuer Free Writing Prospectus, including the final term sheet prepared and filed pursuant to Section 5(b) hereof,
does not include any information that conflicts with the information contained in the Registration Statement, including any document
incorporated therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that only such information furnished by or on behalf of any Underwriter consists of the information described
as such in Section 8 hereof.
(h)
KPMG LLP, whose report accompanies the audited financial statements and supporting schedule included in or incorporated
by reference into the Disclosure Package and the Final Prospectus, is an independent registered public accounting firm of the Company
and its consolidated subsidiaries within the meaning of the Act and the applicable rules and regulations thereunder adopted by
the Commission and the Public Company Accounting Oversight Board (the “PCAOB”).
(i)
The financial statements, together with the related schedules and notes, included in or incorporated by reference in the
Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly, in all material respects, the financial
position of the Company and its consolidated subsidiaries at the dates indicated and consolidated balance sheets and statements
of income, equity and comprehensive income and cash flows of the Company and its consolidated subsidiaries for the periods specified
and said financial statements have been prepared in conformity with generally accepted accounting principles in the United States
of America (“U.S. GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedule, if
any, included in or incorporated by reference into the Preliminary Prospectus, the Final Prospectus and the Registration Statement
presents fairly, in all material respects, in accordance with U.S. GAAP the information required to be stated therein. The selected
financial data included in the Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly, in all
material respects, the information shown therein and have been compiled on a basis consistent with that of the financial statements
incorporated by reference into the Preliminary Prospectus, the Final Prospectus and the Registration Statement.
(j)
The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation and has the requisite corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the Disclosure Package and the Final Prospectus and to enter into and perform its obligations under
this Agreement, the Indenture and the Securities; and the Company is not required to qualify as a foreign corporation to transact
business in any other jurisdiction, whether by reason of the
ownership or leasing of property
or the conduct of business, except where the failure so to qualify or to be in good standing (i) could reasonably be expected
to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its Subsidiaries (as defined below), taken as a whole, whether or not arising
from transactions in the ordinary course of business (a “Material Adverse Effect”).
(k)
The authorized, issued and outstanding capital stock of the Company is as set forth in the Disclosure Package and the Final
Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for subsequent repurchases
by the Company, issuances pursuant to reservations, agreements, incentive stock option plans referred to in the Disclosure Package
or Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or Final
Prospectus). The shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable; none of the outstanding shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(l)
The Company is a holding company that conducts its business through over 1,000 separate subsidiary entities (each, a “Subsidiary,”
and together, the “Subsidiaries”). There is no matter arising out of the organization, existence, capitalization, compliance
with laws or contractual or other construction of any agreement of or relating to any such Subsidiary or all of such Subsidiaries
in the aggregate that would reasonably be expected to have a Material Adverse Effect.
(m)
Except for such of the following as would not have a Material Adverse Effect, there are no consensual encumbrances or restrictions
on the ability of any Subsidiary (i) to pay any dividends or make any distributions on such Subsidiary’s capital stock
or to pay any indebtedness owed to the Company or any of its other Subsidiaries, (ii) to make any loans or advances to, or
investments in, the Company or any of its other Subsidiaries, or (iii) to transfer any of its property or assets to the Company
or any of its other Subsidiaries.
(n)
This Agreement has been duly authorized, executed and delivered by the Company.
(o)
The Base Indenture has been duly authorized by the Company and, when executed and delivered by the Company and the Trustee,
will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding
in equity or at law); the Supplemental Indenture has been duly authorized by the Company and, when executed and delivered by
the Company and the Trustee, will
constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding
in equity or at law).
(p)
The Securities have been duly authorized and, at the Closing Date, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general principles of equity (including, without limitation, good
faith, fair dealing and reasonableness, equitable defenses, the exercise of judicial discretion and limits on the enforceability
of equitable remedies, whether such principles are considered in a proceeding at law or in equity), and will be in the form contemplated
by, and entitled to the benefits of, the Indenture.
(q)
The Securities and the Indenture will conform in all material respects to the respective statements relating thereto contained
in the Disclosure Package and the Final Prospectus.
(r)
The Company is not in violation of its charter or by-laws; and no Subsidiary of the Company is in violation of its charter,
by-laws or other organizational documents except for such violations that would not result in a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its Subsidiaries is a party or by which it may be bound or to which any of the property
or assets of the Company or any of its Subsidiaries may be subject (collectively, “Agreements and Instruments”), except
for such defaults or violations that would not result in a Material Adverse Effect; and the execution, delivery and performance
of this Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered
into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Disclosure Package and
the Final Prospectus and the consummation of the transactions contemplated herein and in the Disclosure Package and the Final Prospectus
(including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in
the Disclosure Package and the Final Prospectus under the caption “Use of Proceeds”) and compliance by the Company
with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with
or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment
Event (as defined
below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries
pursuant to, the Agreements and Instruments except for such conflicts, breaches or defaults or Repayment Events, liens, charges
or encumbrances that, individually or in the aggregate, would not result in a Material Adverse Effect, nor will such action result
in any violation of (x) the provisions of the charter or by-laws of the Company; (y) the charter, by-laws or other organizational
documents of the Subsidiaries of the Company or (z) any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its
Subsidiaries or any of their assets, properties or operations except (in the case of (y) and (z) only) as would not have a Material
Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company or any of its Subsidiaries.
(s)
No labor dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any of
its Subsidiaries’ principal suppliers, customers or contractors, which, in any such case, may reasonably be expected to result
in a Material Adverse Effect.
(t)
Except as disclosed in the Disclosure Package and the Final Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending or, to the knowledge
of the Company, threatened against or affecting the Company or any of its Subsidiaries which might reasonably be expected to result
in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets
of the Company or any of its Subsidiaries, taken as a whole, or the consummation of the transactions contemplated by this Agreement
or the performance by the Company of its obligations hereunder. The aggregate of all pending legal or governmental proceedings
to which the Company or any of its Subsidiaries is a party or of which any of their respective property or assets is the subject
which are not described in the Disclosure Package and the Final Prospectus, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material Adverse Effect.
(u)
The Company and its Subsidiaries own or possess, or can acquire on reasonable terms adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual
Property”) necessary to continue to carry on the business now operated by them in all material respects, and neither the
Company nor any of its Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual
Property
invalid or inadequate to protect
the interest of the Company or any of its Subsidiaries therein except for such of the foregoing as would not result in a Material
Adverse Effect.
(v)
No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court
or governmental authority or agency is necessary or required for the performance by the Company of its obligations hereunder in
connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated
by this Agreement or for the due execution, delivery or performance of this Agreement, the Base Indenture and the Supplemental
Indenture by the Company, except (i) such as have been already obtained or (ii) such as may be required by the securities
or blue sky laws of the various states in connection with the purchase and distribution of the Securities by the Underwriters in
the manner contemplated herein and in the Final Prospectus.
