Exhibit 1.1
EXECUTION COPY
FOSSIL
GROUP, INC.
7.00% SENIOR NOTES DUE 2026
UNDERWRITING AGREEMENT
November 3,
2021
B. Riley Securities, Inc.
As representative of the several underwriters
c/o B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, NY 10171
Ladies and Gentlemen:
Fossil
Group, Inc., a Delaware corporation (the "Company"), proposes to issue and sell to the several Underwriters
on Schedule A hereto (the "Underwriters"), for whom B. Riley Securities, Inc. is acting as representative
(in such capacity, the "Representative"), $140,000,000 aggregate principal amount of 7.00% Senior Notes due 2026 (the
"Firm Notes"). In addition, the Company proposes to grant to the Underwriters the option to purchase from the Company
up to an additional $10.0 million aggregate principal amount of 7.00% Senior Notes due 2026 (the "Additional Notes").
The Firm Notes and, if and to the extent such option is exercised, the Additional Notes are hereinafter collectively referred to as the
"Notes."
The
Notes will be issued under an indenture to be dated as of November 8, 2021 (the "Base Indenture"), as supplemented
by the First Supplemental Indenture to be dated as of November 8, 2021 (the "First Supplemental Indenture" and,
together with the Base Indenture, the "Indenture"), between the Company and The Bank of New York Mellon Trust Company,
N.A., as trustee (the "Trustee"). The Notes will be issued to Cede & Co., as nominee of the Depository Trust
Company ("DTC") pursuant to a blanket letter of representations (the "DTC Agreement") to be dated on
or prior to the Closing Date (as defined herein), between the Company and DTC. The Indenture will be qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
The Company and the Underwriters
agree as follows:
1. The
Offering. Upon the basis of the representations and warranties and subject to the terms
and conditions herein set forth, the Company agrees to issue and sell to the Underwriters, severally and not jointly, the aggregate principal
amount of Firm Notes set forth opposite the name of such Underwriter on Schedule A, and each of the Underwriters, severally and
not jointly, agrees to purchase from the Company at the price (the "Purchase Price") set forth in Schedule B
hereto, the aggregate principal amount of Firm Notes set forth opposite the name of such Underwriter on Schedule A hereto subject
to adjustment in accordance with Section 7 hereof.
In
addition, the Company hereby grants to the several Underwriters the option to purchase and, upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase, severally and
not jointly, from the Company, ratably in accordance with the number of Firm Notes to be purchased by each of them, all or a portion of
the Additional Notes, at the same Purchase Price to be paid by the Underwriters for the Firm Notes (without giving effect to any accrued
interest from the Closing Date to the Additional Closing Date (as defined below)). This option may be exercised by the Representative
on behalf of the several Underwriters at any time and from time to time in whole or in part by written notice from the Representative
to the Company, which notice may be given at any time within 30 days from the date of this Agreement. Such notice shall set forth (i) the
aggregate principal amount of Additional Notes as to which the option is being exercised and (ii) the date, time and place at which
such Additional Notes are to be delivered (such date, the "Additional Closing Date" and such time of such date, the "Additional
Time of Purchase"); provided, however, that the Additional Time of Purchase may be simultaneous with, but shall
not be earlier than the Time of Purchase (as defined below) and shall not be earlier than two nor later than five full business days after
delivery of such notice of exercise. The aggregate principal amount of Additional Notes to be sold to each Underwriter shall be the aggregate
principal amount which bears the same proportion to the total aggregate principal amount of Additional Notes being purchased as the principal
amount of Firm Notes set forth opposite the name of such Underwriter on Schedule A hereto bears to the total aggregate principal
amount of Firm Notes, subject to adjustment in accordance with Section 7 hereof. The Representative may cancel the option
at any time prior to its expiration by giving written notice of such cancellation to the Company.
2. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with,
the Underwriters that:
(a) The
Company has prepared and filed in conformity with the requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and published rules and regulations thereunder (the "Rules and Regulations") adopted by the
Securities and Exchange Commission (the "Commission") a shelf registration statement on Form S-3 (File No. 333-259352),
which was declared effective by the Commission on September 30, 2021 (the "Effective Date"), including a base prospectus
relating to the securities registered pursuant to such Registration Statement (the "Base Prospectus"), and such amendments
and supplements thereto as may have been required to the date of this Agreement. The term "Registration Statement" as
used in this Agreement means the registration statement (including all exhibits, financial schedules and all documents and information
deemed to be a part of the Registration Statement pursuant to Rule 430B of the Rules and Regulations), as amended and/or supplemented
to the date of this Agreement, including the Base Prospectus. The Registration Statement is effective under the Securities Act, and no
stop order preventing or suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceedings
for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. The Company has prepared
a prospectus supplement to the Base Prospectus included as part of such shelf registration statement specifically relating to the Notes
(the "Prospectus Supplement") and has or will file such Prospectus Supplement with the Commission pursuant to Rule 424(b) of
the Rules and Regulations. The term "Prospectus" as used in this Agreement means the Base Prospectus, as it may
be supplemented by the Prospectus Supplement, in the forms in which such Base Prospectus or Prospectus Supplement has been or is to be
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, except that if any revised prospectus or
prospectus supplement shall be provided to the Underwriters by the Company for use in connection with the offering and sale of the Notes
(the "Offering") which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term "Prospectus"
shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the
Underwriters for such use. Any reference herein to the Registration Statement or the 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 Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the last to occur of the Effective Date, or the date of the Prospectus,
and any reference herein to the terms "amend," "amendment," or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include (i) the filing of any document under the Exchange Act after the
Effective Date or the date of the Prospectus, as the case may be, which is incorporated by reference into the Registration Statement or
Prospectus and (ii) any such document so filed. If the Company files an abbreviated registration statement to register additional
securities pursuant to Rule 462(b) under the Rules and Regulations (the "462(b) Registration
Statement"), any reference herein to the Registration Statement shall also be deemed to include such 462(b) Registration
Statement.
(b) As
of the Applicable Time (as defined below) and as of the Time of Purchase and any Additional Time of Purchase, as the case may be, none
of (i) any General Use Free Writing Prospectus (as defined below) issued at or prior to the Applicable Time, and the Pricing Prospectus
(as defined below), all considered together (collectively, the "General Disclosure Package"), (ii) any individual
Limited Use Free Writing Prospectus (as defined below) issued at or prior to the Time of Purchase and any Additional Time of Purchase,
as the case may be, or (iii) the bona fide electronic road show, if any (as defined in Rule 433(h)(5) of the Rules and
Regulations), that has been made available without restriction to any person, when considered together with the General Disclosure Package,
included or will include any untrue statement of a material fact or omitted, or as of the Time of Purchase and any Additional Time of
Purchase, as the case may be, will omit to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the General Disclosure Package, any individual Limited Use Free Writing Prospectus
or the bona fide electronic road show, if any, in reliance upon, and in conformity with, written information furnished to the Company
by or on behalf of the Underwriters specifically for inclusion therein, which information the parties hereto agree is limited to the "Underwriter's
Information" which is defined as the information set forth in Section 15. As used in this Section 2(b) and
elsewhere in this Agreement:
"Applicable
Time" means 4:30 P.M., New York time, on the date of this Agreement.
"General
Use Free Writing Prospectus" means any Issuer Free Writing Prospectus identified on Schedule C to this Agreement.
"Issuer
Free Writing Prospectus" means any "issuer free writing prospectus," as defined in Rule 433 of the Rules and
Regulations relating to the Notes in the form filed or required to be filed with the Commission or, if not required to be filed, in the
form retained in the Company's records pursuant to Rule 433(g) of the Rules and Regulations.
"Limited
Use Free Writing Prospectuses" means any Issuer Free Writing Prospectus that is not a General Use Free Writing Prospectus.
"Pricing
Prospectus" means the Base Prospectus as amended and supplemented immediately prior to the Applicable Time, including any document
incorporated by reference therein and any prospectus supplement deemed to be a part thereof.
(c) No
stop order preventing or suspending the use of any Issuer Free Writing Prospectus or the Prospectus relating to the Offering has been
issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been instituted
or, to the knowledge of the Company, is threatened by the Commission.
(d) At
the time the Registration Statement became effective, at the Applicable Time and at the Time of Purchase and any Additional Time of Purchase,
as the case may be, the Registration Statement conformed and will conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations and 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 to make the statements therein not misleading; the Prospectus, at the time of first use
and at the Time of Purchase and any Additional Time of Purchase, as the case may be, conformed and will conform in all material respects
to the requirements of the Securities Act and the Rules and Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the foregoing representations and warranties in this Section 2(d) shall
not apply to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon, and in conformity
with, the Underwriter's Information.
(e) Each
Issuer Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and
sale of the Notes or until any earlier date that the Company notified or notifies the Representative as described in Section 4(c),
did not, does not and will not include (i) any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement, Pricing Prospectus or the Prospectus, including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof that has not been superseded or modified, or (ii) an untrue statement of a material
fact or omitted or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus in reliance upon, and in conformity with, the Underwriter's Information.
(f) The
documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, the Rules and
Regulations and the rules and regulations of the Commission under the Exchange Act, and none of such documents contained any untrue
statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus, 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 Securities Act or the Exchange Act, as applicable, the Rules and Regulations
and the rules and regulations of the Commission under the Exchange Act 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 to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(g) The
Company is not an "ineligible issuer" in connection with the Offering pursuant to Rules 164, 405 and 433 under the Securities
Act. The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection with the Offering
other than the Registration Statement, the Pricing Prospectus, the Prospectus, any General Use Free Writing Prospectuses and any Limited
Use Free Writing Prospectuses reviewed and consented to by the Representative (which consent shall not be unreasonably withheld). The
Company will file with the Commission all Issuer Free Writing Prospectuses (other than a "road show," as defined in Rule 433(d)(8) of
the Rules and Regulations), if any, in the time and manner required under Rules 163(b)(2) and 433(d) of the Rules and
Regulations.
(h) Each
of the Company and its Subsidiaries has been duly organized and is validly existing as a corporation or other legal entity in good standing
(or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation or organization. Each of the Company and its Subsidiaries
is duly qualified to do business and is in good standing as a foreign corporation or other legal entity in each jurisdiction in which
its ownership or lease of its properties or the conduct of its business requires such qualification and has all power and authority (corporate
or other) necessary to own or hold its properties and to conduct the businesses in which each is engaged, except where the failure to
so qualify or have such power or authority would not (i) have, singularly or in the aggregate, a material adverse effect on the condition
(financial or otherwise), results of operations, assets, or business of the Company and its Subsidiaries, taken as a whole, or (ii) impair
in any material respect the ability of the Company to perform its obligations under this Agreement or to consummate any transactions contemplated
by this Agreement, the General Disclosure Package, or the Prospectus (any such effect as described in clauses (i) or (ii), a "Material
Adverse Effect"). "Subsidiary" means any significant subsidiary of the Company as defined in Rule 405 under
the Securities Act.
(i) The
Company has the necessary power and authority to (i) execute and deliver this Agreement, the Base Indenture, the First Supplemental
Indenture, the Notes and the DTC Agreement and (ii) perform its obligations under this Agreement, the Indenture, the Notes and the
DTC Agreement.
(j) This
Agreement has been duly authorized, executed and delivered by the Company.
(k) Each
of the Indenture, the Base Indenture and the First Supplemental Indenture has been duly authorized by the Company and, as of the Closing
Date, each of the Base Indenture and First Supplemental Indenture will be duly executed and delivered by the Company and, assuming the
Base Indenture and the First Supplemental Indenture have been executed and delivered by the Trustee, the Indenture will constitute a valid
and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof
may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect
relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or law).
(l) The
DTC Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement thereof may be subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforcement is considered in a proceeding in equity or law).
(m) The
Notes have been duly authorized for sale to the Underwriters pursuant to this Agreement and, when executed and delivered by the Company
and authenticated by the Trustee pursuant to the provisions of this Agreement and of the Indenture relating thereto, against payment of
the consideration set forth in this Agreement, will be valid and legally binding obligations of the Company enforceable in accordance
with their terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter
in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or law), and will be entitled to the benefits of the Indenture relating thereto.
(n) The
Notes and the Indenture conform in all material respects to the statements relating thereto contained in the General Disclosure Package
and the Prospectus; and other than as contemplated in the General Disclosure Package and the Prospectus, none of the Company or any of
its Subsidiaries has issued any debt securities or entered into any agreement or arrangement relating to the issuance of any debt securities.
(o) All
issued and outstanding shares of capital stock of the Company outstanding prior to the issuance of the Firm Notes have been duly authorized
and are validly issued, fully paid and non-assessable and were issued in compliance in all material respects with United States federal
and applicable state securities laws. All of the Company's options, warrants and other rights to purchase or exchange any securities for
shares of the Company's capital stock have been duly authorized and validly issued and were issued in compliance in all material respects
with United States federal and applicable state securities laws. None of the outstanding shares of capital stock of the Company were issued
in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the
Company.
(p) The
membership interests, capital stock, partnership interests or other similar equity interests, as applicable, of each Subsidiary, have
been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the General Disclosure
Package, are owned by the Company directly, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting
or transfer or any other claim of any third party.
(q) None
of (1) the execution and delivery of this Agreement, the Base Indenture and the First Supplemental Indenture and the performance
of this Agreement and the Indenture by the Company and (2) the issuance and sale of the Notes by the Company (with or without notice
or lapse of time or both) (x) conflicts with or results in a breach or violation of any of the terms or provisions of, constitutes
a default under, gives rise to any right of termination or other right or the cancellation or acceleration of any right or obligation
or loss of a benefit under or pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of
the property or assets of the Company or any of its Subsidiaries is subject, (y) results in any violation of the provisions of the
certificate of incorporation or bylaws (or analogous governing instruments, as applicable) of the Company or any of its Subsidiaries,
or (z) results in any violation of provisions of any law, statute, rule, regulation, judgment, order or decree of any court or governmental
agency or body, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets;
except, with respect to clauses (x) or (z), any contravention which would not have a Material Adverse Effect.
(r) No
consent, approval, authorization or order of, or qualification with, any governmental body or agency or self-regulatory authority is
required for the performance by the Company of its obligations under this Agreement, the Indenture, the DTC Agreement and the Notes,
except as have been obtained or as may be required by (1) the securities or Blue Sky laws of the various states, (2) the bylaws,
rules and regulations of FINRA or The Nasdaq Stock Market LLC ("Nasdaq") or (3) any necessary qualification
under the Trust Indenture Act, in connection with the offer and sale of the Notes.
(s) Deloitte &
Touche LLP, who has audited certain financial statements of the Company and related schedules included or incorporated by reference in
the Registration Statement, the General Disclosure Package and the Prospectus, is an independent registered public accounting firm with
respect to the Company as required by the Securities Act and the Rules and Regulations and the Public Company Accounting Oversight
Board (United States).
(t) The
Company and its Subsidiaries do not have any liabilities or obligations, direct or contingent (including any off-balance sheet obligations
or any "variable interest entities" within the meaning of the Financial Accounting Standards Board's Accounting Standards Codification
Topic 810), which are not disclosed in the General Disclosure Package, the Prospectus and the Registration Statement, except for those
that would not have a Material Adverse Effect.
(u) Since
the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the
General Disclosure Package or the Prospectus, there has not occurred any event or circumstance that has had or would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect.
(v) There
is no legal or governmental proceeding, action, suit or claim pending or, to the Company's knowledge, threatened, to which the Company
or any of its Subsidiaries is a party, or to which any of the properties or assets of the Company or any of its Subsidiaries is subject,
(i) other than proceedings accurately described in all material respects in the General Disclosure Package or proceedings that would
not have a Material Adverse Effect, or (ii) that are required to be described in the Registration Statement, the General Disclosure
Package or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents to which the
Company or any of its Subsidiaries is subject or by which the Company or any of its Subsidiaries is bound that are required to be described
in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(w) The
Company is not, and after giving effect to the Offering and the application of the proceeds thereof as described in the General Disclosure
Package and the Prospectus, will not become an "investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission thereunder.
(x) Except
to the extent expressly set forth in the General Disclosure Package as part of the offering contemplated hereby, neither the Company,
its Subsidiaries nor any of the Company's or its Subsidiaries' officers, directors or affiliates has bid for or purchased, for any account
in which it or any of its affiliated purchasers has a beneficial interest, any Notes, or attempted to induce any person to purchase any
Notes; and has not, and has not caused its affiliated purchasers to, make bids or purchase for the purpose of creating actual, or apparent,
active trading in or of raising the price of the Notes.