(w)
The Company and its Subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary
to continue to conduct the business now operated by them in all material aspects; the Company and its Subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where the failure to have such Governmental Licenses or
to so comply would not, either individually or in the aggregate, have a Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries
has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(x)
The Company and each of its Subsidiaries have good and marketable title to all real property owned by the Company and such
Subsidiary and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except such as (a) are described in the Disclosure Package
and the Final Prospectus or (b) would not, individually or in the aggregate, have a Material Adverse Effect, and all of the
leases and subleases material to the business of the Company and its Subsidiaries, considered as one enterprise, and under which
the Company or any of its Subsidiaries holds properties described in the Disclosure Package and the Final Prospectus, are in full
force and effect, and neither the Company nor any of its Subsidiaries has any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Company or any of its Subsidiaries under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or any of its Subsidiaries to the continued possession of the leased
or subleased premises under any such lease or sublease, except for such of the foregoing as would not have a Material Adverse Effect.
(y)
The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance
with management’s general
or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with U.S. GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(z)
The Company and its Subsidiaries, taken as a whole, maintain an effective system of “disclosure controls and procedures”
(as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the
Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information
is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure.
The Company and its Subsidiaries, taken as a whole, have carried out evaluations of the effectiveness of their disclosure controls
and procedures as required by Rule 13a-15 of the Exchange Act.
(aa)
Except as described in the Disclosure Package and the Final Prospectus and except such matters as would not, individually
or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries is in violation
of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating
to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and
its Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending, or to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company or any of its Subsidiaries and (D) to the knowledge of
the Company, there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the
Company or any of its Subsidiaries relating to Hazardous Materials or Environmental Laws.
(bb)
The Company is not, and upon the issuance and sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Disclosure Package and the Final Prospectus will not be, an “investment company”
or an
entity “controlled”
by an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.
(cc)
Neither the Company nor any of its Subsidiaries, directors or officers nor, to the knowledge of the Company, any director
or officer of any of its Subsidiaries nor any agent, employee, affiliate or other person associated with or acting on behalf of
the Company or any of its Subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity in contravention of the Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”)
or the Bribery Act 2010 of the United Kingdom, as amended (the “UKBA”); (ii) made or taken an act in furtherance of
an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government
or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization,
or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official
or candidate for political office in contravention of the FCPA or the UKBA; (iii) violated or is in violation of any provision
of the FCPA or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions, or committed an offence under the UKBA or any other applicable anti-bribery or anti-corruption
laws (collectively, the “Anti-Corruption Laws”) or (iv) made, offered, agreed, requested or taken an act in furtherance
of any unlawful bribe or other unlawful benefit, including, without limitation, any unlawful rebate, payoff, influence payment,
kickback or other unlawful or improper payment or benefit. The Company has implemented and maintained in effect policies and procedures
reasonably designed to promote compliance by the Company and its Subsidiaries and their respective directors, officers, agents,
employees and affiliates with all applicable anti-bribery and anti-corruption laws.
(dd)
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the applicable money laundering statutes of all jurisdictions where the Company or any of its Subsidiaries conducts business, the
rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or
before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Company or any of its
Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(ee)
Neither the Company nor any of its Subsidiaries, directors or officers nor, to the knowledge of the Company, any director
or officer of any of its Subsidiaries nor any agent, employee, affiliate or other person associated with or acting on behalf of
the Company or any of its Subsidiaries is currently the subject or the target of any sanctions administered or enforced by the
U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”)
or the U.S. Department of State and including, without limitation, the designation as a
“specially designated national”
or “blocked person”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s
Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company,
any of its Subsidiaries located, organized or resident in a country or territory that is the subject or the target of Sanctions,
including, without limitation, on the date hereof, Crimea, Cuba, Iran, North Korea, South Sudan and Syria (each, a “Sanctioned
Country”); and the Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity, (i) in furtherance of an offer,
payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person or entity
in violation of the Anti-Corruption Laws or any additional anti-bribery or anti-corruption laws and regulations of any jurisdiction
applicable to the Company and its Subsidiaries, (ii) for the purpose of funding, financing or facilitating any activities, business
or transaction of or with any Sanctioned Person (or, to the knowledge of any officer, director or employee of the Company who is
engaged in or has approved a transaction with such person, any person in which a Sanctioned Person owns, directly or indirectly,
a 50 percent or greater interest) or in any Sanctioned Country, or (iii) in any other manner that would result in the violation
of any Sanctions applicable to any party hereto.
“Sanctioned
Country” means, at any time, a country or territory which is the subject or target of any comprehensive territorial Sanctions.
“Sanctioned
Person” means, at any time, (a) any person or entity listed in any Sanctions-related list of designated persons maintained
by OFAC, the U.S. Department of State or HMT, or (b) any person or entity located, organized or resident in a Sanctioned Country.
(ff)
No holders of securities of the Company have rights to the registration of such securities under the Registration Statement.
(gg)
There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(hh)
Since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration
Statement, the Disclosure Package and the Final Prospectus, there has been no material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto).
Any certificate signed
by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I hereto the principal amount of the Securities set forth opposite
such Underwriter’s name in Schedule II hereto.
3.
Delivery and Payment. Delivery of and payment for the Securities shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than three Business Days after the foregoing date
as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the
“Closing Date”). Delivery of the Securities shall be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4.
Offering by Underwriters. It is understood that the several Underwriters propose to offer the Securities for
sale to the public as set forth in the Final Prospectus.
5.
Agreements. The Company agrees with the several Underwriters that:
(a)
Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company
has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you
reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a
form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly
advise the Representatives: (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to
the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for
any amendment of the Registration Statement or for any supplement to the Final Prospectus or for any additional information, (4) of
the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting
to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution
or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of
any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement
and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b)
To prepare a final term sheet, containing solely a description of final terms the Securities, in the form attached as Schedule IV
hereto, and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c)
If, at any time prior to the filing of a final prospectus pursuant to Rule 424(b), any event occurs as a result of
which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, the
Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended
or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply
any amendment or supplement to you in such quantities as you may reasonably request.
(d)
If, at any time when the Final Prospectus relating to the Securities is required to be delivered under the Act (including
in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the
Final Prospectus, as then supplemented, would include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading,
or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus
to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of
the Final Prospectus, the Company promptly will (i) notify the Representatives of such event, (ii) prepare and file with
the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new
registration statement which will correct such statement or omission or effect such compliance, (iii) use its reasonable best
efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable
in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in
such quantities as you may reasonably request.