(y) The
Company and its Subsidiaries have good and marketable title to all real and personal property owned by them which is material to the business
of the Company and its Subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects of title except
such as are described in the General Disclosure Package or would not individually or in the aggregate have a Material Adverse Effect;
and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and
enforceable leases except such as are described in the General Disclosure Package or would not have a Material Adverse Effect.
(z) Except
as disclosed in the General Disclosure Package, neither the Company nor any of its Subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court, relating to the use, disposal or release of hazardous
or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances
(collectively, "Environmental Laws"), operates any real property contaminated with any substance that is subject to
any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any
claim relating to any Environmental Laws, which violation, contamination, liability or claim would individually or in the aggregate have
a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim.
(aa) Except
as described in the General Disclosure Package, the Company and its Subsidiaries own or possess, or have the right to use, adequate trademarks,
trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively,
"Intellectual Property Rights") necessary to conduct the business now operated by them, or presently employed by them,
and have not received any notice of infringement of or conflict with asserted rights of others against the Company with respect to any
Intellectual Property Rights, except such as will not individually or in the aggregate have a Material Adverse Effect.
(bb) Each
of the Company and its Subsidiaries maintains a system of internal accounting and other controls (A) sufficient to provide reasonable
assurances 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 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 existing assets at reasonable intervals and appropriate action is taken with respect to any
differences and (B) which are effective in all material respects to perform the functions for which they were established. Except
as described in the General Disclosure Package, since the end of the Company's most recent audited fiscal year, there has been (A) no
material weakness in the Company's internal control over financial reporting (whether or not remediated), (B) no change in the Company's
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company's internal
control over financial reporting, and (C) no fraud, whether or not material, that involves management or other employees who have
a significant role in the Company's internal control over financial reporting.
(cc) No
relationship, direct or indirect, exists between or among the Company and any of its Subsidiaries, on the one hand, and the directors,
officers, stockholders (or analogous interest holders), customers or suppliers of the Company or any of its Subsidiaries or any of their
affiliates, on the other hand, which is required to be described in the General Disclosure Package or the Prospectus or a document incorporated
by reference therein and which is not so described.
(dd) Neither
the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any of its directors, officers, agents, employees, affiliates
or other person acting on their behalf is aware of or has taken any action, directly or indirectly, that has violated or would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the "FCPA"), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise
to give, or authorization of the giving of anything of value to any "foreign official" (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA. The Company
and its Subsidiaries have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(ee) 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 money laundering statutes of
all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines,
issued, administered or enforced by any governmental agency having jurisdiction over the Company (collectively, the "Money Laundering
Laws") and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ff) Neither
the Company nor any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department ("OFAC"); and the Company will not directly or indirectly use the proceeds of this Offering,
or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(gg) No
person or entity has the right to require registration of any securities of the Company or any of its Subsidiaries under the Securities
Act because of the filing or effectiveness of the Registration Statement, except as set forth therein or in the General Disclosure Package.
(hh) Neither
the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement)
that would give rise to a valid claim against the Company or the Underwriters for a brokerage commission, finder's fee or like payment
in connection with the Offering or any transaction contemplated by this Agreement, the Registration Statement, the General Disclosure
Package or the Prospectus.
(ii) No
forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained
in either the General Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(jj) The
Company is subject to, and in compliance in all material respects with, the reporting requirements of Section 13 or Section 15(d) of
the Exchange Act. As of the filing date of the Registration Statement and as of any update of the Registration Statement pursuant to Section 10(a)(3) of
the Securities Act (including the filing of any Annual Report on Form 10-K), the Company was eligible to file a "shelf"
Registration Statement on Form S-3 with the Commission.
(kk) The
Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and all applicable
rules and regulations promulgated thereunder or is implementing the provisions thereof that are currently in effect.
(ll) The
statistical and market-related data included in the General Disclosure Package are based on or derived from sources that the Company
believes to be reliable and accurate, and such data agree in all material respects with the sources from which they are derived.
(mm) Except
as otherwise disclosed in the General Disclosure Package, each of the Company and its Subsidiaries possess such valid and current certificates,
authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their
respective businesses, and neither the Company nor any Subsidiary of the Company has received, or has any reason to believe that it will
receive, any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization
or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could result in a Material
Adverse Effect.
(nn) Each
of the Company and its Subsidiaries have filed all material federal, state and foreign income and franchise tax returns or have properly
requested extensions thereof and have paid all material taxes required to be paid by any of them and, if due and payable, any related
or similar assessment, fine or penalty levied against any of them except as may be being contested in good faith and by appropriate proceedings.
(oo) Except
as set forth in the General Disclosure Package, neither the Company nor any Subsidiary directly or indirectly controls, is controlled
by, or is under common control with, or is an associated person (within the meaning of Article I, Section 1(ee) of the By-laws
of FINRA) of, any member firm of FINRA.
(pp) No
approval of the stockholders of the Company under the rules and regulations of Nasdaq is required for the Company to issue and deliver
the Notes.
(qq) Except
as described in the General Disclosure Package, the Company has not sold, issued or distributed any securities of the Company during the
six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities
Act, other than shares of Common Stock issued pursuant to employee benefit plans, qualified equity compensation plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.
(rr) Except
as otherwise disclosed in the General Disclosure Package, each of the Company and its Subsidiaries maintains insurance issued by nationally
recognized insurers covering their respective properties, operations, personnel and businesses, with policies in such amounts and with
such deductibles and covering such risks as the Company reasonably deems adequate for the conduct of their business as currently conducted.
(ss) The
Company nor, to the Company's knowledge, any of its respective directors, officers or affiliates has not taken, directly or indirectly,
any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any "reference
security" (as defined in Rule 100 of Regulation M under the 1934 Act ("Regulation M")), whether to facilitate
the sale or resale of the Notes or otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(tt) The
Company has not distributed and will not distribute, prior to the later of (i) the expiration or termination of the option granted
to the Underwriters in Section 1 and (ii) the completion of distribution of the Notes, any offering material in connection
with the offering and sale of the Notes other than a preliminary prospectus, the Pricing Prospectus, the Prospectus, any free writing
prospectus reviewed and consented to by the Representative, or the Registration Statement.
(uu) Any
certificate signed by or on behalf of the Company and delivered to the Representative or to counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
3. The
Closing.
(a) Payment
of the purchase price for the Firm Notes shall be made to the Company by Federal Funds wire transfer against delivery of such Firm Notes
to or as designated by the Representative through the facilities of DTC for the respective accounts of the Underwriters. Such payment
and delivery shall be made at 10:00 A.M., New York time, on November 8, 2021 (such date, the "Closing Date"). The
time at which such payment and delivery are to be made is hereinafter sometimes called the "Time of Purchase." Electronic
transfer of the Firm Notes shall be made at the Time of Purchase in such names and in such denominations as the Representative shall specify.
(b) Payment
of the purchase price for the Additional Notes shall be made at the Additional Time of Purchase in the same manner and at the same office
and time of day as the payment for the Firm Notes. Electronic transfer of the Additional Notes shall be made at the Additional Time of
Purchase in such names and in such denominations as the Representative shall specify.
(c) Delivery
of the documents required to be delivered to the Underwriters pursuant to Sections 4 and 6 hereof shall be made electronically
at 10:00 A.M., New York time, on the Closing Date or the Additional Closing Date, as the case may be.
4. Further
Covenants and Agreements of the Company.
The Company covenants and
agrees with the Underwriters as follows:
(a) To
prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representative, and file such Rule 462(b) Registration
Statement with the Commission on the date hereof; to prepare the Prospectus in a form approved by the Representative, containing information
previously omitted at the time of effectiveness of the Registration Statement in reliance on rules 430A, 430B and 430C and to file
such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A of the Rules and
Regulations; to notify the Representative promptly of the Company's intention to file or prepare any supplement or amendment to any Registration
Statement or to the Prospectus in connection with this Offering and to provide a draft of any such amendment or supplement to the Registration
Statement, the General Disclosure Package or the Prospectus to the Representative, for review within an amount of time that is reasonably
practical under the circumstances and prior to filing, and to file no such amendment or supplement to which the Representative shall have
reasonably objected in writing; to advise the Representative, promptly after it receives notice thereof, of the time when any amendment
to any Registration Statement has been filed in connection with the Offering or becomes effective or any supplement to the General Disclosure
Package or the Prospectus or any amended Prospectus has been filed and to furnish the Representative with copies thereof; to file within
the time periods prescribed by the Exchange Act, including any extension thereof, all material required to be filed by the Company with
the Commission pursuant to Rule 433(d) or 163(b)(2), as the case may be; to advise the Representative, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Issuer Free
Writing Prospectus or the Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement, the General Disclosure Package or the Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of any Issuer Free Writing Prospectus or the Prospectus or
suspending any such qualification, and promptly to use its commercially reasonable efforts to obtain the withdrawal of such order.
(b) To
prepare a final term sheet for the Notes, containing solely a description of final terms of the Notes and the offering thereof, in the
form approved by you and attached as Schedule D hereto and to file such term sheet pursuant to, and within the time required by,
Rule 433(d).
(c) That,
unless it obtains the prior consent of the Representative, it has not made and will not make any offer relating to the Notes that would
constitute a "free writing prospectus" as defined in Rule 405 of the Rules and Regulations unless the prior written
consent of the Representative has been received (each, a "Permitted Free Writing Prospectus"), other than a free writing
prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(b) hereof;
provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Free Writing Prospectuses
included in Schedule C hereto and any electronic road show, if any. The Company shall furnish to the Representative, a reasonable
amount of time prior to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or
supplement thereto to be prepared by or on behalf of, used by, or referred to by the Company. The Company represents that it has treated
and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and that it has and will comply
with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including
the requirements relating to timely filing with the Commission, legending and record keeping.
(d) If
at any time when a Prospectus relating to the Notes is required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading, or the Registration Statement, as then amended or supplemented, would include any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein not misleading, or if for any other reason it is necessary at
any time to amend or supplement any Registration Statement or the Prospectus to comply with the Securities Act or the Exchange Act, the
Company will promptly notify the Representative, and upon the Representative's request, the Company will promptly prepare and file with
the Commission, at the Company's expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance. The Company consents to the use of the Prospectus or any amendment or
supplement thereto by the Underwriters.
(e) To
the extent not available on the Commission's EDGAR system, to make generally available to its security holders as soon as practicable,
but in any event not later than eighteen (18) months after the effective date of each Registration Statement (as defined in Rule 158(c) of
the Rules and Regulations), an earnings statement of the Company and its consolidated Subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(f) To
take promptly from time to time such actions as the Representative may reasonably request to qualify the Notes for offering and sale under
the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Representative may designate and to continue such qualifications
in effect, and to comply with such laws, for so long as required to permit the offer and sale of Notes in such jurisdictions; provided
that the Company and its Subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are
not so qualified or to file a general consent to service of process in any jurisdiction or to subject itself to taxation for doing business
in any jurisdiction in which it was not otherwise subject to taxation.
(g) To
supply the Underwriters with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection
with the registration of the Notes under the Securities Act or the Registration Statement or the Prospectus, or any amendment or supplement
thereto or document incorporated by reference therein.
(h) Prior
to the Time of Purchase and the Additional Time of Purchase, if any, not to issue any press release or other communication directly or
indirectly or hold any press conference (other than (i) the Company's customary quarterly press release and conference call or (ii) routine
oral marketing communications in the ordinary course of business and consistent with the past practices of the Company) without the prior
written consent of the Representative (which consent shall not be unreasonably withheld), unless in the judgment of the Company and its
counsel, and after notification to the Representative, such press release or communication is required by law or applicable stock exchange
rules.
(i) Until
the Representative shall have notified the Company of the completion of the Offering, that the Company will not, and will cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, and except to the
extent expressly set forth in the General Disclosure Package as part of the Offering contemplated hereby, bid for or purchase, for any
account in which it or any of its affiliated purchasers has a beneficial interest, any Notes, or attempt to induce any person to purchase
any Notes; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent,
active trading in or of raising the price of the Notes.
(j) To
apply the net proceeds from the sale of the Notes as set forth in the Registration Statement, the General Disclosure Package and the Prospectus
under the heading "Use of Proceeds."
(k) Not
to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree
to dispose of, directly or indirectly, any debt securities issued or guaranteed by the Company or any securities convertible into or exchangeable
or exercisable for debt securities issued or guaranteed by the Company or file or cause to be declared effective a registration statement
under the Securities Act with respect to any of the foregoing for a period of thirty (30) days after the date hereof without the prior
written consent of the Representative, which may not be unreasonably withheld. The foregoing sentence shall not apply to the registration
of the Notes and the sales to the Underwriters pursuant to this Agreement.
(l) To
cooperate with the Representative and use its commercially reasonable efforts to permit the Notes to be eligible for clearance and settlement
through the facilities of DTC.
(m) To
use its reasonable best efforts to (i) list, subject to notice of issuance, the Notes on Nasdaq and (ii) maintain the listing
of the Notes on Nasdaq.
(n) Until
the Representative shall have notified the Company of the completion of the offering of the Notes, the Company will not take directly
or indirectly any action designed, or that might reasonably be expected to cause or result in, or that will constitute, stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Notes.
(o) To
use its reasonable best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior
to the Time of Purchase or the Additional Time of Purchase, as applicable and to satisfy all conditions precedent to the delivery of the
Notes to be delivered at such time.
5. Payment
of Expenses.
The Company agrees to pay,
or reimburse if paid by the Underwriters, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated
(unless this Agreement is terminated pursuant to Section 7 hereof): (a) the costs incident to the authorization, issuance,
sale and delivery of the Notes to the Underwriters and any taxes payable in that connection; (b) the costs incident to the registration
of the Notes under the Securities Act; (c) the costs incident to the preparation, printing and distribution of the Registration Statement,
the Base Prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package, the Prospectus, any amendments, supplements and
exhibits thereto or any document incorporated by reference therein; (d) all costs and expenses incident to listing the Notes on Nasdaq;
(e) the fees and expenses of the Trustee and any transfer agent, registrar or depository with respect to the Notes; (f) the
expenses and application fees incurred in connection with the approval of the Notes for book-entry transfer by DTC; (g) the reasonable
fees and disbursements of outside legal counsel to the Underwriters in an aggregate amount not to exceed $100,000 and (h) all other
costs and expenses of the Company incident to the offering of the Notes by, or the performance of the obligations of, the Company under
this Agreement (including, without limitation, the fees and expenses of the Company's counsel and the Company's independent accountants
and the travel and other reasonable expenses incurred by Company personnel in connection with any "road show").
6. Conditions
to the Obligations of the Underwriters, and the Sale of the Notes. The obligations of the
Underwriters hereunder, and the closing of the sale of the Notes, are subject to the accuracy, when made and as of the Applicable Time
and at the Time of Purchase or the Additional Time of Purchase, as the case may be, of the representations and warranties of the Company
contained herein (except for inaccuracies that would not result in a Material Adverse Effect), to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the performance by the Company, in all material respects, of its
obligations hereunder, and to each of the following additional terms and conditions:
(a) No
stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for
that purpose or pursuant to Section 8A under the Securities Act shall have been initiated by the Commission, and all requests for
additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the
Prospectus or otherwise) shall have been complied with; the Rule 462(b) Registration Statement, if any, each Issuer Free Writing
Prospectus, if any, and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such
filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a), and the Rule 462(b) Registration
Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection
to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) The
Registration Statement or any amendment or supplement thereto shall not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading, and none of the General Disclosure
Package, any Issuer Free Writing Prospectus or the Prospectus, or any amendment or supplement thereto, shall contain an 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
in which they were made, not misleading.
(c) The
Company shall have furnished to the Representative a certificate, dated the Closing Date or the Additional Closing Date, as the case may
be, of its Chief Operating Officer and Chief Financial Officer stating that (i) since the effective date of the Registration Statement,
no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the General Disclosure
Package or the Prospectus, (ii) to the best of such officer's knowledge, as of such date, the representations and warranties of the
Company in this Agreement are true and correct, except for inaccuracies that would not result in a Material Adverse Effect, and the Company
has complied, in all material respects, with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such date, and (ii) there has not been, subsequent to the date of the most recent audited financial statements included
or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations
of the Company and its Subsidiaries, taken as a whole, or any change or development that, individually or in the aggregate, would reasonably
be expected to involve a material adverse change in or affecting the condition (financial or otherwise), results of operations, business
or assets of the Company and its Subsidiaries, taken as a whole, except as set forth in the Prospectus.