(e)
As soon as practicable, the Company will make generally available to its security holders and to the Representatives, an
earnings statement or statements (which need not be audited) of the Company and its Subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158.
(f)
The Company will furnish to each of the Representatives and counsel for the Underwriters, without charge, one signed copy
of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus,
the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(g)
The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions
as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the
Securities and will pay any fee of the Financial Industry Regulatory Authority in connection with its review of the offering; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that (i) would subject it to service of process in suits, other than those arising out of the offering
or sale of the Securities, or (ii) would subject it to payment of taxes, in any jurisdiction where it is not now so subject.
(h)
The Company agrees that, unless it has obtained or will obtain the prior written consent of the Representatives, and each
Underwriter, severally and not jointly, agrees with the Company that, unless each of them has obtained or will obtain, as the case
may be, the prior written consent of the Company, each of them has not made and will not make any offer relating to the Securities
that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus”
(as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433,
other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to
Section 5(b) hereof; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect
of the Free Writing Prospectuses included in Schedule III and Schedule V hereto. Any such free writing prospectus consented
to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and
433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and
record keeping.
(i)
The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate
of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase
a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange
Act,
any debt securities issued or
guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such transaction, until the
Business Day set forth on Schedule I hereto.
(j)
The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities. The Company has not issued nor will issue, without the prior
consent of the Underwriters, any stabilization announcement referring to the proposed issue of Securities. The Company authorizes
the Underwriters to make such public disclosure of information relating to stabilization of the Securities as is required by applicable
law, regulation and guidance.
(k)
Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Act of the Registration Statement,
the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Disclosure Package and the Final Prospectus (including all
exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing this
Agreement, the Indenture and the Securities; (iv) the fees and expenses of the Company’s counsel and independent accountants;
(v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment
of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution
of a Blue Sky Memorandum (including the reasonable related fees and expenses of counsel for the Underwriters); (vi) any fees charged
by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related
fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with any filing
with, and clearance of the offering by, the Financial Industry Regulatory Authority; and (ix) all expenses incurred by the Company
in connection with any “road show” presentation to potential investors.
6.
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities
shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution
Time and the Closing Date, to the accuracy of the statements of the Company made in any certificate pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a)
The Final Prospectus, and any supplement thereto, has been filed in the manner and within the time period required by Rule 424(b);
the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant
to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for
such filings by Rule 433;
and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or, to the Company’s knowledge, threatened.
(b)
The Company shall have requested and caused Jones Day, counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached as Exhibit A
hereto.
(c)
The Company shall have requested and caused Michael O’Brien, general counsel for the Company, to have furnished to
the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached
as Exhibit B hereto.
(d)
The Representatives shall have received from Shearman & Sterling LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities,
the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such matters.
(e)
The Company shall have furnished to the Representatives a certificate of the Company, signed by an Executive Vice President,
and the principal financial or accounting officer of the Company dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements
or amendments thereto, as well as each electronic roadshow used to offer the Securities identified on Schedule V and this
Agreement and that:
(i)
the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing Date;
(ii)
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued
and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii)
since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive
of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(f)
The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and
at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively
as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the applicable rules and regulations thereunder adopted by the
Commission and the PCAOB and containing statements and information of the type customarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated
by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided that the letter delivered
on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(g)
Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof), and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall
not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6
or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive
of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure
Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h)
Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt
securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62)
under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(i)
Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions
specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and, subject to
Section 11 hereof, all obligations
of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required
to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the Underwriters,
at 599 Lexington Avenue, New York, New York 10022 on the Closing Date.
7.
Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform
any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally through Citigroup Global Markets Inc. on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
8.
Indemnification and Contribution. (a) The Company agrees, to indemnify and hold harmless each Underwriter,
the directors, officers, employees, affiliates and agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus
supplement relating to the Securities, the Final Prospectus or any Issuer Free Writing Prospectus or the information contained
in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise have.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company within the meaning of either the
Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading “Underwriting,” (i) in the first paragraph, the list
of Underwriters and their respective participation in the sale of the Securities, and (ii) the fifth paragraph related to
stabilization in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any Preliminary Prospectus or the Final Prospectus.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent
the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. In no event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate from their own counsel in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of the same general allegations. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment
with respect to any pending
or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include
an admission of fault.
(d) In
the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is unavailable to or insufficient
to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending same) (collectively “Losses”) to which the Company and one or more of the Underwriters may be subject
in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters
on the other from the offering of the Securities; provided, however, that in no case shall (i) any Underwriter
(except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder.
If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received by them and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d),
no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls
an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
9.
Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in
the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that
in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and
if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any non-defaulting
Underwriter for damages occasioned by its default hereunder.
10.
Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives,
by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading
in the Company’s common stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared either by U.S. Federal, New York State or Delaware
State authorities, (iii) there shall have occurred a material disruption in securities settlement or clearance services in the
United States or (iv) there shall have occurred any outbreak or escalation of hostilities nationally or internationally involving
the United States, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which
on the United States or international financial markets is such as to make it, in the sole judgment of the Representatives, impractical
or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the
Final Prospectus (exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 5(k), 7, 8 and 16 hereof shall survive the termination or cancellation
of this Agreement.
12.
Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telefaxed to
Citigroup Global Markets Inc., 388 Greenwich
Street New York, NY 10013, J.P. Morgan Securities LLC, 383 Madison Avenue, New York, NY, 10179, Wells Fargo Securities, LLC, 550
South Tryon Street, Charlotte, NC 28202., or, if sent to the Company, will be mailed, delivered or telefaxed to 437 Madison Avenue,
New York, New York 10022 (fax: +1 212-415-3470), attention of the Legal Department, and confirmed to it at
Jones Day, 250 Vesey Street, New York, New York 10281 (fax: +1 212-755-7306), Attention: Rory T. Hood.
13.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14.
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant
to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and
any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent
or fiduciary of the Company and (c) the Company’s engagement of the Underwriters in connection with the offering and
the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees
that it is solely responsible for making its own judgment in connection with the offering (irrespective of whether any of the Underwriters
has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the
Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company,
in connection with such transaction or the process leading thereto.
15.
Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between
the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
16.
Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State
of New York applicable to contracts made and to be performed within the State of New York.
17.
Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
18.
Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an
original and all of which together shall constitute one and the same agreement.
19.
Stabilization. In connection with the issue of the Securities, Citigroup Global Markets Inc. (in this capacity,
the “Stabilizing Manager”) (or any person acting on its behalf), may over-allot Securities or effect transactions with
a view to supporting the market price of the Securities during the stabilization period at a level higher than that which might
otherwise prevail. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing
Manager) will undertake any stabilizing action. Nothing contained
in this Section 19 shall be construed
so as to require the Company to issue in excess of the aggregate principal amount of Securities specified in Schedule II hereto.
Such stabilization, if commenced, may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance
with all applicable laws and directives.
20.
Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), certain of the Underwriters are required to obtain, verify and record information
that identifies their respective clients, including the Company, which information may include the name and address of their respective
clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
21.
Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered
Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement,
and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective
under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of
the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding
under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are
permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime
if this Agreement were governed by the laws of the United States or a state of the United States.
(c) As
used in this Section 21:
“BHC Act
Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with,
12 U.S.C. § 1841(k).
“Covered
Entity” means any of the following:
(i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“U.S. Special
Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii)
Title II of the
Dodd-Frank Wall Street Reform and
Consumer Protection Act and the regulations promulgated thereunder.
22.
Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives
on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
23.
Headings. The section headings used herein are for convenience only and shall not affect the construction
hereof.
24.
Definitions. The terms which follow, when used in this Agreement, shall have the meanings indicated.
“Act”
shall mean the Securities Act of 1933, as amended and the rules and regulations of the Commission promulgated thereunder.
“Base
Prospectus” shall mean the base prospectus dated February 19, 2020 referred to in Section 1(a) above contained in the Registration
Statement to be used in connection with the offer and sale of the Securities.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York City, United States.
“Commission”
shall mean the Securities and Exchange Commission.
“Disclosure
Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution
Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto (including the final term
sheet, identified in Schedule III hereto) and (iv) any other Free Writing Prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package and which are identified in Schedule III hereto.
“Effective
Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or become effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Execution
Time” shall mean 3:55 p.m. New York City time on February 19, 2020.
“Final
Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Base Prospectus.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405 used in connection with the offering
of the Securities.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433 used in connection with
the offering of the Securities.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus referred to in Section 1(a) above which
is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration
Statement” shall mean the registration statement referred to in Section 1(a) above, including exhibits and financial
statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b)
and deemed part of such registration statement pursuant to Rule 430A, 430B and 430C, as amended on each Effective Date and
at the Execution Time and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended.
“Rule 158,”
“Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,”
“Rule 424,” “Rule 430A,” “Rule 430B,” “Rule 430C” and “Rule 433”
refer to such rules under the Act.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated
thereunder.
“Well-Known
Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
If the foregoing is
in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
Very truly yours,
Omnicom Group Inc.
By: /s/ Philip J. Angelastro________
Name: Philip J. Angelastro
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is hereby confirmed
and accepted
as of the date specified in Schedule I hereto.
By: Citigroup Global Markets Inc.
By: /s/ Brian D. Bednarski
Name: Brian D. Bednarski
Title: Managing Director
By: J.P. Morgan Securities LLC
By: /s/ Robert Bottamedi
Name: Robert Bottamedi
Title: Executive Director
By: Wells Fargo Securities, LLC
By: /s/ Patrick Jordan
Name: Patrick Jordan
Title: Managing Director
SCHEDULE I
Underwriting
Agreement dated February 19, 2020
Registration
Statement No. 333-236502
|
|
Representatives:
|
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
|
Title, Principal
Amount, Purchase Price and Description of Securities:
Title: 2.450%
Senior Notes due 2030
Principal
amount: $600,000,000
Purchase price
(include accrued interest or amortization, if any): 99.006% per 2.450% Senior Notes due 2030
Sinking fund
provisions: None
Redemption
provisions: Make-Whole Spread: +15 basis points
Closing Date, Time and Location: February
21, 2020 at 9:00 a.m. New York time at Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022
Type of Offering:
Non-delayed
Date referred to in Section 5(i)
after which the Company may offer or sell debt securities issued by the Company without the consent of the Representatives: February
21, 2020
SCHEDULE II
|
Underwriters
|
Principal Amount
of Securities
to be Purchased
|
|
Citigroup Global Markets Inc.
|
$90,000,000
|
|
J.P. Morgan Securities LLC
|
$90,000,000
|
|
Wells Fargo Securities, LLC
|
$90,000,000
|
|
BofA Securities, Inc.
|
$51,000,000
|
|
HSBC Securities (USA) Inc.
|
$51,000,000
|
|
Barclays Capital Inc.
|
$24,000,000
|
|
BNP Paribas Securities Corp.
|
$24,000,000
|
|
Deutsche Bank Securities Inc.
|
$24,000,000
|
|
Mizuho Securities USA LLC
|
$24,000,000
|
|
MUFG Securities Americas Inc.
|
$24,000,000
|
|
SMBC Nikko Securities America, Inc.
|
$24,000,000
|
|
TD Securities (USA) LLC
|
$24,000,000
|
|
U.S. Bancorp Investments, Inc.
|
$24,000,000
|
|
RBC Capital Markets, LLC
|
$12,000,000
|
|
Scotia Capital (USA) Inc.
|
$12,000,000
|
|
Siebert Williams Shank & Co., LLC
|
$12,000,000
|
|
TOTAL
|
$600,000,000
|
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure
Package:
Final Pricing Term Sheet dated February 19, 2020, for $600,000,000
aggregate principal amount of 2.450% Senior Notes due 2030, filed on February 19, 2020 with the Commission by the Company
pursuant to Rule 433 under the Securities Act.
SCHEDULE IV
FORM OF PRICING TERM SHEET
Issuer Free Writing Prospectus
Filed Pursuant to Rule 433
Registration Statement No. 333-236502
February 19, 2020
Omnicom Group Inc.
$600,000,000 2.450% Senior Notes due 2030
Pricing Term Sheet
|
Issuer:
|
Omnicom Group Inc.
|
|
Expected Ratings*:
|
[Omitted]
|
|
Title of Securities:
|
2.450% Senior Notes due 2030
|
|
Principal Amount:
|
$600,000,000
|
|
Coupon:
|
2.450% per annum
|
|
Interest Payment Dates:
|
Semi-annually on each April 30 and October 30
|
|
Initial Interest Payment Date:
|
October 30, 2020 (long first coupon)
|
|
Maturity Date:
|
April 30, 2030
|
|
Benchmark Treasury:
|
1.500% UST due February 15, 2030
|
|
Benchmark Treasury Price and Yield:
|
99-12 / 1.568%
|
|
Spread to Benchmark Treasury:
|
T + 92 basis points
|
|
Yield to Maturity:
|
2.488%
|
|
Price to Public (Issue Price):
|
99.656%
|
|
All-In Price (after deducting underwriting commissions):
|
99.006%
|
|
Optional Redemption:
|
Prior to January 30, 2030, the date that is three months prior to the maturity date, 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 plus a make-whole premium (calculated at a rate equal to the sum of the applicable Treasury Rate plus 15 basis points), together with accrued and unpaid interest thereon to the redemption date. On or after January 30, 2030, 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, together with accrued and unpaid interest thereon to the redemption date.
|
|
Trade Date:
|
February 19, 2020
|
|
Settlement Date:
|
February 21, 2020
|
|
CUSIP:
|
681919 BB1
|
|
ISIN:
|
US681919BB11
|
|
Use of Proceeds:
|
We intend to use the net proceeds from the sale of the notes offered hereby, together with cash on hand, to redeem our 4.45% Senior Notes due 2020 co-issued with Omnicom Capital Inc., which mature on August 15, 2020, and of which $600 million aggregate principal amount was outstanding as of December 31, 2019. Pending the application of the net proceeds, we may invest such net proceeds in short-term investment grade obligations.
|
|
Joint Book-Running Managers:
|
Citigroup Global Markets Inc.