(d) Since
the date of the latest audited financial statements with respect to the Company and its Subsidiaries included in the General Disclosure
Package or incorporated by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor any of
its Subsidiaries shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in
the General Disclosure Package, and (ii) there shall not have been any change in the capital stock of the Company or any change in
the long-term debt of the Company and its Subsidiaries, taken as a whole, or any change or any development in or affecting the business,
general affairs, management, financial position, stockholders' equity or results of operations of the Company and its Subsidiaries, taken
as a whole, otherwise than as set forth in the General Disclosure Package, the effect of which, in any such case described in clause (i) or
(ii) of this Section 6(d), would result in a Material Adverse Effect.
(e) No
action shall have been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would prevent the issuance or sale of the Notes or result in a Material Adverse Effect; and no injunction, restraining
order or order of any other nature by any United States federal or state court of competent jurisdiction shall have been issued which
would prevent the issuance or sale of the Notes or result in a Material Adverse Effect.
(f) Subsequent
to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally
on the New York Stock Exchange or Nasdaq, or trading in any securities of the Company on any exchange or in the over-the-counter market,
shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established
on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority
having jurisdiction; (ii) a banking moratorium shall have been declared by United States federal or state authorities or a material
disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (iii) the United
States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation
in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States,
in each case as to make it, in the reasonable judgment of the Representative, impracticable or inadvisable to proceed with the sale or
delivery of the Notes on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus; (iv) if there
has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries, considered
as one enterprise, whether or not arising in the ordinary course of business, or (v) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the reasonable judgment of the Representative, impracticable or inadvisable to proceed
with the sale or delivery of the Notes on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(g) The
Underwriters shall have received an opinion and negative assurance letter of Akin Gump Strauss Hauer & Feld LLP, counsel for
the Company, dated the Closing Date or the Additional Closing Date, as the case may be, covering such matters as the Underwriters shall
reasonably request.
(h) The
Underwriters shall have received the favorable opinion of Duane Morris LLP, counsel for the Underwriters, dated the Closing Date or the
Additional Closing Date, as the case may be, and covering such matters as the Underwriters shall reasonably request.
(i) The
Underwriters shall have received from Deloitte & Touche LLP letters dated, respectively, the date hereof, the Closing Date and,
if applicable, the Additional Closing Date, in form and substance satisfactory to the Representative containing statements and information
of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the General Disclosure Package, the Prospectus and the Registration Statement.
(j) The
Notes shall have been approved for listing on Nasdaq.
(k) The
Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably require
for the purpose of enabling the Underwriters to pass upon the issuance and sale of the Notes as herein contemplated.
(l) The
Company and the Trustee shall have executed and delivered the Base Indenture, the First Supplemental Indenture and the Notes.
If
any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may
be terminated in the absolute discretion of the Representative by notice to the Company at any time on or prior to the Closing Date and,
with respect to the Additional Notes, at any time on or prior to the applicable Additional Closing Date, which termination shall be without
liability on the part of any party to any other party (except to the extent provided in Section 8 hereof), except that Sections
5, 6, 8 and 9 shall at all times be effective and shall survive such termination.
7. Increase
in Underwriters' Commitments.
Subject
to Section 6 hereof, if any Underwriter shall default in its obligation to take up and pay for the Firm Notes to be
purchased by it hereunder (otherwise than for a failure of a condition set forth in Section 6 hereof) and if the aggregate
principal amount of Firm Notes which all Underwriters so defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total aggregate principal amount of Firm Notes, the non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate principal amount of Firm Notes they are obligated to purchase pursuant to Section 1 hereof) the aggregate principal
amount of Firm Notes agreed to be purchased by all such defaulting Underwriters, as hereinafter provided. Such Notes shall be taken up
and paid for by such non-defaulting Underwriters in such amount or amounts as the Representative may designate with the consent of each
Underwriter so designated or, in the event no such designation is made, such Notes shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of Firm Notes set opposite the names of such non-defaulting Underwriters
in Schedule A.
Without relieving any defaulting
Underwriter from its obligations hereunder, the Company agrees with the non-defaulting Underwriters that it will not sell any Firm Notes
hereunder unless all of the Firm Notes are purchased by the Underwriters (or by substituted Underwriters selected by the Representative
with the approval of the Company or selected by the Company with the Representative's approval).
If a new Underwriter is or
Underwriters are substituted by the Representative or by the Company for a defaulting Underwriter or Underwriters in accordance with the
foregoing provision, the Company or the Representative shall have the right to postpone the time of purchase for a period not exceeding
five business days in order that any necessary changes in the General Disclosure Package and other documents that may be effected.
The
term "Underwriter" as used in this Agreement shall refer to and include any Underwriter substituted under this Section 7
with like effect as if such substituted Underwriter had originally been named in Schedule A.
If
the aggregate principal amount of Firm Notes which the defaulting Underwriter or Underwriters agreed to purchase exceeds 10% of the total
aggregate principal amount of Firm Notes which all Underwriters agreed to purchase hereunder, and if neither the non-defaulting Underwriters
nor the Company shall make arrangements within the five business day-period stated above for the purchase of all the Firm Notes which
the defaulting Underwriter or Underwriters agreed to purchase hereunder, then this Agreement shall terminate without further act or deed
and without any liability on the part of the Company to any non-defaulting Underwriter (except as provided in Section 8)
and without any liability on the part of any non-defaulting Underwriter to the Company. Nothing in this paragraph, and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
8. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, its respective affiliates and each of their respective directors, officers,
members, employees, representatives and agents and their respective affiliates, and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the "Underwriter
Indemnified Parties," and each, an "Underwriter Indemnified Party") against any loss, claim, damage, expense
or liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such Underwriter Indemnified
Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation
or proceeding arises out of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in
any Issuer Free Writing Prospectus, any "issuer information" filed or required to be filed pursuant to Rule 433(d) of
the Rules and Regulations, any Registration Statement or the Prospectus, or in any amendment or supplement thereto or document incorporated
by reference therein, or (B) the omission or alleged omission to state in any Issuer Free Writing Prospectus, any "issuer information"
filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus,
or in any amendment or supplement thereto or document incorporated by reference therein, a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse the Underwriter Indemnified Party promptly upon demand
for any legal fees or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating, or preparing
to defend, or defending against, or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such
loss, claim, damage, expense, liability, action, investigation or proceeding, as such fees and expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense or liability
arises out of or is based upon an untrue statement or alleged untrue statement in, or omission or alleged omission from, any Registration
Statement or the Prospectus, or any such amendment or supplement thereto, any road show, or any Issuer Free Writing Prospectus made in
reliance upon and in conformity with written information concerning the Underwriters furnished to the Company by or on behalf of the Underwriters
specifically for use therein, which information the parties hereto agree is limited to the Underwriter's Information. This indemnity agreement
is not exclusive and will be in addition to any liability, which the Company may otherwise have and shall not limit any rights or remedies
which may otherwise be available at law or in equity to each Underwriter Indemnified Party.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the Company and its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (collectively the "Company Indemnified Parties" and each a "Company Indemnified
Party") against any loss, claim, damage, expense or liability whatsoever (or any action, investigation or proceeding in respect
thereof), joint or several, to which such Company Indemnified Party may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, expense, liability, action, investigation or proceeding arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, any "issuer information"
filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, any Registration Statement or the Prospectus,
or in any amendment or supplement thereto, or (ii) the omission or alleged omission to state in any Issuer Free Writing Prospectus,
any "issuer information" filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations,
any Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company
by or on behalf of such Underwriter specifically for use therein, which information the parties hereto agree is limited to the Underwriter's
Information, and shall reimburse the Company Indemnified Parties for any legal or other expenses reasonably incurred by such party in
connection with investigating or preparing to defend or defending against or appearing as third party witness in connection with any such
loss, claim, damage, liability, action, investigation or proceeding, as such fees and expenses are incurred. This indemnity agreement
is not exclusive and will be in addition to any liability which such Underwriter might otherwise have and shall not limit any rights or
remedies which may otherwise be available under this Agreement, at law or in equity to the Company Indemnified Parties.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify such indemnifying
party in writing of the commencement of that action; provided, however, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to notify an indemnifying party shall not relieve it
from any liability which it may have to an indemnified party otherwise than under this Section 8. If any such action shall
be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the
defense of such action with counsel reasonably satisfactory to the indemnified party (which counsel shall not, except with the written
consent of the indemnified party, be counsel to the indemnifying party). After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such action and approval by the indemnified party of counsel as set forth herein, except as provided
herein, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense of such action other than reasonable costs of investigation;
provided, however, that any indemnified party shall have the right to employ separate counsel in any such action and to
participate in the defense of such action but the fees and expenses of such counsel (other than reasonable costs of investigation which
shall remain the expense of the Company) shall be at the expense of such indemnified party unless (i) in the case of an Underwriter
Indemnified Party, the employment thereof has been specifically authorized in writing by the Company in the case of a claim for indemnification
under Section 8(a), or (ii) such indemnified party shall have been advised by its counsel that there may be one or more
legal defenses available to it which are different from or additional to those available to the indemnifying party, or (iii) the
indemnifying party has failed to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party
within a reasonable period of time after notice of the commencement of the action or the indemnifying party does not diligently defend
the action after assumption of the defense, in which case, if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume
the defense of (or, in the case of a failure to diligently defend the action after assumption of the defense, to continue to defend) such
action on behalf of such indemnified party and the indemnifying party shall be responsible for legal or other expenses subsequently incurred
by such indemnified party in connection with the defense of such action; provided, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all such indemnified parties (in addition to any local counsel), which firm shall be designated in writing by
the Underwriter if the indemnified parties under this Section 8 consist of any Underwriter Indemnified Party or by the Company
if the indemnified parties under this Section 8 consist of any Company Indemnified Parties. Subject to this Section 8(c),
the amount payable by an indemnifying party under this Section 8 shall include, but not be limited to, (x) reasonable
legal fees and expenses of counsel to the indemnified party and any other expenses in investigating, or preparing to defend or defending
against, or appearing as a third party witness in respect of, or otherwise incurred in connection with, any action, investigation, proceeding
or claim, and (y) all amounts paid in settlement of any of the foregoing. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry of judgment with respect to any pending or threatened
action or any claim whatsoever, in respect of which indemnification or contribution could be sought under this Section 8 (whether
or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes
an unconditional release of each indemnified party in form and substance reasonably satisfactory to such indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party. Subject to the provisions of the following sentence, no indemnifying party shall be liable
for settlement of any pending or threatened action or any claim whatsoever that is effected without its written consent (which consent
shall not be unreasonably withheld or delayed), but if settled with its written consent, or if its consent has been unreasonably withheld
or delayed, or if there be a judgment for the plaintiff in any such matter, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of such settlement or judgment. In addition, if at any time an
indemnified party shall have requested that an indemnifying party reimburse the indemnified party for reasonable fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated herein effected without
its written consent if (i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party
of the request for reimbursement, (ii) such indemnifying party shall have received notice of the terms of such settlement at least
thirty (30) days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement, unless disputed in good faith.
(d) If
the indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under
Section 8(a), Section 8(b) or Section 8(c), then each applicable indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid, payable or otherwise incurred by such indemnified party as
a result of such loss, claim, damage, expense or liability (or any action, investigation or proceeding in respect thereof), as incurred,
(i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the Offering, or (ii) if the allocation provided by clause (i) of this Section 8(d) is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause
(i) of this Section 8(d) but also the relative fault of the Company on the one hand and each of the respective Underwriters
on the other with respect to the statements, omissions, acts or failures to act which resulted in such loss, claim, damage, expense or
liability (or any action, investigation or proceeding in respect thereof) as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters on the other hand with respect to such Offering shall be
deemed to be in the same proportion as the total net proceeds from the Offering pursuant to this Agreement (before deducting expenses)
received by the Company bear to the total compensation received by the Underwriter in connection with the Offering, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters
on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such untrue statement, omission, act or failure to act.
The
Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were
to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage, expense, liability, action,
investigation or proceeding referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d),
any legal or other expenses reasonably incurred by such indemnified party in connection with investigating, preparing to defend or defending
against or appearing as a third party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense,
liability, action, investigation or proceeding. Notwithstanding the provisions of this Section 8(d), no Underwriter shall
be required to contribute any amount in excess of the total compensation received by such Underwriter hereunder less the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement, omission
or alleged omission, act or alleged act or failure to act or alleged failure to act.
No person guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
9. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Underwriters' responsibility to the Company is solely contractual in nature, the Underwriters have been retained solely to act as underwriters
in connection with the Offering and no fiduciary, advisory or agency relationship between the Company and any Underwriter has been created
in respect of any of the transactions contemplated by this Agreement, irrespective of whether such Underwriter has advised or is advising
the Company on other matters;
(b) the
price of the Notes set forth in this Agreement was established by the Company following discussions and arms-length negotiations with
the Underwriters, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions
of the transactions contemplated by this Agreement;
(c) no
Underwriter has advised, and no Underwriter is advising, the Company or any other person as to any legal, tax, investment, accounting
or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby;
(d) the
Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Company with
respect thereto;
(e) no
Underwriter has or will be rendering an opinion to the Company as to the fairness of the terms of the offering of the Notes;
(f) it
has been advised that each Underwriter, and its affiliates, are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and no Underwriter has an obligation to disclose such interests and transactions to the Company by virtue
of any fiduciary, advisory or agency relationship; and
(g) it
waives, to the fullest extent permitted by law, any claims it may have against any Underwriter for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that each Underwriter shall not have any liability (whether direct or indirect) to the Company in
respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including
stockholders, employees or creditors of the Company.
10. Successors;
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company, and their respective successors and assigns. Nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any person, other than the persons mentioned in the preceding sentence, any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person;
except that the representations, warranties, covenants, agreements and indemnities of the Company contained in this Agreement shall also
be for the benefit of the Underwriter Indemnified Parties, and the indemnity of the Underwriters shall be for benefit of the Company
Indemnified Parties.
11. Survival
of Indemnities, Representations, Warranties, Etc. The respective indemnities, covenants,
agreements, representations, warranties and other statements of the Company and the Underwriters, as set forth in this Agreement or made
by them respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made by or on
behalf of the Underwriters, the Company or any person controlling any of them and shall survive delivery of and payment for the Notes.
Notwithstanding any termination of this Agreement, the indemnity and contribution agreements contained in Section 8 and the
covenants, representations, warranties set forth in this Agreement shall not terminate and shall remain in full force and effect at all
times.
12. Notices.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if
to the Underwriters, shall be delivered or sent by mail, overnight courier or email to B. Riley Securities, Inc., 299 Park Avenue,
21st Floor, New York, New York 10171, Attention: Syndicate Department, with a copy to Duane Morris LLP Attn: James T. Seery,
1540 Broadway, New York, New York 10036.
(b) if
to the Company, shall be delivered or sent by mail, overnight courier or email to Fossil Group, Inc., Attention: Randy Hyne, General
Counsel, 901 S. Central Expressway, Suite 800, Richardson, TX 75080, with a copy Akin Gump Strauss Hauer & Feld LLP, Attn:
Garrett A. DeVries, 2300 N. Field Street, Suite 1800, Dallas, TX 75201.
13. Definition
of Certain Terms. For purposes of this Agreement "business day" means any
day on which Nasdaq is open for trading.
14. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
15. Underwriter's
Information. The parties hereto acknowledge and agree that, for all purposes of this Agreement,
the Underwriter's Information consists solely of the following information in the General Disclosure Package, the Prospectus and in the
Registration Statement: the concession figure appearing in the first paragraph under the section entitled "Underwriting –
Discounts and Expenses" and the information contained in the second and fourth paragraphs relating to stabilization transactions
under the section entitled "Underwriting – Price Stabilization, Short Positions."
16. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph, clause or
provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph, clause or provision hereof.
If any section, paragraph, clause or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall
be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
17. General.
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. In this Agreement, the masculine, feminine
and neuter genders and the singular and the plural include one another. The section headings in this Agreement are for the convenience
of the parties only and will not affect the construction or interpretation of this Agreement. This Agreement may be amended or modified,
and the observance of any term of this Agreement may be waived, only by a writing signed by the Company and the Representative.
18. Counterparts.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument and such signatures may be delivered by facsimile.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and the several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this agreement and your acceptance shall constitute a binding agreement between the Company and the Underwriters, severally.
|
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Very truly yours,
FOSSIL GROUP, INC.
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|
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By:
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/s/
Sunil M. Doshi
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Name:
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Sunil M. Doshi
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Title:
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Senior Vice President, Chief Financial Officer & Treasurer
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B. RILEY SECURITIES, INC.
For themselves and as Representative
of the several Underwriters named
in Schedule A hereto
Accepted and agreed to as of the date first above
written:
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B. RILEY SECURITIES, INC.