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
BofA Securities, Inc.
HSBC Securities (USA) Inc.
|
|
Co-Managers:
|
Barclays Capital Inc.
BNP Paribas Securities Corp.
Deutsche Bank Securities Inc.
Mizuho Securities USA LLC
MUFG Securities Americas Inc.
SMBC Nikko Securities America, Inc.
TD Securities (USA) LLC
U.S. Bancorp Investments, Inc.
RBC Capital Markets, LLC
Scotia Capital (USA) Inc.
Siebert Williams Shank & Co., LLC
|
*An explanation of the significance of ratings
may be obtained from the ratings agencies. Generally, ratings agencies base their ratings on such material and information, and
such of their own investigations, studies and assumptions, as they deem appropriate. The security ratings above are not a recommendation
to buy, sell or hold the securities offered hereby. The ratings may be subject to review, revision, supervision, reduction or withdrawal
at any time by Moody’s or Standard & Poor’s. Each of the security ratings above should be evaluated independently
of any other security rating.
The issuer has filed a registration statement
(including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read
the prospectus in that registration statement, the preliminary prospectus supplement and other documents the issuer has filed with
the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR
on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will
arrange to send you the prospectus and the preliminary prospectus supplement if you request it by calling Citigroup Global Markets
Inc. at 1-800-831-9146, J.P. Morgan Securities LLC at 1-212-834-4533 or Wells Fargo Securities, LLC at 1-800-645-3751.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY
APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY
GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
SCHEDULE V
|
|
1.
|
Electronic road show of the Company dated February 18, 2020
|
Exhibit 4.1
OMNICOM GROUP INC.
as Issuer
INDENTURE
Dated as of February 21, 2020
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
Debt Securities
TABLE OF CONTENTS
TABLE OF CONTENTS
(Continued)
TABLE OF CONTENTS
(Continued)
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 February 21, 2020
among OMNICOM GROUP INC., a New York corporation, (the “Issuer”), and Deutsche Bank Trust Company Americas, a New York
banking corporation, as Trustee (“Trustee”).
The Issuer has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness
to be issued in one or more series (the “Securities”), 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 its 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”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Issuer in respect of certain taxes imposed on Holders specified therein and which are owing to such Holders.
“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.
“Board of Directors”
means, with respect to the Issuer, either the board of directors of the Issuer 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 Issuer 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 or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
“Company Request”
or “Company Order” means a written request or order signed in the name of the Issuer by its Chairman of the
Board, Chief Financial Officer, a President or a Vice
President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, 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, 60 Wall Street, 24th Floor, MS NYC 60-2405, New York, New York 10005, USA, Attention: Corporate Team/Omnicom
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.
“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, 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, The Depository
Trust Company, New York, New York, or any successor thereto registered under the Exchange Act or other applicable statute or regulation.
“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.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time.
“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
a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof), of all or any part of any Debt.
“Guarantor” means
any person, if any, identified pursuant to Section 2.2.18 of this Indenture as providing a Guarantee of any of the Issuer’s
obligations under this Indenture, and its 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.
“Issuer” means the
party named as such in the preamble to this Indenture until a successor replaces it pursuant to the applicable provisions of this
Indenture and, thereafter, shall mean any such successor. The foregoing sentence shall likewise apply to any subsequent such successor
or successors.
“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 or any Assistant Secretary of the Issuer.
“Officer’s Certificate”
means a certificate signed by any Officer of the Issuer.
“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
Issuer.
“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.
“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 Issuer 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 Issuer created pursuant to Sections
2.1 and 2.2 hereof.
“Significant Subsidiary”
means (i) any direct or indirect Subsidiary of the Issuer 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 Issuer 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.
“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 Law”
|
6.1
|
|
“Custodian”
|
6.1
|
|
“Event of Default”
|
6.1
|
|
“Legal Holiday”
|
10.7
|
|
“mandatory sinking fund payment”
|
11.1
|
|
“optional sinking fund payment”
|
11.1
|
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“Paying Agent”
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2.4
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“Registrar”
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2.4
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“successor person”
|
5.1
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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 Issuer 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; and
(f) 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 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 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 2.2.21) by a Board Resolution, a supplemental indenture or an Officer’s
Certificate 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 Issuer;
2.2.8 the
obligation, if any, of the Issuer 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 Issuer at the
option of the Holders thereof and other detailed terms and conditions of such repurchase obligations;
2.2.10 if
other than denominations of $2,000 and integral multiples of $1,000 in excess thereof, the 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 or V 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 any Guarantee of the Securities and the terms and conditions, if any, upon which any Guarantees thereof shall
be subordinated in right of payment to other indebtedness of the Issuer or any Guarantor;
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; and
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 or preferred stock of the Issuer.
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 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.
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 Issuer 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 Issuer 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 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, 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 Issuer 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 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 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 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 Issuer 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 Issuer or an Affiliate of the Issuer.
SECTION 2.4 Registrar and Paying
Agent. The Issuer 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 Issuer 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 Issuer 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 Issuer hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Issuer 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 Issuer 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 Issuer
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 Issuer 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 Issuer 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
Issuer 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 Issuer 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
Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a Subsidiary of the Issuer
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 Issuer 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 Issuer 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).
Neither the Issuer nor 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 Issuer 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 Issuer
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 Issuer or the Trustee that such Security has been acquired by a protected purchaser, the Issuer 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 Issuer in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new Security
under this Section, the Issuer 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 Issuer, 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 Issuer,
a Subsidiary of the Issuer 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 with respect to any Series.
A Security does not cease to be outstanding
because the Issuer or an Affiliate of the Issuer 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 Issuer or an Affiliate of the Issuer 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 Issuer 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 Issuer considers appropriate for temporary Securities. Without unreasonable delay, the Issuer 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 Issuer 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 Issuer deliver a certificate of such destruction to the Issuer, unless the Issuer otherwise directs.