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By:
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/s/
Patrice McNicoll
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Name:
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Patrice McNicoll
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Title:
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Co-Head of Investment Banking
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SCHEDULE
A
Underwriters
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Underwriters
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Aggregate
Principal
Amount of
Notes to
be Purchased
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|
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B. Riley Securities, Inc.
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$
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96,600,000
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|
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Janney Montgomery Scott LLC
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12,950,000
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Ladenburg Thalmann & Co. Inc.
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5,600,000
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William Blair & Co., L.L.C.
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5,600,000
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InspereX LLC
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|
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7,000,000
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Aegis Capital Corp.
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|
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700,000
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Alexander Capital L.P.
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1,400,000
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Brownstone Investment Group, LLC
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6,650,000
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Colliers Securities LLC
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700,000
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Huntington Securities, Inc.
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1,400,000
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Revere Securities LLC
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700,000
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Wedbush Securities Inc.
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|
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700,000
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|
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Total
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$
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140,000,000
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SCHEDULE
B
Pricing Information
The public offering price for the Notes shall
be 100% of the aggregate principal amount.
The purchase price for the Notes to be paid by
the several Underwriters shall be 96.75% of the aggregate principal amount thereof.
SCHEDULE C
Free Writing Prospectuses
Final term sheet as prepared pursuant to Section 4(b) hereto
and filed as an Issuer Free Writing Prospectus by the Company with the Commission on November 4, 2021
SCHEDULE D
Filed pursuant to Rule 433
Registration No. 333-259352
Issuer Free Writing Prospectus
Supplementing the Preliminary Prospectus Supplement
dated November 1, 2021
FOSSIL
GROUP, INC.
US $140,000,000
7.00%
Senior Notes Due 2026
Final Term Sheet
November 3, 2021
This pricing term sheet supplements the Preliminary
Prospectus Supplement, dated November 1, 2021 (the "Preliminary Prospectus Supplement"). The information in this pricing
term sheet supplements the Preliminary Prospectus Supplement and updates and supersedes the information in the Preliminary Prospectus
Supplement to the extent it is inconsistent with the information in the Preliminary Prospectus Supplement. Terms used and not defined
herein have the meanings assigned in the Preliminary Prospectus Supplement.
Change in Offering Size
The size of the offering has been increased from
$125,000,000 to $140,000,000 and the size of the option granted to the underwriters has been increased from $5,000,000 to $10,000,000.
The proceeds received from the increase in the offering size will be used first to repay the Term Credit Agreement in full and then for
general corporate purposes. Corresponding changes will be deemed made where applicable throughout the Preliminary Prospectus Supplement.
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Issuer:
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Fossil Group, Inc.
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Securities:
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7.00% Senior Notes Due 2026 (the "Notes")
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Type:
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SEC Registered
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Trade Date:
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November 4, 2021
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Settlement Date:
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November 8, 2021 (T+2)
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Listing:
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Expected Nasdaq "FOSLL"
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Size:
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$140,000,000
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Underwriters’ Option to Purchase
Additional Notes:
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$10.0 million
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Maturity Date:
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November 30, 2026
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Rating:
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The Notes have received a "B" rating from Standard & Poor's, an independent, unaffiliated rating agency. Ratings are not a recommendation to purchase, hold or sell notes, inasmuch as the ratings do not comment as to market price or suitability for a particular investor. The ratings are based upon current information furnished to the rating agency by the Issuer and information obtained by the rating agency from other sources. The ratings are only accurate as of the date thereof and may be changed, superseded or withdrawn as a result of changes in, or unavailability of, such information, and therefore a prospective purchaser should check the current ratings before purchasing the Notes. Each rating should be evaluated independently of any other rating.
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Annual Coupon:
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7.00%, paid quarterly in arrears
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Interest Payment Dates:
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February 28, May 31, August 31 and November 30, commencing February 28, 2022, and at maturity
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Price to the Public:
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100%
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Day Count:
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30/360
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Optional Redemption:
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We may redeem the Notes for cash in whole or in part at any time at our option. Prior to November 30, 2023, the redemption price will be $25.00 per $25.00 principal amount of Notes, plus a “make-whole” premium calculated at T + 50 bps, plus accrued and unpaid interest. On and after November 30, 2023, we may redeem the Notes for cash (i) on or after November 30, 2023 and prior to November 30, 2024 at a price equal to $25.50 per $25.00 principal amount of Notes, (ii) on or after November 30, 2024 and prior to November 30, 2025 at a price equal to $25.25 per $25.00 principal amount of Notes, and (iii) on or after November 30, 2025 at a price equal to $25.00 per $25.00 principal amount of Notes, plus (in each case noted above) accrued and unpaid interest to, but excluding, the date of redemption.
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Minimum Denomination / Multiples:
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$25.00/$25.00
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CUSIP/ISIN:
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34988V 304/ US34988V3042
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Book-Running Managers:
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B. Riley Securities, Janney Montgomery Scott, Ladenburg Thalmann, William Blair
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Lead Manager:
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InspereX
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Co-Managers:
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Aegis Capital Corp., Alexander Capital L.P., Brownstone Investment Group, LLC, Colliers Securities LLC, Huntington Capital Markets, Revere Securities LLC, Wedbush Securities
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This communication is intended for the sole
use of the person to whom it is provided by the issuer.
The issuer has filed a shelf registration statement
(including a base prospectus dated September 30, 2021) and Preliminary Prospectus Supplement with the Securities and Exchange Commission
("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 related preliminary prospectus supplement
if you request them from B. Riley Securities, Inc. by calling (703) 312-9580 or by emailing prospectuses@brileyfin.com.
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 E-MAIL SYSTEM.
Exhibit 4.1
Execution
Version
FOSSIL GROUP, INC.
and
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
INDENTURE
Dated as of November 8, 2021
SENIOR DEBT SECURITIES
TABLE
OF CONTENTS
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Page
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Article I. Definitions and Incorporation by Reference
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1
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Section 1.01
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Definitions.
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1
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Section 1.02
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Other Definitions
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6
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Section 1.03
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Incorporation by Reference of Trust Indenture Act
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6
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Section 1.04
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Rules of Construction
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6
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Article II. The Securities
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7
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Section 2.01
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Form, Dating and Terms
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7
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Section 2.02
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Denominations
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10
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Section 2.03
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Forms Generally
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10
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Section 2.04
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Execution, Authentication, Delivery and Dating
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11
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Section 2.05
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Registrar and Paying Agent
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13
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Section 2.06
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Paying Agent to Hold Money in Trust
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13
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Section 2.07
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Holder Lists
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13
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Section 2.08
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Transfer and Exchange
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14
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Section 2.09
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Mutilated, Destroyed, Lost or Wrongfully Taken Securities
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14
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Section 2.10
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Outstanding Securities
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15
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Section 2.11
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Cancellation
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16
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Section 2.12
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Payment of Interest; Defaulted Interest
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16
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Section 2.13
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Temporary Securities
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17
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Section 2.14
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Persons Deemed Owners
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17
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Section 2.15
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Computation of Interest
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17
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Section 2.16
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Global Securities; Book-Entry Provisions
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17
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Section 2.17
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CUSIP Numbers, Etc.
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20
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Section 2.18
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Original Issue Discount and Foreign-Currency Denominated Securities
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20
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Article III. Covenants
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20
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Section 3.01
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Payment of Securities
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20
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Section 3.02
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Reports
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21
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Section 3.03
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Maintenance of Office or Agency
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21
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Section 3.04
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Corporate Existence
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21
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Section 3.05
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Compliance Certificate
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21
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Section 3.06
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Statement by Officers as to Default
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22
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|
Section 3.07
|
Additional Amounts
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22
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Section 3.08
|
Calculation of Original Issue Discount
|
22
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Article IV. Successors
|
23
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|
Section 4.01
|
Consolidation, Merger or Sale of Assets
|
23
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Article V. Redemption of Securities
|
23
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Section 5.01
|
Applicability of Article
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23
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Section 5.02
|
Election to Redeem; Notice to Trustee
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23
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Section 5.03
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Selection by Trustee of Securities to Be Redeemed
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24
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Section 5.04
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Notice of Redemption
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24
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Section 5.05
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Deposit of Redemption Price
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25
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Section 5.06
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Securities Payable on Redemption Date
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25
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Section 5.07
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Securities Redeemed in Part
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25
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Article VI. Defaults and Remedies
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26
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Section 6.01
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Events of Default
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26
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Section 6.02
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Acceleration
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27
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Section 6.03
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Other Remedies
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28
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Section 6.04
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Waiver of Past Defaults
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28
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Section 6.05
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Control by Majority
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28
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Section 6.06
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Limitation on Suits
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29
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Section 6.07
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Rights of Holders to Receive Payment
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29
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Section 6.08
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Collection Suit by Trustee
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29
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Section 6.09
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Trustee May File Proofs of Claim
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30
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Section 6.10
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Priorities
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30
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Section 6.11
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Undertaking for Costs
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30
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Article VII. Trustee
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31
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Section 7.01
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Duties of Trustee
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31
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Section 7.02
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Rights of Trustee
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32
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Section 7.03
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Individual Rights of Trustee
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34
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Section 7.04
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Trustee’s Disclaimer
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34
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Section 7.05
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Notice of Defaults
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34
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Section 7.06
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Reports by Trustee to Holders
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34
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Section 7.07
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Compensation and Indemnity
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35
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Section 7.08
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Replacement of Trustee
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35
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Section 7.09
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Successor Trustee by Merger
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37
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Section 7.10
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Eligibility; Disqualification
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37
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Section 7.11
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Preferential Collection of Claims Against Company
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38
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Article VIII. Legal Defeasance and Covenant Defeasance
|
38
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Section 8.01
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Option to Effect Legal Defeasance or Covenant Defeasance
|
38
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Section 8.02
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Legal Defeasance and Discharge
|
38
|
|
Section 8.03
|
Covenant Defeasance
|
39
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|
Section 8.04
|
Conditions to Legal or Covenant Defeasance
|
39
|
|
Section 8.05
|
Deposited Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions
|
40
|
|
Section 8.06
|
Repayment to Company
|
41
|
|
Section 8.07
|
Reinstatement
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41
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|
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|
Article IX. Amendments
|
41
|
|
Section 9.01
|
Without Consent of Holders
|
41
|
|
Section 9.02
|
With Consent of Holders
|
43
|
|
Section 9.03
|
Compliance with Trust Indenture Act
|
44
|
|
Section 9.04
|
Revocation and Effect of Consents and Waivers
|
44
|
|
Section 9.05
|
Notation on or Exchange of Securities
|
45
|
|
Section 9.06
|
Trustee To Sign Amendments
|
45
|
|
Article X. Satisfaction and Discharge
|
45
|
|
Section 10.01
|
Satisfaction and Discharge
|
45
|
|
Section 10.02
|
Application of Trust Money
|
47
|
|
|
|
|
|
Article XI. Miscellaneous
|
47
|
|
Section 11.01
|
Trust Indenture Act Controls
|
47
|
|
Section 11.02
|
Notices
|
47
|
|
Section 11.03
|
Communication by Holders with other Holders
|
48
|
|
Section 11.04
|
Certificate and Opinion as to Conditions Precedent
|
48
|
|
Section 11.05
|
Statements Required in Certificate or Opinion
|
48
|
|
Section 11.06
|
Form of Documents Delivered to Trustee
|
49
|
|
Section 11.07
|
When Securities Disregarded
|
49
|
|
Section 11.08
|
Rules by Trustee, Paying Agent and Registrar
|
49
|
|
Section 11.09
|
Legal Holidays
|
49
|
|
Section 11.10
|
Governing Law; Waiver of Jury Trial; Submission to Jurisdiction
|
50
|
|
Section 11.11
|
No Recourse Against Others
|
50
|
|
Section 11.12
|
Successors
|
50
|
|
Section 11.13
|
Multiple Originals
|
50
|
|
Section 11.14
|
Severability
|
51
|
|
Section 11.15
|
No Adverse Interpretation of Other Agreements
|
51
|
|
Section 11.16
|
Table of Contents; Headings
|
51
|
|
Section 11.17
|
Force Majeure
|
52
|
|
Section 11.18
|
USA PATRIOT ACT
|
52
|
|
Section 11.19
|
Electronic Means
|
52
|
Fossil Group, Inc.
CROSS-REFERENCE TABLE
Reconciliation and tie between Trust Indenture
Act of 1939
and Indenture
|
TIA Section
|
Indenture Section
|
|
310
|
(a)
|
7.10
|
|
|
(b)
|
7.08; 7.10
|
|
|
(c)
|
N.A.
|
|
311
|
(a)
|
7.11
|
|
|
(b)
|
7.11
|
|
|
(c)
|
N.A.
|
|
312
|
(a)
|
N.A.
|
|
|
(b)
|
12.03
|
|
|
(c)
|
12.03
|
|
313
|
(a)
|
7.06
|
|
|
(b)
|
7.06
|
|
|
(c)
|
7.06
|
|
|
(d)
|
N.A.
|
|
314
|
(a)
|
3.02; 3.05
|
|
|
(b)
|
N.A.
|
|
|
(c)
|
11.05
|
|
|
(d)
|
N.A.
|
|
|
(e)
|
11.04
|
|
|
(f)
|
N.A.
|
|
315
|
(a)
|
7.01
|
|
|
(b)
|
7.05
|
|
|
(c)
|
7.01
|
|
|
(d)
|
7.01
|
|
|
(e)
|
6.11
|
|
316
|
(a) (last sentence)
|
11.07
|
|
|
(a)(1)(A)
|
6.05
|
|
|
(a)(1)(B)
|
6.04
|
|
|
(a)(2)
|
9.02
|
|
|
(b)
|
6.07
|
|
317
|
(a)(1)
|
6.08
|
|
|
(a)(2)
|
6.09
|
|
|
(b)
|
2.06
|
|
318
|
(a)
|
11.01
|
|
|
|
|
N.A. Means Not Applicable.
Note: This Cross-Reference Table shall not, for
any purposes, be deemed to be part of this Indenture.
INDENTURE
THIS INDENTURE, dated
as of November 8, 2021, is entered into by and between Fossil Group, Inc., a Delaware corporation (the “Company”),
and The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (the “Trustee”).
RECITALS OF THE COMPANY
WHEREAS,
the Company may from time to time duly authorize the issue of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the “Securities”) up to such principal amount or amounts as may from time
to time be authorized in accordance with the terms of this Indenture;
WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS,
all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW,
THEREFORE, in consideration of the premises and the purchases of the Securities by the Holders thereof, the Company and the
Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Securities
as follows:
Article I.
Definitions and Incorporation by Reference
Section 1.01 Definitions.
“Additional Amounts”
means any additional amounts required by the express terms of a Security or by or pursuant to a Board Resolution of the Company, under
circumstances specified therein or pursuant thereto, to be paid by the Company with respect to certain taxes, assessments or other governmental
charges imposed on certain Holders and that are owing to those 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 purposes of this definition, “control,” as used with respect to any
Person, means 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, by agreement or otherwise. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.
“Agent”
means any Registrar, Paying Agent, co-registrar or transfer agent.
“Bankruptcy Law”
means Title 11, United States Code or any similar Federal or state law for the relief of debtors.
“Board of Directors”
means:
(1) with
respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such
board;
(2) with
respect to a partnership, the board of directors of the general partner of the partnership;
(3) with
respect to a limited liability company, the manager, managers, managing member or members or any controlling committee of managers or
managing members thereof, as the case may be; and
(4) with
respect to any other Person, the board or committee of such Person serving a similar function.
“Board Resolution”
means a copy of a resolution certified by a Vice President, the Secretary or an Assistant Secretary of the applicable Person to have been
duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered
to the Trustee.
“Business Day”
means any day other than a Saturday, a Sunday or a day on which Federal or State banking institutions in the Borough of Manhattan, The
City of New York, or in the city where the office or agency for payment on the Securities of the applicable series is maintained, are
authorized or obligated by law, executive order or regulation to close.
“Capital Stock”
means:
(1) in
the case of a corporation, corporate stock;
(2) in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;
(3) in
the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person,
but excluding from all of the
foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with
Capital Stock.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Company”
has the meaning ascribed to it in the first introductory paragraph of this Indenture, subject to Article IV of this Indenture.
“Company Order”
and “Company Request” mean, respectively, a written order or request signed in the name of the Company by two
Officers of the Company, and delivered to the Trustee.
“Corporate Trust
Office” means the office of the Trustee at which at any particular time its corporate trust business in Los Angeles, California
shall be principally administered, which office as of the date of this instrument is located at its address specified in Section 11.02,
except that with respect to presentation of Securities for payment or for registration of transfer, conversion or exchange, such term
shall mean the office or agency of the Trustee at which at any particular time its corporate agency business shall be conducted, which
office at the date of this instrument is located at 2001 Bryan Street, 10th Floor, Dallas, Texas 75201; Attention: Corporate
Trust Division - Transfers, or, in the case of any of such offices or agency, such other address as the Trustee may designate from time
to time by notice to the Company.
“Custodian”
means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“Default”
means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any series issuable or issued in whole or in part in global form, the Person specified pursuant
to Section 2.01 hereof as the initial Depositary with respect to the Securities of that series, until a successor shall have
been appointed and become such pursuant to the applicable provision of this Indenture, and thereafter “Depositary” shall mean
or include that successor.
“Dollar”
or “$” means a dollar or other equivalent unit in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private debt.
“DTC”
means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter
appointed by the Company.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“GAAP”
means generally accepted accounting principles as in effect from time to time in the United States.
“Global Securities”
of any series means a Security of that series that is issued in global form in the name of the Depositary with respect thereto or its
nominee.
“Government Securities”
means direct obligations of, or obligations guaranteed by, the United States of America for the payment of which obligations or guarantee
the full faith and credit of the United States of America is pledged.
“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 indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well,
to maintain financial statement conditions or otherwise), or entered into for purposes of assuring in any other manner the obligee of
such indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part).
“Holder”
means a Person in whose name a Security is registered in the applicable Register.
“Indenture”
means this Indenture as amended or supplemented from time to time by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
The term “Indenture” shall also include the terms of any particular series of Securities established as
contemplated by Section 2.01.
“Interest Payment
Date,” when used with respect to any Security, shall have the meaning assigned to that term in the Security as contemplated
by Section 2.01.
“Maturity”
means, with respect to any Security, the date on which the principal of that Security or an installment of principal becomes due and payable
as therein or herein provided, whether at the Stated Maturity thereof, or by declaration of acceleration, call for redemption or otherwise.
“Obligations”
means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any indebtedness.
“Officer”
means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer,
any Executive Vice President, Senior Vice President, or Vice President, the Treasurer, any comptroller, any Assistant Treasurer, the Secretary
or any Assistant Secretary of the Company.
“Officers’
Certificate” means a certificate signed by two Officers, at least one of whom shall be the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, or the comptroller, that contains the statements required
by Section 11.04 (if applicable) and Section 11.05 and delivered to the Trustee.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the Company, and who shall be reasonably acceptable to the Trustee, that contains
the statements required by Section 11.04 (if applicable) and Section 11.05.
“Original Issue
Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable
on a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
“Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
“Redemption Date”
when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture and the terms of such Security.
“Redemption Price”
means, with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to this Indenture and the terms of
such Security.
“SEC”
means the Securities and Exchange Commission.
“Securities”
has the meaning ascribed to it in the second introductory paragraph of this Indenture.
“Securities Act”
means the Securities Act of 1933, as amended.
“Security Custodian”
means, with respect to Securities of a series issued in global form, the Trustee for Securities of that series, as custodian with respect
to the Securities of that series, or any successor entity thereto.
“Stated Maturity”
means, with respect to any installment of interest or principal on any series of indebtedness, the date on which the payment of interest
or principal was scheduled to be paid in the documentation governing such indebtedness, and will not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“Subsidiary”
of any specified Person means any Person of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person.
“TIA”
or “Trust Indenture Act,” except as otherwise provided in Section 9.03, means the Trust Indenture
Act of 1939 (15 U.S.C. §§ 77aaa through 77bbbb), as in effect on the date hereof.
“Trust Officer”
shall mean, with respect to the Trustee, any officer assigned to the Corporate Trust Division - Corporate Finance Unit (or any successor
division or unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility for the administration
of this Indenture, and for the purposes of Section 7.01(c)(ii) shall also include any other officer of the Trustee to
whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Trustee”
means the Person named in the first introductory paragraph of this Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture, and thereafter “Trustee” means 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
means the Trustee with respect to Securities of that series.
“United States
Alien” means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which
is, for United States Federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
“Voting Stock”
of any specified Person as of any date means the Capital Stock of such Person that is at the time then outstanding and is normally entitled
(without regard to the occurrence of any contingency) to vote in the election of the Board of Directors of such Person.
Section 1.02 Other
Definitions.
|
Term
|
|
Defined in Section
|
|
“Agent Members”
|
|
Section 2.16
|
|
“Corporate Trust Office”
|
|
Section 3.03
|
|
“Covenant Defeasance”
|
|
Section 8.03
|
|
“Defaulted Interest”
|
|
Section 2.12
|
|
“Event of Default”
|
|
Section 6.01
|
|
“Exchange Rate”
|
|
Section 2.18
|
|
“Legal Defeasance”
|
|
Section 8.02
|
|
“Legal Holiday”
|
|
Section 11.08
|
|
“Patriot Act”
|
|
Section 11.18
|
|
“Paying Agent”
|
|
Section 2.05
|
|
“protected purchaser”
|
|
Section 2.09
|
|
“Register”
|
|
Section 2.05
|
|
“Registrar”
|
|
Section 2.05
|
|
“Special Interest Payment Date”
|
|
Section 2.12(a)
|
|
“Special Record Date”
|
|
Section 2.12(a)
|
|
“Surviving Entity”
|
|
Section 4.01(a)
|
Section 1.03 Incorporation
by Reference of Trust Indenture Act. This Indenture is subject to the provisions of the TIA, which are incorporated by reference in
and made a part of this Indenture. The following TIA terms have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Holder of a Security.
“indenture to
be qualified” means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor”
on any series of Securities means the Company and any other obligor on such series of Securities.
All other TIA terms used in
this Indenture that are defined by the TIA, defined in the TIA by reference to another statute or defined by SEC rules promulgated
under the TIA have the meanings assigned to them by such definitions.
Section 1.04 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 GAAP;
(c) “or”
is not exclusive;
(d) “including”
means including without limitation;
(e) words
in the singular include the plural and words in the plural include the singular;
(f) the
principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the Company dated such date prepared in accordance with GAAP; and
(g) provisions
apply to successive events and transactions.
Article II.
The Securities
Section 2.01 Form,
Dating and Terms. 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. There shall be established in or pursuant to a Board Resolution of the Company, and set forth, or determined in
the manner provided, in an Officers’ Certificate of the Company or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the
title of the Securities of the series (which shall distinguish the Securities of the series from the Securities of all other series);
(b) if
there is to be a limit, the limit upon the aggregate principal amount of the Securities of the series that 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 2.08, Section 2.09, Section 2.13, Section 2.16,
Section 5.07 or Section 9.05 and except for any Securities that, pursuant to Section 2.04 or Section 2.16,
are deemed never to have been authenticated and delivered hereunder); provided, however, that unless otherwise provided
in the terms of the series, the authorized aggregate principal amount of such series may be increased before or after the issuance of
any Securities of the series by a Board Resolution (or action pursuant to a Board Resolution) of the Company to such effect;
(c) whether
any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be
issuable in permanent global form, as Global Securities or otherwise, and, if so, whether beneficial owners of interests in any such Global
Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner provided in Section 2.16, and the initial Depositary
and Security Custodian, if any, for any Global Security or Securities of such series;
(d) the
manner in which any interest payable on a temporary Global Security on any Interest Payment Date will be paid if other than in the manner
provided in Section 2.12;
(e) the
date or dates on which the principal of and premium (if any) on the Securities of the series is payable or the method of determination
thereof;
(f) the
rate or rates, or the method of determination thereof, at which the Securities of the series shall bear interest, if any, whether and
under what circumstances Additional Amounts with respect to such Securities shall be payable, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be payable and the record date for the interest payable on any Securities
on any Interest Payment Date, or if other than provided herein, the Person to whom any interest on Securities of the series shall be payable;
(g) the
place or places where, subject to the provisions of Section 3.03, the principal of, premium (if any) and interest on and any
Additional Amounts with respect to the Securities of the series shall be payable;
(h) the
period or periods within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms and
conditions upon which Securities of the series may be redeemed or repurchased, in whole or in part, at the option of the Company, if the
Company is to have that option, including the redemption or repurchase price or prices, and the manner in which the Company must exercise
any such option, if different from those set forth herein;
(i) the
obligation, if any, of the Company to redeem, purchase, repurchase or repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within which, the price or prices (whether denominated in cash,
securities or otherwise) at which and the terms and conditions upon which Securities of the series shall be redeemed, purchased, repurchased
or repaid in whole or in part pursuant to such obligation;
(j) if
other than denominations of $1,000 and any integral multiple of $1,000 in excess thereof, the denomination in which any Securities of
that series shall be issuable;
(k) if
other than Dollars, the currency or currencies (including composite currencies) or the form, including equity securities, other debt securities
(including Securities), warrants or any other securities or property of the Company or any other Person, in which payment of the principal
of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series shall be payable;
(l) if
the principal of, premium (if any) or interest on or any Additional Amounts with respect to the Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in a currency or currencies (including composite currencies) other than that in which
the Securities are stated to be payable, the currency or currencies (including composite currencies) in which payment of the principal
of, premium (if any) and interest on and any Additional Amounts with respect to Securities of such series as to which such election is
made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made;
(m) if
the amount of payments of principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of
the series may be determined with reference to any commodities, currencies or indices, values, rates or prices or any other index or formula,
the manner in which such amounts shall be determined;
(n) if
other than the entire principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(o) any
additional means of satisfaction and discharge of this Indenture and any additional conditions or limitations to defeasance or discharge
with respect to Securities of the series pursuant to Article VIII or Article X or any modifications of or deletions
from such conditions or limitations;
(p) any
deletions or modifications of or additions to the covenants of the Company set forth in Article III or otherwise in this Indenture
pertaining to the Securities of the series;
(q) any
deletions or modifications of or additions to the Events of Default set forth in Section 6.01 pertaining to the Securities
of the series;
(r) any
deletions or modifications of or additions to the provisions of Section 6.02 through Section 6.11 pertaining to
the Securities of the series;
(s) the
terms and conditions, if any, upon which the Securities of the series shall be subordinated, in right of payment or otherwise, to any
other indebtedness or other obligations of the Company or any guarantor of the Securities of the series;
(t) any
restrictions or other provisions with respect to the transfer or exchange of Securities of the series, which may amend, supplement, modify
or supersede those contained in this Article II;
(u) if
the Securities of the series are to be convertible into or exchangeable for other debt securities (including Securities) or any other
securities or property of the Company or any other Person, at the option of the Company or the Holder or upon the occurrence of any condition
or event, the terms and conditions for such conversion or exchange;
(v) if
applicable, that the Securities of the series, in whole or any specified part, shall not be defeasible pursuant to Section 8.02
or Section 8.03 or both such Sections, and, if such Securities may be defeased, in whole or in part, pursuant to either or
both such Sections, any provisions to permit a pledge of obligations other than Government Securities (or the establishment of other arrangements)
to satisfy the requirements of Section 8.04(a) for defeasance of such Securities and, if other than by a Board Resolution
of the Company, the manner in which any election by the Company to defease such Securities shall be evidenced;
(w) the
terms and conditions upon which Guarantees, if any, are to be provided with respect to the Securities of the series, and the names of,
or the method of determination or identification of, the Persons providing such Guarantees;
(x) the
priority and kind of any lien securing the Securities of the series and a brief identification of the properties subject to such lien
or the method of determination or identification of such properties;
(y) any
trustees, authenticating agents, Paying Agents, Registrars, Depositaries, interest rate calculation agents, exchange rate calculation
agents or other agents pertaining to the Securities of the series; and
(z) any
other terms of the Securities of the series (which terms shall not be prohibited by the provisions of this Indenture).
All Securities of any one
series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 2.03) set forth, or determined in the manner provided, in the Officers’
Certificate or Company Order referred to above or in any such indenture supplemental hereto. All Securities of any one series need not
be issued at the same time, and a series may be reopened, without the consent of the Holders, for issuances of additional Securities of
that series except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 2.03)
set forth, or determined in the manner provided, in the Officers’ Certificate or Company Order referred to above or in any such
indenture supplemental hereto.
If any of the terms of the
series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action, together with such
Board Resolution, shall be set forth in an Officers’ Certificate or certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate or Company Order setting forth the
terms of the series.
Section 2.02 Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 2.01.
In the absence of any such provisions with respect to the Securities of any series, the Securities of such series denominated in Dollars
shall be issuable in denominations of $1,000 and any integral multiple of $1,000 in excess thereof.
Section 2.03 Forms
Generally. The Securities of each series shall be in fully registered form and in substantially such form or forms (including temporary
or permanent global form) established by or pursuant to a Board Resolution of the Company or in one or more indentures supplemental hereto.
The Securities may have notations, legends or endorsements required by law, securities exchange rules, the Company’s certificate
of incorporation, bylaws or other similar governing documents, agreements to which the Company is subject, if any, or usage (provided
that any such notation, legend or endorsement is in a form acceptable to the Company). A copy of such Board Resolution establishing the
form or forms of Securities of any series shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated
by Section 2.04 for the authentication and delivery of such Securities.
The definitive Securities
of each series 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 thereof.
The Trustee’s certificate
of authentication shall be in substantially the following form:
“CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein referred to in the within-mentioned Indenture.
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The Bank of New York Mellon Trust Company, N.A., as Trustee
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By:
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Authorized Signatory
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Section 2.04 Execution,
Authentication, Delivery and Dating. Two Officers of the Company shall sign the Securities on behalf of the Company by manual or PDF
or other electronically imaged (such as DocuSign or Adobe Sign) signature.
If an Officer of the Company
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 entitled
to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated by the manual or PDF or other electronically
imaged (such as DocuSign or Adobe Sign) signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence
that the Security has been authenticated under this Indenture. Notwithstanding the foregoing, if any Security has been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company delivers such Security to the Trustee for cancellation as
provided in Section 2.11, together with a written statement (which need not comply with Section 11.05 and need
not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
At any time and from time
to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to
the Trustee for authentication, and the Trustee shall authenticate and deliver such Securities for original issue upon a Company Order
for the authentication and delivery of such Securities or pursuant to such procedures acceptable to the Trustee as may be specified from
time to time by Company Order. Such order shall specify the principal amount of the Securities to be authenticated, the date on which
the original issue of Securities is to be authenticated, the name or names of the initial Holder or Holders and any other terms of the
Securities of such series not otherwise determined. If provided for in such procedures, such Company Order may authorize (1) authentication
and delivery of Securities of such series for original issue from time to time, with certain terms (including, without limitation, the
Maturity dates or dates, original issue date or dates and interest rate or rates) that differ from Security to Security and (2) authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent, which instructions shall be promptly
confirmed in writing.
If the form or terms of the
Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Section 2.01,
in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall receive (in addition to the Company Order referred to above and the other documents required by Section 11.04)
and (subject to Section 7.01) shall be fully protected in conclusively relying upon:
(a) an
Officers’ Certificate of the Company setting forth the Board Resolution and, if applicable, an appropriate record of any action
taken pursuant thereto, as contemplated by the last paragraph of Section 2.01; and
(b) an
Opinion of Counsel to the effect that:
(i) the
form of such Securities has been established in conformity with the provisions of this Indenture;
(ii) the
terms of such Securities have been established in conformity with the provisions of this Indenture; and
(iii) such
Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance
with their respective terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other similar laws in effect from time to time affecting the rights of creditors generally,
and the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity
or at law).
Such Opinion of Counsel may be subject to other
then-customary assumptions, exceptions, limitations and qualifications.
If all the Securities of any
series are not to be issued at one time, it shall not be necessary to deliver an Officers’ Certificate and Opinion of Counsel at
the time of issuance of each such Security, but such Officers’ Certificate and Opinion of Counsel shall be delivered at or before
the time of issuance of the first Security of the series to be issued.
The Trustee shall not be required
to authenticate such Securities if the issuance of such Securities pursuant to this Indenture would affect the Trustee’s own rights,
duties or immunities under the Securities and this Indenture or otherwise in a manner not acceptable to the Trustee.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. Unless limited by the terms of such appointment, any such authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
Each Security shall be dated
the date of its authentication.
Section 2.05 Registrar
and Paying Agent. The Company shall maintain an office or agency for each series of Securities where Securities of such series may
be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where
Securities of such series may be presented for payment (the “Paying Agent”). The Company shall cause each
of the Registrar and the Paying Agent to maintain an office or agency in the United States of America. The Registrar shall keep a register
of the Securities and of their transfer and exchange (the “Register”). The Company may have one or more
co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional
paying agent.
The Company shall enter into
an appropriate agency agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture, which shall incorporate
the applicable terms of the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company
shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company
or any of its Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints
the Trustee as Registrar and Paying Agent for the Securities.