The Issuer 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 Issuer 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 Issuer shall fix the record date and payment date. At least 30 days before the record date, the Issuer
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 Issuer 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 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 Issuer shall establish that the Securities of a particular Series are to be issued
as a Global Security, then the Issuer 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 Issuer 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, and, in either case, the Issuer fails to appoint a successor Depository within 90 days of such event, (ii)
the Issuer 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 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.”
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 Issuer, 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 Issuer, 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 Issuer, the Trustee or the Agents shall be affected by notice to the contrary.
SECTION 2.15 CUSIP, ISIN and Common
Code Numbers. The Issuer 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 Issuer
shall promptly notify the Trustee in writing of any change in the CUSIP, ISIN and/or Common Code numbers.
ARTICLE
III
REDEMPTION
SECTION 3.1 Notice to Trustee.
The Issuer 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 Issuer 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 Issuer shall
notify the Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The Issuer 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, 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 $2,000. Securities of
the Series and portions of them it selects shall be in amounts of $2,000 or integral multiples of $1,000 in excess thereof or,
with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination
for each Series and integral multiples thereof. 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,
at least 15 days but not more than 60 days before a redemption date, the Issuer 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 Issuer’s request and upon
its provision of such notice information, the Trustee shall give the notice of redemption in the Issuer’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 Issuer 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 on the redemption date, the Issuer 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 Issuer covenants and agrees for the benefit of the Holders of each Series of Securities that the Issuer 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, by the Issuer. 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
Issuer 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 Issuer is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Issuer also shall comply
with the other provisions of TIA ss. 314(a). For the avoidance of doubt, the Issuer will be deemed to have furnished such reports
referred to above to the Trustee and the Holders, as applicable, if the Issuer 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 Issuer 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 Issuer’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s
Certificate).
SECTION 4.3 Compliance Certificate.
The Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Issuer, an Officer’s Certificate
signed by one of
the principal executive, financial or accounting
officers of the Issuer, stating that a review of the activities of the Issuer and its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer has
kept, observed, performed and fulfilled its 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 Issuer has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is 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 Issuer 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 Issuer has taken, is taking or proposes to take with respect thereto.
SECTION 4.4 Stay, Extension and
Usury Laws. The Issuer covenants (to the extent that it may lawfully do so) that it 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 or the Securities; and the
Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it 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 Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect
its 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 Issuer and the Significant Subsidiaries; provided, however, that the Issuer 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 Issuer’s Board
of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer
and its 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 Issuer
shall, and shall cause the 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 Issuer May
Merge, Etc. The Issuer 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) the
successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws of
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, the Issuer’s obligations on 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 Issuer 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 Issuer (other than to the Issuer or another Subsidiary
of the Issuer), which, if such assets were owned by the Issuer, would constitute all or substantially all of the properties and
assets of the Issuer, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer,
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 Issuer in accordance with Section 5.1, the successor corporation formed by such consolidation or into
or with which the Issuer 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 Issuer under this Indenture with the same effect as if such
successor person has been named as the Issuer herein; provided, however, that the predecessor Issuer 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 Issuer, 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 Issuer.
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, 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 Issuer 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 Issuer 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 Issuer by the Trustee or to
the Issuer 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 Issuer’s failure to make any payment by the end of any applicable grace period after maturity of its indebtedness, which
term as used in this clause (e) means obligations (other than nonrecourse obligations) of the Issuer 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 its 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 Issuer by the Trustee or to the Issuer and the Trustee by 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
Issuer 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 Issuer or any of the Significant Subsidiaries in an involuntary case,
(ii) appoints
a Custodian of the Issuer or any of the Significant Subsidiaries or for all or substantially all of its respective property, or
(iii) orders
the liquidation of the Issuer or any of the Significant Subsidiaries, and the order or decree remains unstayed and in effect for
60 days; or
(h) 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, in accordance with Section 2.2.14.
The term “Bankruptcy Law”
means Title 11, U.S. Code or any similar federal or State law for the relief of debtors. The term “Custodian” means
any receiver, trustee, assignee, 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 Issuer 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 Issuer (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 Issuer, 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 Issuer and the Trustee, may rescind and annul such declaration and its consequences
if:
(a) the
Issuer 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 Issuer 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 Issuer 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 Issuer 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 Issuer or any other obligor 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 Issuer or any other obligor 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 Issuer or any other obligor upon the Securities or the property of the
Issuer or of such other obligor 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 Issuer 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 Issuer 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 Issuer, 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
Issuer, 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.
(b) 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).
(c) 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.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) 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.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) 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.
(h) 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 Issuer or an Affiliate of the Issuer 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 Issuer’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, 2020, 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 Issuer shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.
SECTION 7.7 Compensation and Indemnity.
The Issuer shall pay to the Trustee compensation as agreed to in writing between the Issuer 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 Issuer 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 Issuer shall 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 Issuer promptly of any claim for which it may seek indemnity. The Issuer shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Issuer shall pay the reasonable fees and
expenses of such counsel. The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Issuer 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 Issuer’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 the Issuer. 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 and the Issuer. The Issuer 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 Issuer 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 Issuer.
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 Issuer or the Holders of at least 10% in principal amount of the Securities of the applicable Series
may, at the expense of the Issuer, 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 Issuer. Immediately after that, the retiring Trustee shall transfer
all property held by it as Trustee to the successor Trustee at the expense of the Issuer 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 Issuer’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 Issuer, 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 Issuer, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the Issuer, 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
Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and
(c) the
Issuer 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 Issuer to the Trustee under Section 7.7, and, if money shall have been deposited
with the Trustee pursuant to clause (a) 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 and U.S. 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
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 Issuer 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
Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. 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 Issuer from time to time upon Company Request any U.S. 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 or money were deposited or received. This provision shall
not authorize the sale by the Trustee of any U.S. 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 Issuer 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 Issuer, 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
Issuer 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
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,
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 Issuer is a party or by which it is 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
Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the
Issuer 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
Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with
the intent of preferring the Holders of the Securities of such Series over any other creditors of the Issuer or with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Issuer;
(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
Issuer 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 Issuer 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 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 Issuer 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 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, 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 Issuer is a party or by which it is 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
Issuer 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
Issuer shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Issuer with the
intent of preferring the Holders of the Securities of such Series over any other creditors of the Issuer or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Issuer; and
(f) The
Issuer 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 Issuer.
The Trustee and the Paying Agent shall pay to the Issue 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 Issuer 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 Issuer’s obligations under this Indenture and the Holders of 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 Issuer 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;
(i) to
add to the Issuer’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 Issuer;
(j) 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
(k) 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 Issuer 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 Issuer 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 Issuer 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 Issuer 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.