Section 2.06 Paying
Agent to Hold Money in Trust. By no later than 10:00 a.m. (New York City time) on the date on which any amount or Additional
Amounts, if any, in respect of any Security is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately
available funds to pay such amount or Additional Amounts, if any, when due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of the applicable Holders or the Trustee all money
held by such Paying Agent for the payment of such amount and Additional Amounts, if any, on the applicable Securities and shall notify
the Trustee in writing of any default by the Company in making any such payment. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying
Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent.
Upon complying with this Section 2.06, the Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money delivered to the Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities.
Section 2.07 Holder
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 Holders. If the Trustee is not the Registrar with respect to a series of Securities, or to the extent otherwise required
under the TIA, the Company shall furnish to the Trustee, in writing at least five Business Days before each Interest Payment Date with
respect to such series of Securities 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 Holders of such series.
Section 2.08 Transfer
and Exchange. Except as set forth in Section 2.16 or as may be provided pursuant to Section 2.01, when Securities
of any series are presented to the Registrar with the request to register the transfer of those Securities or to exchange those Securities
for an equal principal amount of Securities of the same series of like tenor and of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its requirements and the requirements of this Indenture for those transactions
are met; provided, however, that the Securities presented or surrendered for registration of transfer or exchange shall
be duly endorsed or accompanied by a written instruction of transfer in form reasonably satisfactory to the Registrar duly executed by
the Holder thereof or by his attorney, duly authorized in writing, on which instruction the Registrar can rely.
To permit registrations of
transfers and exchanges, the Company shall execute Securities and the Trustee shall authenticate such Securities at the Registrar’s
written request and submission of the Securities (other than Global Securities). No service charge shall be made to a Holder for any registration
of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith (other than such transfer tax or similar governmental
charge payable on exchanges pursuant to Section 2.13, Section 5.07 or Section 9.05). The Trustee shall
authenticate Securities in accordance with the provisions of Section 2.04. Notwithstanding any other provisions of this Indenture
to the contrary, the Company shall not be required to register the transfer or exchange of (a) any Security selected for redemption
in whole or in part pursuant to Article V, except the unredeemed portion of any Security being redeemed in part or (b) any
Security during the period beginning 15 days before the giving of notice of any offer to repurchase Securities of the series required
pursuant to the terms thereof or of redemption of Securities of a series to be redeemed and ending at the close of business on the date
of giving of such notice.
None of the Company, the Trustee, the Paying Agent
and the Registrar shall have any 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 (including any transfers
between or among DTC participants, members or beneficial owners in any Global 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.
Section 2.09 Mutilated,
Destroyed, Lost or Wrongfully Taken Securities. If a mutilated Security is surrendered to the Registrar or if the Holder of a Security
claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement
Security with respect to such series if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder
(a) satisfies the Company or the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful
taking and the Registrar does not register a transfer prior to receiving such notification, (b) makes such request to the Company
or Trustee prior to the Security being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code
(a “protected purchaser”), and (c) satisfies any other reasonable requirements of the Trustee. Such Holder
shall furnish an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar from any loss which any of them may suffer if a Security is replaced, and, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and, upon
a Company Order, the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or wrongfully taken Security, a new Security of like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated,
destroyed, lost or wrongfully taken Security has become or is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security of such series, pay such Security.
Upon the issuance of any new
Security under this Section 2.09, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
Every new Security issued
pursuant to this Section 2.09 in lieu of any mutilated, destroyed, lost or wrongfully taken Security shall constitute an original
additional contractual obligation of the Company and any other obligor upon the Securities of such series, whether or not the mutilated,
destroyed, lost or wrongfully taken Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities of such series duly issued hereunder.
The provisions of this Section 2.09
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 wrongfully taken Securities.
Section 2.10 Outstanding
Securities. Securities outstanding at any time are all Securities authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those paid pursuant to Section 2.09 and those described in this Section 2.10
as not outstanding. A Security ceases to be outstanding in the event the Company or a Subsidiary of the Company holds the Security; provided,
however, that for purposes of determining which Securities are outstanding for consent or voting purposes hereunder, the provisions
of Section 11.06 shall apply.
If a Security is replaced
pursuant to Section 2.09, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them
that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates
and holds in trust, in accordance with this Indenture, on a Redemption Date, repurchase date or maturity date money sufficient to pay
all amounts and Additional Amounts, if any, payable on that date with respect to the Securities (or portions thereof) to be redeemed,
repurchased or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date
pursuant to the terms of this Indenture, then on and after that date such Securities (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
Section 2.11 Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel
all Securities surrendered for registration of transfer, exchange, payment or cancellation and dispose of such Securities in accordance
with its internal policies. The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for
cancellation for any reason other than in connection with a transfer or exchange.
Section 2.12 Payment
of Interest; Defaulted Interest. Unless otherwise provided as contemplated by Section 2.01 with respect to the Securities
of any series, interest and Additional Amounts, if any, on any Security of such series which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid to the Person in whose name such Security (or one or more predecessor Securities)
is registered at the close of business on the regular record date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 2.05.
Unless otherwise provided
as contemplated by Section 2.01 with respect to the Securities of any series, any interest and Additional Amounts, if any,
on any Security of such series which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for
a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to
the extent lawful) interest on such defaulted interest at the rate provided for in the Securities therefor (such defaulted interest and
interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date (not less than 30 days after such notice) of the proposed payment (the “Special
Interest Payment Date”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a record date (the “Special Record
Date”) for the payment of such Defaulted Interest, which date shall be not more than 15 days and not less than 10 days prior
to the Special Interest Payment Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date, and in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be
given in the manner provided for in Section 11.02, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given,
such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to
the following clause (b).
(b) The
Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions
of this Section 2.12, each Security delivered under this Indenture upon registration of, transfer of or in exchange for or
in lieu of any other Security shall carry the rights to interest and Additional Amounts, if any, each as accrued and unpaid, and to accrue,
which were carried by such other Security.
Section 2.13 Temporary
Securities. Until definitive Securities of any series are ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities of such series. Temporary Securities shall be substantially in the form of definitive Securities, but may have variations
that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Securities in exchange for temporary Securities. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive Securities.
Section 2.14 Persons
Deemed Owners. The Company, the Trustee, any Agent and any authenticating agent may treat the Person in whose name any Security is
registered as the owner of that Security for the purpose of receiving payments of principal of, premium (if any) or interest on, or any
Additional Amounts with respect to, that Security and for all other purposes. None of the Company, the Trustee, any Agent or any authenticating
agent shall be affected by any notice to the contrary.
Section 2.15 Computation
of Interest. Except as otherwise provided as contemplated by Section 2.01 with respect to the Securities of any series,
interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 2.16 Global
Securities; Book-Entry Provisions. If Securities of a series are issuable in global form as a Global Security, as contemplated by
Section 2.01, then, notwithstanding Section 2.01(j) and the provisions of Section 2.02, any such
Global Security shall represent those of the outstanding Securities of that series as shall be specified therein and may provide that
it shall represent the aggregate amount of outstanding Securities of that series from time to time endorsed thereon and that the aggregate
amount of outstanding Securities of that series represented thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, transfers or redemptions. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in
the amount, of outstanding Securities of that series represented thereby shall be made by the Trustee (i) in such manner and upon
instructions given by such Person or Persons as shall be specified in that Security or in a Company Order to be delivered to the Trustee
pursuant to Section 2.04 or (ii) otherwise in accordance with written instructions or such other written form of instructions
as is customary for the Depositary for that Security, from that Depositary or its nominee on behalf of any Person having a beneficial
interest in that Global Security. Subject to the provisions of Section 2.04 and, if applicable, Section 2.13,
the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person
or Persons specified in that Security or in the applicable Company Order. With respect to the Securities of any series that are represented
by a Global Security, the Company authorizes the execution and delivery by the Trustee of a letter of representations or other similar
agreement or instrument in the form customarily provided for by the Depositary appointed with respect to that Global Security. Any Global
Security may be deposited with the Depositary or its nominee, or may remain in the custody of the Trustee or the Security Custodian therefor
pursuant to a FAST Balance Certificate Agreement or similar agreement between the Trustee and the Depositary. If a Company Order has been,
or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 11.05 and need not be accompanied by an Opinion of Counsel.
Members of, or participants
in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee or the Security Custodian as its custodian, or under that Global Security, and
the Depositary may be treated by the Company, the Trustee or the Security Custodian and any agent of the Company, the Trustee or the Security
Custodian as the absolute owner of that Global Security for all purposes whatsoever. Notwithstanding the foregoing, (i) the registered
Holder of a Global Security of any series may grant proxies and otherwise authorize any Person, including Agent Members and Persons that
may hold interests through Agent Members, to take any action that a Holder of Securities of that series is entitled to take under this
Indenture or the Securities of that series and (ii) nothing herein shall prevent the Company, the Trustee or the Security Custodian
or any agent of the Company, the Trustee, or the Security Custodian from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a beneficial owner of any Security.
Notwithstanding Section 2.08,
and except as otherwise provided pursuant to Section 2.01, transfers of a Global Security shall be limited to transfers of
that Global Security in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial
owners in a Global Security may be transferred in accordance with the rules and procedures of the Depositary. Securities of any series
shall be transferred to all beneficial owners of a Global Security of that series in exchange for their beneficial interests in that Global
Security if, and only if, either (1) the Depositary notifies the Company that it is unwilling or unable to continue as depositary
for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act, at a time when the Depositary
is required to be so registered in order to act as depositary, and, in either case, a successor depositary is not appointed by the Company
within 90 days of such notice, (2) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance
of definitive Securities or (3) a Default or Event of Default has occurred and is continuing with respect to the Securities and the
Trustee shall have so requested.
In connection with any transfer
of a portion of the beneficial interests in a Global Security to beneficial owners pursuant to this Section 2.16, the Registrar
shall reflect on its books and records the date and a decrease in the principal amount of the Global Security in an amount equal to the
principal amount of the beneficial interest in the Global Security to be transferred, and the Company shall execute, and the Trustee on
receipt of a Company Order for the authentication and delivery of Securities shall authenticate and deliver, one or more Securities of
the same series of like tenor and amount.
In connection with the transfer
of all the beneficial interests in a Global Security of any series to beneficial owners pursuant to this Section 2.16, the
Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global
Security, an equal aggregate principal amount of Securities of that series of authorized denominations.
None of the Company, the Trustee,
the Paying Agent or the Registrar will have any responsibility or liability for any aspect of the records relating to, or payments made
on account of, Securities by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to those
Securities, or for any other actions taken or not taken by the Depositary. None of the Company, the Trustee, the Paying Agent or the Registrar
shall be liable for any delay by the related Global Security Holder or the Depositary in identifying the beneficial owners, and each such
Person may conclusively rely on, and shall be protected in relying on, instructions from that Global Security Holder or the Depositary
for all purposes (including with respect to the registration and delivery, and the respective principal amounts, of the Securities to
be issued).
The Company, the Trustee,
the Paying Agent and Security Registrar shall be entitled to deal with the Depositary, and any nominee thereof, that is the registered
Holder of any Global Security for all purposes of this Indenture relating to such Global Security (including the payment of principal,
premium, if any, and interest and Additional Amounts, if any, and the giving of instructions or directions by or to the owner or holder
of a beneficial ownership interest in such Global Security) as the sole Holder of such Global Security and shall have no obligations to
the beneficial owners thereof. None of the Company, the Trustee, the Paying Agent and the Registrar shall have any responsibility or liability
for any acts or omissions of the Depositary with respect to such Global Security, for the records of such Depositary, including records
in respect of beneficial ownership interests in respect of any such Global Security, for any transactions between the Depositary and any
Agent Member or between or among the Depositary, any such Agent Member or any holder or owner of a beneficial interest in such Global
Security, or for any transfers of beneficial interests in any such Global Security.
The provisions of the last
sentence of the third paragraph of Section 2.04 shall apply to any Global Security if that Global Security was never issued
and sold by the Company and the Company delivers to the Trustee the Global Security together with written instructions (which need not
comply with Section 11.05 and need not be accompanied by an Opinion of Counsel) with regard to the cancellation or reduction
in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of the
third paragraph of Section 2.04.
Notwithstanding the provisions
of Section 2.03 and Section 2.12, unless otherwise specified as contemplated by Section 2.01 with
respect to Securities of any series, payment of principal of and premium (if any) and interest on and any Additional Amounts with respect
to any Global Security shall be made to the Person or Persons specified therein.
Section 2.17 CUSIP
Numbers, Etc. The Company in issuing the Securities of any series may use CUSIP, ISIN, Common Code or other similar numbers (if
then generally in use) and, if so, the Trustee shall use CUSIP, ISIN, Common Code or other similar numbers in notices of redemption
as a convenience to Holders of Securities of such series; provided, however, that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Securities of such series or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers printed on the Securities of such series, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change
in the CUSIP, ISIN, Common Code or other similar numbers.
Section 2.18 Original
Issue Discount and Foreign-Currency Denominated Securities. In determining whether the Holders of the required principal amount of
outstanding Securities have concurred in any direction, amendment, supplement, waiver or consent, unless otherwise provided as contemplated
by Section 2.01 with respect to the Securities of any series, (a) the principal amount of an Original Issue Discount
Security of such series shall be the principal amount thereof that would be due and payable as of the date of that determination upon
acceleration of the Maturity thereof pursuant to Section 6.02, and (b) the principal amount of a Security of such series
denominated in a foreign currency shall be the Dollar equivalent, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for that currency, as that rate is certified for customs purposes by the Federal Reserve Bank
of New York (the “Exchange Rate”) on the date of original issuance of that Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent, as determined by the Company by reference to the Exchange
Rate on the date of original issuance of that Security, of the amount determined as provided in (a) above), of that Security.
Article III.
Covenants
Section 3.01 Payment
of Securities. The Company shall promptly pay the principal of, premium, if any, on, and interest and Additional Amounts, if any,
on the Securities on the dates and in the manner provided in the Securities and in this Indenture. Principal, premium, if any, interest
and Additional Amounts, if any, shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance
with this Indenture immediately available funds sufficient to pay all principal, premium and interest and Additional Amounts, if any,
then due and the Trustee or Paying Agent, as the case may be, is not prohibited from paying money to the Holders on that date pursuant
to the terms of this Indenture.
The Company shall pay interest
on overdue principal at the rate specified therefor in the Securities, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
Notwithstanding anything to
the contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or
other similar taxes imposed by the United States of America from principal or interest payments hereunder.
Section 3.02 Reports.
So long as the Securities of any series are outstanding, the Company shall:
(a) furnish
to the Trustee, within 15 days after the Company files the same 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 from time to time by rules and regulations prescribe)
which the Company files with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however,
that any such information, document or report filed with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval (or
EDGAR) system or any successor thereto shall be deemed to be filed with the Trustee; provided, however, that the Trustee
shall have no responsibility whatsoever to determine whether such filing has occurred. 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 actual or constructive
knowledge or notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates);
and
(b) comply
with the other provisions of TIA § 314(a).
Section 3.03 Maintenance
of Office or Agency. The Company will maintain in the United States of America an office or agency for any series of Securities where
such Securities may be presented or surrendered for payment, where the Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture
may be served. The Corporate Trust Office of the Trustee shall be such office or agency of the Company, unless the Company shall designate
and maintain some other office or agency for one or more of such purposes. The Company will give prompt written notice to the Trustee
of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from
time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered
for any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United States of America
for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in
the location of any such other office or agency.
Section 3.04 Corporate
Existence. Subject to Article IV, the Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence.
Section 3.05 Compliance
Certificate. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company an Officers’
Certificate, one of the signatories of which shall be the principal executive officer, the principal financial officer or principal accounting
officer of the Company, stating that in the course of the performance by the signers of their duties as officers of the Company they would
normally have knowledge of any Default or Event of Default and whether or not the signers know of any Default or Event of Default that
occurred during such period. If they do, the certificate shall describe the Default or Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto. The Company also shall comply with TIA § 314(a)(4).
Section 3.06 Statement
by Officers as to Default. So long as Securities of any series are outstanding, the Company shall deliver to the Trustee, within 30
days after the Company becomes aware of the occurrence of any Event of Default with respect to that series, an Officers’ Certificate
setting forth the details of such Event of Default and the action that the Company is taking or proposes to take in respect thereof.