(b) 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; or
(ix) 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 (ix) 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 Issuer 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 Issuer or the Trustee to the other is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Issuer:
Omnicom Group Inc.
437 Madison Avenue
New York, New York 10022
Attention: General Counsel
if to the Trustee:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 24th Floor
MS: NYC60-2405
New York, NY 10005
Attention: Corporates – Omnicom Group Inc.
Fax: 732-578-4635
The Issuer or the Trustee by notice to
the other 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 Issuer 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 Issuer, 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 Issuer to the Trustee to take any action under this Indenture,
the Issuer 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 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 Issuer shall not have any liability for any obligations
of the Issuer 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.
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.
The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution
and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures
of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 10.10 Governing Laws.
THIS 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 10.11 No Adverse Interpretation
of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Issuer or
a Subsidiary of the Issuer. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.12 Successors. All
agreements of the Issuer in this Indenture and the Securities shall bind its 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,
the Issuer agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation
as may be available for the Issuer 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 unrest, local or
national disturbance or disaster, any act of terrorism, 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;
Waiver of Jury Trial. The Issuer 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 Issuer or any
of its 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 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
the Issuer 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 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 Issuer 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 Issuer 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 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 Issuer any cash payment so being held by the Trustee or such Paying Agent upon delivery by the
Issuer to the Trustee of Securities of that Series purchased by the Issuer having an unpaid principal amount equal to the cash
payment required to be released to the Issuer.
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 in respect of a particular Series of Securities) prior to each sinking fund payment date for any
Series of Securities, the Issuer 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 Issuer 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 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 Issuer 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.
IN WITNESS WHEREOF, the parties hereto
have caused this Indenture to be duly executed as of the day and year first above written.
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OMNICOM GROUP INC.
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By:
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/s/ Philip J. Angelastro
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Name:
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Philip J. Angelastro
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Title:
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Executive Vice President and Chief
Financial Officer
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DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
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By:
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/s/ Bridgette Casasnovas
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Name:
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Bridgette Casasnovas
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Title:
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Vice President
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By:
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/s/ Robert S. Peschler
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Name:
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Robert S. Peschler
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Title:
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Vice President
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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 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.]
[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 GROUP INC., a New York corporation
(the “Issuer,” 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 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 _________ and in each year] [If other than semi-annual
payments, insert frequency of payments and payment dates], commencing ____________, 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 Issuer maintained
for that purpose in ______________, in accordance with the terms of the Indenture referred to on the reverse hereof in such coin
or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Issuer 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).
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.
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.
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Dated:
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OMNICOM GROUP INC.
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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
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Form of Reverse of Security.
OMNICOM GROUP INC.
[Title of Series]
This Security is one of a duly authorized
issue of securities of the Issuer, 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 Issuer 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 Issuer, 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 Issuer 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 Issuer, 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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Redemption Year
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Price
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Redemption Year
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Price
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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 Issuer, 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,
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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 Issuer 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 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.
[If the Security is convertible into
or exchangeable for common stock of the Issuer, 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 convertible into
or exchangeable for other securities or property, 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 Issuer’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 Issuer 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] 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] and that the subordination provisions in the
applicable [supplemental indenture][Officer’s Certificate] 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 Issuer and the rights of the Holders of the Securities of each Series
to be affected under the Indenture at any time by the Issuer 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 Issuer 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 Issuer 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 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(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 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, 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 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 Trustee and any agent of the Issuer 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 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 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 GROUP INC.
as Issuer
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 21, 2020
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Trustee
Debt Securities
First Supplemental Indenture dated
as of February 21, 2020 (the “First Supplemental Indenture”) between Omnicom Group Inc., a New York corporation
(the “Issuer”) 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 Issuer and the Trustee executed and delivered an indenture dated as of February 21, 2020 (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 a Series of the Issuer’s 2.450% Senior Notes due 2030 (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 Securities on the date hereof;
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
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 Trustee in writing at its request 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:
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(1)
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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 the Issuer 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 the Issuer or one of its Subsidiaries;
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(2)
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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 the Issuer 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 the Issuer’s Voting Stock, measured by voting
power rather than number of shares; or
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(3)
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the adoption of a plan relating to the liquidation or dissolution of the Issuer.
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Notwithstanding the foregoing, a transaction
will not be deemed to involve a Change of Control if (i) the Issuer 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 the Issuer’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 Treasury Issue”
means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining
term of the
Securities (assuming the Securities matured on the par call date),
that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the Securities (assuming the Securities matured on the
par call date).
“Comparable Treasury Price”
means, with respect to any redemption date, the Reference Treasury Dealer Quotations for that redemption date.
“Consolidated Net Worth”
means the consolidated net worth of the Issuer, 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.
“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 such Securities publicly available for reasons outside of the Issuer’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 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.
“Reference Treasury Dealer”
means each of any three primary U.S. Government securities dealer selected by the Issuer, and their respective successors.
“Reference Treasury Dealer Quotations”
means, with respect to the Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Issuer by the Reference Treasury
Dealer at 3:30 p.m., New York City time, on the third business day preceding that redemption date.
“Remaining Scheduled Payments”
means the remaining scheduled payments of principal of and interest on the Securities that but for the redemption would be due
after the related redemption date through the par call date, assuming the Securities matured on the par call date, not including
any portion of such interest payment accrued as of such redemption date. If that redemption date is not an interest payment date
with respect to the Securities, the amount of the next succeeding scheduled interest payment on the Securities will be reduced
by the amount of interest accrued on the Securities to such redemption date.
“S&P” means S&P Global
Ratings, and its successors.
“Treasury Rate” means, with
respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity (computed as of the third
business day immediately preceding that redemption date) of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that redemption date.
“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.
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 as a Series of Securities under the Indenture shall be the “2.450%
Senior Notes due 2030”;
2.1.2. Pursuant to Section 2.2.2 of
the Indenture, the price or prices at which the Securities of the Series will be issued initially shall be 99.656% 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 initially 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 on April 30, 2030;
2.1.5. Pursuant to Section 2.2.5 of
the Indenture, the Securities shall bear interest at a rate equal to 2.450% per annum; interest on the Securities shall accrue
from February 21, 2020 until the principal thereof is paid or duly provided for; interest on the Securities shall be payable semi-annually
in arrears in cash on April 30 and October 30 of each year, commencing on October 30, 2020 to Holders of record on April 15 and
October 15 (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 February 21, 2020) to but excluding the next interest payment date on the basis of a 360-day year consisting of twelve
30-day months. In the event that any principal or interest on the Securities is not paid when due, whether at Maturity or otherwise,
then except 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 semi-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 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 $2,000 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;
2.1.12. Pursuant to Section 2.2.15
of the Indenture, the Issuer shall be subject to the additional restrictions as set forth in Section 4.1 of this First Supplemental
Indenture; and
2.1.13. Pursuant to Section 2.2 of
the Indenture, the Issuer may, without the consent of the Holders of the Securities of any Series, issue additional Securities
of such Series having the same ranking and the same interest rate, maturity and other terms as the Securities of such Series 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 be a part of the Series having the same terms as the Securities
of such Series issued on the date hereof, provided that such additional Securities subsequently issued are fungible for U.S. federal
income tax purposes with any Securities of such Series previously issued.