Section 3.07 Additional
Amounts. If the Securities of a series expressly provide for the payment of Additional Amounts, and only in such circumstance, the
Company will pay to the Holder of any Security of that series Additional Amounts as expressly provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any
series or the net proceeds received from the sale or exchange of any Security of any series, that mention shall be deemed to include mention
of the payment of Additional Amounts provided for in this Section 3.07 to the extent that, in that context, Additional Amounts
are, were or would be payable in respect thereof pursuant to the provisions of this Section 3.07, and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where that express mention is not made. Unless otherwise provided pursuant to Section 2.01 with respect
to Securities of any series, if the Securities of a series provide for the payment of Additional Amounts, at least ten days prior to the
first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior
to Maturity, the first day on which a payment of principal and any premium is made), and at least ten days prior to each date of payment
of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’
Certificate, the Company shall furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether that payment of principal
of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series who are United States
Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series.
If any such withholding shall be required, then that Officers’ Certificate shall specify by country the amount, if any, required
to be withheld on those payments to those Holders of Securities, and the Company will pay to that Paying Agent the Additional Amounts
required by this Section 3.07. The Company covenants to indemnify the Trustee and any Paying Agent for and to hold them harmless
against any loss, liability or expense reasonably incurred without gross negligence or willful misconduct on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this
Section 3.07.
Section 3.08 Calculation
of Original Issue Discount. If the Securities are issued with original issue discount, the Company shall file with the Trustee promptly
at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to
such original issue discount as may then be relevant under the Code.
Article IV.
Successors
Section 4.01 Consolidation,
Merger or Sale of Assets. The Company shall not, in a single transaction or through a series of related transactions, consolidate
with or merge with or into any other Person or sell, assign (excluding any assignment solely as collateral for security purposes), transfer,
lease or otherwise dispose of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole,
to any Person, unless:
(a) the
Company shall be the successor or continuing Person or, if the Company is not the successor or continuing Person, the resulting, surviving
or transferee Person (the “Surviving Entity”) is a corporation organized and existing under the laws of
the United States, any State thereof or the District of Columbia that expressly assumes all of the Company’s obligations under the
Securities and this Indenture pursuant to a supplement hereto executed and delivered to the Trustee;
(b) immediately
after giving effect to such transaction or series of related transactions, no Event of Default or Default has occurred and is continuing;
and
(c) the
Company or any such Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel each stating
that such transaction or series of related transactions and any supplement hereto complies with the terms of this Indenture and that all
conditions precedent provided for in this Indenture relating to such transaction have been complied with.
If any consolidation or merger
or any sale, assignment, lease, transfer or other disposition of all or substantially all of its assets occurs in accordance with the
terms hereof, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of the Company under
this Indenture with the same effect as if such Surviving Entity had been named as the Company. The Company shall (except in the case of
a lease) be discharged from all obligations and covenants under this Indenture and any Securities issued hereunder, and may be liquidated
and dissolved.
Article V.
Redemption of Securities
Section 5.01 Applicability
of Article. Redemption of Securities at the election of the Company or otherwise, as permitted or required by any provision of this
Indenture or any Securities, shall be made in accordance with such provision and (except as otherwise provided as contemplated by Section 2.01
with respect to the Securities of any series) this Article V.
Section 5.02 Election
to Redeem; Notice to Trustee. In case of any redemption of any series of Securities at the election of the Company, the Company shall,
upon not later than the earlier of the date that is 10 days prior to the Redemption Date fixed by the Company or the date on which notice
is given to the Holders (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of Securities to be redeemed and shall deliver to the Trustee such documentation and records as shall
enable the Trustee to select the Securities of such series to be redeemed pursuant to Section 5.03.
Section 5.03 Selection
by Trustee of Securities to Be Redeemed. If fewer than all of the Securities of any series are to be redeemed at any time, the Trustee
will, subject to applicable law, select Securities of any series for redemption as follows:
(a) if
the Securities are Global Securities, in accordance with the standard procedures of DTC or any successor Depositary;
(b) if
the Securities are not Global Securities then held by DTC or a successor Depositary, on a pro rata basis, by lot or by any other method
the Trustee deems fair and appropriate; and
(c) if
the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities
exchange on which the Securities are listed.
Section 5.04 Notice
of Redemption. Notice of redemption shall be given in the manner provided for in Section 11.02 not less than 10 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, except that redemption notices may be given more
than 60 days prior to a Redemption Date if such notice is issued in connection with a defeasance of the Securities or a satisfaction and
discharge of this Indenture. The Trustee shall give notice of redemption in the Company’s name and at the Company’s expense;
provided, however, that the Company shall deliver to the Trustee an Officers’ Certificate requesting that the Trustee
give such notice at the Company’s expense and setting forth the information to be stated in such notice as provided in the following
items.
All notices of redemption
shall state:
(a) the
name of the Securities, including series and issue date, interest rate, maturity date and certificate numbers;
(b) the
Redemption Date;
(c) the
Redemption Price (or the method of determination thereof) and the amount of accrued interest and Additional Amounts, if any, to the Redemption
Date payable as provided in Section 5.06;
(d) if
less than all outstanding Securities are to be redeemed, the identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Securities to be redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption;
(e) in
case any Securities are to be redeemed in part only, the notice which relates to such Securities shall state that on and after the Redemption
Date, upon surrender of such Securities, the Holder will receive, without charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed;
(f) that
on the Redemption Date, the Redemption Price (and accrued interest, if any, to the Redemption Date payable as provided in Section 5.06)
will become due and payable upon each such Security, or the portion thereof, to be redeemed, and, unless the Company defaults in making
the redemption payment, that interest and Additional Amounts, if any, on Securities (or the portions thereof) called for redemption will
cease to accrue on and after said date;
(g) the
place or places where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any;
(h) the
name and address of the Paying Agent;
(i) that
Securities called for redemption (other than a Global Security) must be surrendered to the Paying Agent to collect the Redemption Price;
(j) the
CUSIP, ISIN or Common Code number, and that no representation is made as to the accuracy or correctness of the CUSIP, ISIN or
Common Code number, if any, listed in such notice or printed on the Securities; and
(k) the
Section of this Indenture and the paragraph of the Securities pursuant to which the Securities are to be redeemed.
Section 5.05 Deposit
of Redemption Price. Not later than 11:00 a.m. New York City time on the Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 2.06)
an amount of money sufficient to pay the Redemption Price of, and accrued interest and Additional Amounts, if any, on, all the Securities
which are to be redeemed on that date.
Section 5.06 Securities
Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified (together with accrued and unpaid interest and Additional Amounts,
if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price
and accrued interest and Additional Amounts, if any) such Securities shall cease to bear interest and Additional Amounts, if any. Upon
surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued and unpaid interest and Additional Amounts, if any, to the Redemption Date (subject to the rights of Holders
of record on the relevant record date to receive interest and Additional Amounts, if any, due on an interest payment date that is on or
prior to the Redemption Date).
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest
and Additional Amounts, if any, from the Redemption Date at the rate borne by the Securities.
Section 5.07 Securities
Redeemed in Part. Any Security which is to be redeemed only in part (pursuant to the provisions of this Article V) shall
be surrendered at the office or agency of the Company maintained for such purpose pursuant to Section 2.05 (with, if the Company
or the Trustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such Security at the expense of the Company, a new Security
or Securities, of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered, provided that, unless otherwise specified for a series of Securities
pursuant to Section 2.01, each such new Security will be in a principal amount of $1,000 or any integral multiple of $1,000
in excess thereof. Unless otherwise specified for a series of Securities pursuant to Section 2.01, no Securities of $1,000
or less may be redeemed in part.
Article VI.
Defaults and Remedies
Section 6.01 Events
of Default. Except as otherwise specified as contemplated with respect to a particular series by Section 2.01 and specifically
deleted or otherwise modified in or pursuant to the supplemental indenture, Board Resolution, Officers’ Certificate or Company Order
establishing such series of Securities or in the form of Security for such series, an “Event of Default,” wherever
used herein with respect to Securities of any series, occurs if:
(a) the
Company defaults in the payment of any installment of interest on or Additional Amounts, if any, with respect to any Security of that
series under this Indenture when due, continued for 60 days;
(b) the
Company defaults in the payment when due (at Stated Maturity, upon acceleration, redemption, required repurchase or otherwise) of the
principal of, or premium, if any, on the Securities of that series;
(c) the
Company fails for 90 days after written notice specifying such failure and requiring it to be remedied and stating that such notice is
a notice of default pursuant to Section 7.05 to the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities of that series issued under this Indenture to comply with any of the other covenants or agreements
in this Indenture applicable to the Securities of that series or in the Securities of that series;
(d) the
Company fails for 60 days to deposit any sinking fund payment, if any, when due, in respect of any Security of that series; or
(e) (i) the
Company:
(1) commences
a voluntary case or proceeding under any Bankruptcy Law;
(2) consents
to the entry of a judgment, decree or order for relief against it in an involuntary case or proceeding under any Bankruptcy Law;
(3) consents
to the appointment of a Custodian of it or for any substantial part of its property;
(4) makes
a general assignment for the benefit of its creditors; or
(5) consents
to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it;
or takes any comparable action under
any foreign laws relating to insolvency; or
(ii) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Company;
(2) appoints
a Custodian of the Company; or
(3) orders
the winding up or liquidation of the Company;
or any similar relief is granted under
any foreign laws and the order, decree or relief remains unstayed and in effect for 90 days.
Section 6.02 Acceleration.
Except as otherwise provided as contemplated by Section 2.01 with respect to the Securities of such series, if any Event of
Default with respect to any Securities of such series at the time outstanding (other than those of the type described in Section 6.01(e) with
respect to the Company) occurs and is continuing, the Trustee may, and at the direction of the Holders of at least 25% in aggregate principal
amount of outstanding Securities of such series shall, declare the principal of all the Securities of that series, together with all accrued
and unpaid interest and Additional Amounts, if any, and premium, if any, to be due and payable immediately by notice in writing to the
Company specifying the respective Event of Default and that such notice is a notice of acceleration, and the same shall become immediately
due and payable.
Except as otherwise provided
as contemplated by Section 2.01 with respect to the Securities of any series, in the case of an Event of Default with respect
to such series specified in Section 6.01(e) hereof with respect to the Company, the principal of all the Securities of
that series, together with all accrued and unpaid interest and Additional Amounts, if any, and premium, if any, shall become due and payable
immediately without further action or notice by the Trustee or the Holders. Holders may not enforce this Indenture or the Securities except
as provided in this Indenture.
Except as otherwise provided
as contemplated by Section 2.01 with respect to the Securities of any series, at any time after a declaration of acceleration
with respect to the Securities of such series, the Holders of a majority in principal amount of the Securities of that series then outstanding
(by written notice to the Trustee) may, on behalf of the Holders of all the Securities of that series, rescind and cancel such declaration
and its consequences if:
(a) the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction;
(b) all
existing Events of Default with respect to Securities of that series have been cured or waived except nonpayment of principal of and interest
on the Securities of that series that have become due solely by reason of such declaration of acceleration;
(c) to
the extent the payment of such interest is lawful, interest (at the same rate specified in the Securities of such series) on overdue installments
of interest and Additional Amounts, if any, and overdue payments of principal which has become due otherwise than by such declaration
of acceleration has been paid;
(d) the
Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances;
and
(e) in
the event of the cure or waiver of an Event of Default, the Trustee has received an Officers’ Certificate that such Event of Default
has been cured or waived.
Section 6.03 Other
Remedies. If an Event of Default with respect to any series occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of (or premium, if any) or interest or Additional Amounts, if any, on the Securities of such series
or to enforce the performance of any provision of the Securities of such series or this Indenture with respect to such series.
The Trustee may maintain a
proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by
the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are
cumulative. Every right and remedy given by this Article or by law to the Trustee or any Holder may be exercised from time to time,
and as often as deemed expedient, by the Trustee or the Holders, as the case may be.
Section 6.04 Waiver
of Past Defaults. Except as otherwise provided as contemplated by Section 2.01 with respect to the Securities of any series,
the Holders of a majority in principal amount of the then outstanding Securities of such series by written notice to the Trustee may,
on behalf of the Holders of all the Securities of such series, waive, by their consent (including, without limitation consents obtained
in connection with a purchase of, or tender offer or exchange offer for, Securities of such series), an existing Default or Event of Default,
with respect to such series and its consequences or compliance with any provisions except (i) a Default or Event of Default in the
payment of the principal of, or interest, if any, on a Security of such series or (ii) a Default or Event of Default in respect of
any other provision that under Section 9.02 cannot be amended without the consent of each Holder affected. When a Default
or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of Default
or impair any consequent right.
Section 6.05 Control
by Majority. With respect to Securities of any series, the Holders of a majority in principal amount of the outstanding Securities
of such series may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising
any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture
or, subject to Section 7.01 and Section 7.02, that the Trustee determines would involve the Trustee in personal
liability. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it against all losses
and expenses caused by taking or not taking such action.
Section 6.06 Limitation
on Suits. Subject to Section 6.07, a Holder of a Security of any series may not pursue any remedy with respect to this
Indenture or the Securities of such series unless:
(a) such
Holder has previously given to the Trustee written notice stating that an Event of Default is continuing with respect to such series;
(b) Holders
of at least 25% in aggregate principal amount of the outstanding Securities of such series have requested in writing that the Trustee
pursue the remedy;
(c) such
Holders have offered to the Trustee security or indemnity satisfactory to it against any loss, liability or expense;
(d) the
Trustee has not complied with such request within 60 days after receipt of the request and the offer of security or indemnity; and
(e) the
Holders of a majority in principal amount of the outstanding Securities of such series have not given the Trustee a direction that is
inconsistent with such request within such 60-day period.
A Holder may not prejudice the rights of another Holder or to obtain
a preference or priority over another Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether
or not any such use by a Holder prejudices the rights of any other Holders or obtains preference or priority over such other Holders).
Section 6.07 Rights
of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation, Section 6.06),
the right of any Holder to receive payment of principal of and interest, if any, when due on the Securities held by such Holder, on or
after the respective due dates expressed in the Securities, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection
Suit by Trustee. If an Event of Default specified in Section 6.01(a) or Section 6.01(b) occurs and
is continuing with respect to Securities of any series, the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful)
with respect to such series and the amounts provided for in Section 7.07.
Section 6.09 Trustee
May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Company, its Subsidiaries
or its or their respective creditors or properties and, unless prohibited by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make 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 its counsel, and any other amounts due the Trustee under Section 7.07. To the
extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept on
behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money or other property pursuant to this Article VI or, after an Event of Default, any money or
other property is distributable in respect of the Company’s obligations under this Indenture, it shall pay out the money or property
in the following order:
FIRST:
to the Trustee (including any predecessor trustee) for amounts due under Section 7.07;
SECOND:
to Holders for amounts due and unpaid on the Securities in respect of which or for the benefit of which such money has been collected,
for principal, premium, if any, and interest and Additional Amounts, if any, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, premium, if any, and interest and Additional Amounts, if any, respectively;
and
THIRD:
to the Company or to such other party as a court of competent jurisdiction may direct.
The Trustee may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10. At least 15 days before such record date,
the Company shall send to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
Section 6.11 Undertaking
for Costs. 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, a court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in outstanding principal amount of the Securities of any series.
Article VII.
Trustee
Section 7.01 Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise such of 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 such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders
have offered to the Trustee indemnity or security against loss, liability or expense satisfactory to the Trustee.
(b) Except
during the continuance of an Event of Default with respect to the Securities of any series:
(i) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and the Trustee need perform
only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates, opinions or orders furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform on their face 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 paragraphs (b) or (g) of this Section 7.01;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05.
(d) Every
provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section 7.01.
(e) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
(f) Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law or any other provision of this
Indenture.
(g) No
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers.
(h) Unless
otherwise specifically provided in this Indenture, any demand, request or direction from the Company shall be sufficient if evidenced
by a Company Request or Company Order.
(i) 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 unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs,
expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such
request or direction.
Section 7.02 Rights
of Trustee. Subject to Section 7.01:
(a) The
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document (whether in its original, facsimile form or in PDF format) believed by it to be genuine and to have been signed or presented
by the proper party or parties. 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 Officers’ Certificate and/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 an Officers’ Certificate and/or Opinion of Counsel.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(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 the rights
or powers conferred upon it by this Indenture.
(e) The
Trustee may consult with counsel of its selection, and the advice or opinion of counsel shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in reliance thereon.
(f) The
Trustee is not required to make any inquiry or investigation into 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 or document
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if
the Trustee determines to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises
of the Company personally or by agent or attorney, in which case the Company shall be responsible for the reasonable expenses of such
investigation.