ARTICLE
THREE
ADDITIONAL
REDEMPTION PROVISION
Section 3.1.
Optional Redemption.
Prior to January 30, 2030 (“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 Securities at least 15 days but
not more than 60 days prior to the redemption. The redemption price 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 the Securities
discounted to the date of redemption, on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months), at a
rate equal to the sum of the applicable Treasury Rate plus 15 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 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 the 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. New York City time on the redemption date, the Issuer shall
deposit with a 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 Depository.
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,
each Holder of 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 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 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 each Change of Control Payment Date,
the Issuer shall, to the extent lawful:
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(a)
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accept for payment all Securities or portions of Securities properly tendered and not withdrawn pursuant to the Change of Control
Offer;
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(b)
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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
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(c)
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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.
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ARTICLE
FOUR
LIMITATION
ON LIENS
Section 4.1.
Limitation on Liens.
The Issuer 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 the Issuer’s properties,
whether now owned or hereafter acquired, to secure any Debt of the Issuer, any direct or indirect Subsidiary of the Issuer 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 the Issuer or any Subsidiary of the Issuer 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 19, 2020;
(d) Liens
on property of a person existing at the time such person is merged into, consolidated with, or acquired by the Issuer or any Subsidiary
of the Issuer or becomes a Subsidiary of the Issuer; 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
the Issuer or such Subsidiary or acquired by the Issuer or such Subsidiary;
(e) Liens
granted by Subsidiaries of the Issuer to secure Debt owed to the Issuer or a wholly owned Subsidiary of the Issuer;
(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 the Issuer 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 the Issuer or becomes a Subsidiary of the Issuer
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 the Issuer’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 (1) by and among the Issuer and its Subsidiaries or (2) 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 the Issuer and its Subsidiaries
as reflected in the consolidated balance sheet of the Issuer as of the end of the fiscal year of the Issuer most recently ended
prior to such assignment for which financial statements are available; and
(j) (1) Liens otherwise prohibited
by this covenant, securing Debt or other obligations in an aggregate amount at any time outstanding plus (2) 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 the Issuer and its Subsidiaries as
set forth in the Issuer’s most recently available financial statements.
ARTICLE FIVE
LIABILITY OF TRUSTEE
Section 5.1
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 SIX
MISCELLANEOUS
Section 6.1.
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 6.2
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 6.3
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.
Section 6.4
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 6.5.
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 6.6.
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 the
Issuer 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 6.7.
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 Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 6.8.
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 6.9.
Consent to Jurisdiction;
Waiver of Jury Trial.
The Issuer 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 any
of its 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 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 the Issuer 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 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 GROUP INC.
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By:
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/s/ Philip J. Angelastro
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Name:
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Philip J. Angelastro
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Title:
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Executive Vice President and
Chief Financial Officer
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DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
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By:
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/s/ Bridgette Casasnovas
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Name:
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Bridgette Casasnovas
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Title:
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Vice President
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By:
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/s/ Robert S. Peschler
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Name:
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Robert S. Peschler
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Title:
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Vice President
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Exhibit A
FORM OF GLOBAL SECURITY FOR THE 2.450%
SENIOR NOTES DUE 2030
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.
2.450% Senior Notes
due 2030
ISIN: US681919BB11
CUSIP No. 681919 BB1
$
No.
OMNICOM GROUP INC., a New York corporation (the “Issuer,”
which term includes any successor person under the Indenture hereinafter referred to), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, the principal sum of $ on April 30, 2030 and to pay interest thereon from
February 21, 2020 or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually
on April 30 and October 30 in each year, commencing October 30, 2020, at the rate of 2.450% 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 April 15 or October 15 (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 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).
Payment of the principal of (and premium, if
any) and interest on this Security will be
made at the office or agency of the Issuer maintained for that purpose
in The City of New York,
New York, in accordance with the terms of the Indenture referred
to on the reverse hereof in such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of the Issuer 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.
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.
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.
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Dated:
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OMNICOM GROUP INC.
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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:
Reverse of Security
OMNICOM GROUP INC.
2.450% Senior Notes due 2030
This Security is one of a duly authorized
issue of securities of the Issuer, designated as its 2.450% Senior Notes due 2030 (herein called the “Securities”),
issued and to be issued in one or more Series under an Indenture, dated as of February 21, 2020 (the “Base Indenture”),
between the Issuer 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 February 21, 2020,
between the Issuer 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 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 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.
Prior to January 30, 2030 (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 Securities at least
15 days but not more than 60 days prior to the redemption. The redemption price 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
the Securities discounted to the date of redemption, on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months), at a rate equal to the sum of the applicable Treasury Rate plus 15 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 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 Treasury Issue”
means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining
term of the
notes (assuming the notes matured on the par call date), that would
be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the remaining term of the notes (assuming the notes matured
on the par call date).
“Comparable Treasury Price”
means, with respect to any redemption date, the Reference Treasury Dealer Quotations for that redemption date.
“Reference Treasury Dealer”
means each of any three primary U.S. Government securities dealer selected by the Issuer, and their respective successors.
“Reference Treasury Dealer Quotations”
means, with respect to the Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Issuer by the Reference Treasury Dealer at 3:30 p.m., New York City time, on the third business day preceding
that redemption date.
“Remaining Scheduled Payments”
means the remaining scheduled payments of principal of and interest on the Securities that but for the redemption would be due
after the related redemption date through the par call date, assuming the Securities matured on the par call date, not including
any portion of such interest payment accrued as of such redemption date. If that redemption date is not an interest payment date
with respect to the Securities, the amount of the next succeeding scheduled interest payment on the Securities will be reduced
by the amount of interest accrued on the Securities to such redemption date.
“Treasury Rate” means, with
respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity (computed as of the third
business day immediately preceding that redemption date) of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that 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. New York City time on the redemption date, the Issuer shall
deposit with a 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 of such Series to be redeemed
shall be selected by such method as the Trustee deems fair and appropriate, subject to the procedures of the Depository.
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 a 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.
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 rights of the Holders of the Securities of each Series
to be affected under the Indenture at any time by the Issuer 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 Issuer 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 Issuer 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 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 $2,000 and integral multiples of $1,000 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 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 Trustee and any agent of the Issuer 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 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 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.