(g) The
Trustee is not required to take notice and shall not be deemed to have notice or knowledge of any Default or Event of Default hereunder
with respect to any series of Securities unless a Trust Officer of the Trustee has received notice in writing of such Default or Event
of Default at its Corporate Trust Office from the Company or the Holders of at least 25% in aggregate principal amount of the Securities
of such series then outstanding and such notice references the Securities and this Indenture, and in the absence of any such notice, the
Trustee may conclusively assume that no such Default or Event of Default exists.
(h) The
Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this
Indenture.
(i) In
the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders of Securities, each
representing less than the aggregate principal amount of Securities outstanding required to take any action thereunder, the Trustee, in
its sole discretion may determine what action, if any, shall be taken.
(j) The
Trustee’s rights, privileges, benefits, immunities and protections, including its rights to be indemnified, shall extend to, and
shall be enforceable by, the Trustee’s officers, directors, agents, custodians, attorneys, employees and each other Person employed
to act hereunder and to the Trustee in each of its capacities hereunder; provided, however, only the Trustee, and not any
agent, custodian or other Person employed to act hereunder, shall be held to a prudent person standard upon the occurrence of and during
an Event of Default. Such immunities and protections and right to indemnification, together with the Trustee’s right to compensation,
shall survive the Trustee’s resignation or removal, the discharge of this Indenture and final payments of the Securities.
(k) The
permissive right of the Trustee to take actions permitted by this Indenture shall not be construed as an obligation or duty to do so.
(l) The
Trustee shall have no duty to inquire as to the performance of the Company’s covenants herein.
(m) Any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution of the Company.
(n) 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.
(o) The
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture.
Section 7.03 Individual
Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must comply with Section 7.10 and Section 7.11.
Section 7.04 Trustee’s
Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity, sufficiency or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company’s use or application of the proceeds from the Securities,
and it shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale
of the Securities or in the Securities other than the Trustee’s certificate of authentication. The Trustee shall not be responsible
to make any calculation with respect to any matter under this Indenture. The Trustee shall have no duty to monitor or investigate the
Company’s compliance with or the breach of, or cause to be performed or observed, any representation, warranty, or covenant, or
agreement of any Person, other than the Trustee, made in this Indenture.
Section 7.05 Notice
of Defaults. If a Default with respect to the Securities of any series occurs and is continuing and if a Trust Officer has received
written notice thereof, the Trustee shall send to each Holder of a Security of such series notice of the Default within 90 days after
obtaining such knowledge, unless the Default was already cured or waived. Except in the case of a Default in payment of principal of,
premium, if any, or interest or Additional Amounts, if any, on any Security of any series, the Trustee may withhold the notice if it in
good faith determines that withholding the notice is in the interests of Holders of such series.
Section 7.06 Reports
by Trustee to Holders. Within 60 days after each May 15 beginning with the May 15 following the date of this Indenture and
for so long as the Securities of any series remain outstanding, the Trustee shall send to each Holder of Securities of such series a brief
report dated as of such reporting date that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b). The
Trustee shall also transmit by mail all reports required by TIA § 313(c).
A copy of each report at the
time it is sent to Holders of Securities of any series shall be filed with the SEC and each stock exchange (if any) on which the Securities
of such series are listed. The Company agrees to notify promptly the Trustee in writing whenever the Securities of any series become listed
on any stock exchange and of any delisting thereof.
Section 7.07 Compensation
and Indemnity. The Company shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services
hereunder as the Company and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and
other documents, costs of preparation and giving of notices to Holders, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants
and experts. The Company shall indemnify, defend, protect and hold the Trustee harmless from and against any and all losses, liabilities,
damages, claims, penalties, fines or expenses (including reasonable attorneys’ and agents’ fees and expenses), including taxes
(other than taxes based upon, measured by or determined by the income of the Trustee) (for purposes of this Section 7.07,
“losses”) suffered or incurred by it arising out of or in connection with the acceptance or administration of
this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this Section 7.07)
and of defending itself against any claims (whether asserted by any Holder, the Company, any other Person or otherwise) or liabilities,
except to the extent such losses may be attributable to its gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee
shall provide reasonable cooperation at the Company’s expense in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company shall not be under any obligation to pay for any written settlement
without its consent, which consent shall not be unreasonably delayed, conditioned or withheld. The Company need not indemnify any losses
incurred by the Trustee through the Trustee’s own willful misconduct or gross negligence.
To secure the Company’s
obligations in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected
by the Trustee other than money or property held in trust to pay principal of, interest and Additional Amounts, if any, on particular
Securities.
The Company’s payment
and indemnification obligations pursuant to this Section 7.07, and the Trustee’s lien provided for in this Section 7.07,
shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the Trustee, the termination for any reason
of this Indenture and payment in full of the Securities. When the Trustee incurs expenses after the occurrence of a Default specified
in Section 6.01(e) with respect to the Company, the expenses are intended to constitute expenses of administration under
any Bankruptcy Law.
“Trustee” for
purposes of this Section 7.07 shall include any predecessor Trustee; provided, however, that the negligence, willful misconduct or
bad faith of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
Section 7.08 Replacement
of Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article VII
shall become effective until the acceptance of appointment by the successor Trustee. The Trustee may resign at any time with respect to
the Securities of one or more series by so notifying the Company. The Holders of a majority in principal amount of the then outstanding
Securities of any series may remove the Trustee with respect to the Securities of such series by so notifying the Trustee and may appoint
a successor Trustee. The Company shall remove the Trustee if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged bankrupt or insolvent;
(c) a
receiver or other public officer takes charge of the Trustee or its property; or
(d) the
Trustee otherwise becomes incapable of acting.
If the Trustee resigns or
is removed by the Company or by the Holders of a majority in principal amount of the then outstanding Securities of any series and such
Holders of such series do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for
any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee with respect to such series.
If a successor Trustee with
respect to Securities of any series does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee or the Holders of at least 10% in principal amount of the then outstanding Securities of such series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect to Securities of such series.
If the Trustee with respect
to the Securities of a series fails to comply with Section 7.10, unless the Trustee’s duty to resign is stayed as provided
in TIA § 310(b), any Holder who has been a bona fide Holder of a Security of such series for at least six months may petition, at
the Company’s expense, any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee
with respect to such series.
In case of the appointment
of a successor Trustee with respect to all Securities, each such successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee, without any further act, deed or conveyance, shall have all the rights, power and duties of the retiring Trustee under
this Indenture. The successor Trustee shall give a notice of its succession to Holders. The retiring Trustee shall, upon payment of its
charges and all other amounts payable to it hereunder, promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.
In case of the appointment
of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more (but not all) series shall execute and deliver an indenture supplemental
hereto in which each successor Trustee shall accept such appointment and that (1) shall confer to each successor Trustee all the
rights, powers and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall confirm that all the
rights, powers and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee and (3) shall 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. Nothing
herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. Upon
the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall have all the rights, powers
and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates. On request of the Company or any successor Trustee, such retiring Trustee shall transfer to such successor Trustee all property
held by such retiring Trustee as Trustee with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates. Such retiring Trustees shall, however, have the right to deduct its unpaid fees and expenses, including, without limitation,
reasonable attorneys’ fees and expenses.
Notwithstanding the replacement
of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07, and the Trustee’s
lien provided for in Section 7.07, shall continue for the benefit of the retiring Trustee.
So long as no Event of Default,
or no event which is, or after notice or lapse of time, or both, would become, an Event of Default, shall have occurred and be continuing,
and except with respect to a Trustee appointed by the act of the Holders of a majority in principal amount of then outstanding Securities
of any series, if the Company shall have delivered to the Trustee (1) a Board Resolution of the Company appointing a successor Trustee,
effective as of a date specified therein (which date shall be no sooner than 45 days after the date of such delivery, unless a shorter
period shall be acceptable to the Trustee), and (2) an instrument of acceptance of such appointment, effective as of such date, by
such successor Trustee, then the Trustee shall be deemed removed, the successor Trustee shall be deemed to have been appointed by the
Company and such appointment shall be deemed to have been accepted as contemplated, all as of such date, and all other provisions of this
Section 7.08 shall be applicable to such removal, appointment and acceptance except to the extent inconsistent with this subsection.
Section 7.09 Successor
Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee. The predecessor Trustee shall have no liability for any action or
inaction by any successor Trustee.
In case at the time such successor
or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the
Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture.
Section 7.10 Eligibility;
Disqualification. The Trustee shall at all times satisfy the requirements of TIA § 310(a). The Trustee shall have a combined
capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition. The Trustee shall
comply with TIA § 310(b); provided, however, that there shall be excluded from the operation of TIA § 310(b)(1) any
indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.
Section 7.11 Preferential
Collection of Claims Against Company. The Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed
in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
Article VIII.
Legal Defeasance and Covenant Defeasance
Section 8.01 Option
to Effect Legal Defeasance or Covenant Defeasance. Unless otherwise designated pursuant to Section 2.01, the Securities
of any series shall be subject to Legal Defeasance or Covenant Defeasance pursuant to Section 8.02 or Section 8.03,
in accordance with any applicable requirements provided pursuant to Section 2.01 and upon compliance with the conditions set
forth in this Article VIII or the conditions designated pursuant to Section 2.01. The Company may, at its option
and at any time, elect to have either Section 8.02 or Section 8.03 hereof be applied to all outstanding Securities
of any series so subject to Legal Defeasance or Covenant Defeasance. Any such election shall be evidenced by a Board Resolution of the
Company or in another manner specified as contemplated by Section 2.01 for such Securities. All provisions set forth in this
Article VIII may be amended, supplemented, modified, superseded or deleted pursuant to Section 2.01.
Section 8.02 Legal
Defeasance and Discharge. Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02 with respect to Securities of any series, the Company shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be deemed to have been discharged from its Obligations with respect to all outstanding Securities
of such series on the date such conditions are satisfied (hereinafter, “Legal Defeasance”). For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding
Securities with respect to such series, which shall thereafter be deemed to be “outstanding” only for the purposes
of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (a) through (e) below,
and to have satisfied all its other obligations under the Securities with respect to such series and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions,
which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Securities with
respect to such series to receive, solely from the trust fund described in Section 8.04 and Section 8.05 hereof,
and as more fully set forth in such Sections, payments in respect of the principal of, premium, if any, and interest and Additional Amounts,
if any, on such Securities when such payments are due; (b) the Company’s obligations with respect to such Securities under
Article II and Section 3.01 hereof; (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company’s obligations in connection therewith; (d) the optional redemption provisions, if any, with respect
to such Securities; and (e) this Article VIII. If the Company exercises under Section 8.01 hereof the option
applicable to this Section 8.02, subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
payment of the Securities with respect to such series may not be accelerated because of an Event of Default. Subject to compliance with
this Article VIII, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03 Covenant
Defeasance. Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03
with respect to Securities of any series, the Company shall, with respect to such series of Securities, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be released from its obligations under the covenants contained in Section 3.02
(other than Section 3.02(c)), Section 3.04, Section 3.06, and Section 4.01, and any other
covenants specified pursuant to Section 2.01 with respect to the outstanding Securities of such series, on and after the date
the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”),
and the Securities of such series shall thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders of such series (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed “outstanding” for all other purposes hereunder. For this purpose, Covenant Defeasance
means that, with respect to the outstanding Securities of such series, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby. If the Company exercises under
Section 8.01 hereof the option applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, payment of the Securities of such series may not be accelerated because of an Event of Default
specified in clause (c) of Section 6.01 with respect to the covenants described above.
Section 8.04 Conditions
to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or Section 8.03
hereof to the outstanding Securities of any series.
In order to exercise Legal
Defeasance or Covenant Defeasance with respect to the Securities of any series:
(a) the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Securities of such series, cash in
U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in
amounts as will be sufficient, without consideration of any reinvestment, in the opinion of a nationally recognized investment bank, appraisal
firm, firm of independent public accountants or the chief accounting officer of the Company (in the case of a combination that includes
non-callable Government Securities), to pay the principal of, and interest and Additional Amounts, if any, and premium, if any, on the
outstanding Securities of such series on the stated date for payment or on the applicable Redemption Date, as the case may be, and the
Company must specify whether the Securities of such series are being defeased to such stated date for payment or to a particular Redemption
Date;
(b) in
the case of Legal Defeasance, the Company must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (and
subject to customary assumptions and exclusions) confirming that: (a) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling; or (b) since the date of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the outstanding
Securities of such series will not recognize gain or loss for federal income tax purposes as a result of such Legal Defeasance and shall
be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in
the case of Covenant Defeasance, the Company must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (and
subject to customary assumptions and exclusions) confirming that Holders of the outstanding Securities of such series shall not recognize
gain or loss for federal income tax purposes as a result of such Covenant Defeasance and shall be subject to federal income tax in the
same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no
Default or Event of Default has occurred and is continuing with respect to the Securities of such series on the date of such deposit (other
than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);
(e) such
Legal Defeasance or Covenant Defeasance will not result in a breach of, or constitute a default under, any material agreement or instrument
(other than this Indenture) to which the Company is a party or by which the Company is bound;
(f) the
Company must deliver to the Trustee an Officers’ Certificate stating that such deposit was not made by the Company with the intent
of preferring the Holders of Securities of such series over the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(g) the
Company must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05 Deposited
Cash and Government Securities to be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.06 hereof, all
cash and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee),
(collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04
hereof in respect of the outstanding Securities of such series shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities of such series and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as Paying Agent) as the Trustee may determine, to the Holders of Securities of such series of all sums due and to become
due thereon in respect of principal, premium, if any, interest and Additional Amounts, if any, but such cash and securities need not be
segregated from other funds except to the extent required by law.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities
deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the outstanding Securities of such series.
Anything in this Article VIII
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any
cash or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized independent registered public accounting firm or the chief accounting officer of the Company, in each case expressed in a written
certification thereof delivered to the Trustee (which may be the certification delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment
to Company. Any cash or non-callable Government Securities deposited with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of, premium, if any, on, or interest or Additional Amounts, if any, on, any Security of any
series and remaining unclaimed for two years after such principal, premium, if any, or interest or Additional Amounts, if any, has become
due and payable shall be paid to the Company on its request (unless an abandoned property law designates another Person) or (if then held
by the Company) shall be discharged from such trust; and such Holder shall thereafter, as an unsecured creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such cash and securities, and all liability
of the Company as Trustee thereof, shall thereupon cease.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or non-callable Government Securities in accordance with Section 8.02,
Section 8.03 or Section 8.05 hereof, as the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture
and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.04
hereof until such time as the Trustee or Paying Agent is permitted to apply all such cash and securities in accordance with Section 8.02,
Section 8.03 or Section 8.05 hereof, as the case may be; provided, however, that, if the Company
makes any payment of principal of, premium, if any, on, or interest or Additional Amounts, if any, on, any Security of such series following
the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such series to receive such payment
from the cash and securities held by the Trustee or Paying Agent.
Article IX.
Amendments
Section 9.01 Without
Consent of Holders. Except as otherwise provided as contemplated by Section 2.01 with respect to the Securities of any
series, the Company, when authorized by a Board Resolution of Company, and the Trustee may amend or supplement this Indenture or the Securities
of any one or more series without notice to or consent of any Holder:
(a) to
cure any ambiguity, omission, defect or inconsistency that does not adversely affect Holders of Securities of the relevant series in any
material respect;
(b) to
provide for the assumption of the Company’s obligations to Holders of Securities of any series in the case of a consolidation or
merger or sale, assignment, transfer, lease or other disposition of all or substantially all of the consolidated assets of the Company
and its Subsidiaries, taken as a whole, in each case that is permitted under this Indenture;
(c) to
provide for any Guarantees of Securities of any series; to provide for any security for Securities of any series or for any such Guarantees;
or to modify or release any such Guarantees or security in compliance with the terms of this Indenture and the supplemental indenture
or other instrument that provided for such Guarantees or security;
(d) to
comply with requirements of the SEC in order to maintain the qualification of this Indenture under the Trust Indenture Act;
(e) to
add covenants for the benefit of the Holders to the Securities of any series or to surrender any rights the Company has under this Indenture;
(f) to
add any additional Events of Default with respect to all or any series of the Securities (and, if any such Event of Default is applicable
to less than all series of Securities, specifying the series to which such Event of Default is applicable);
(g) to
add circumstances under which the Company will pay additional interest on the Securities of the relevant series;
(h) to
make any change that would provide any additional rights or benefits to the Holders of Securities of any series or that does not adversely
affect the rights under this Indenture of any such Holder in any material respect;
(i) to
conform the text of this Indenture or any Securities to the description thereof in any prospectus or prospectus supplement of the Company
with respect to the offer and sale of Securities of any series, to the extent that such provision is inconsistent with a provision of
this Indenture or the Securities;
(j) to
provide for the issuance of and establish the form or terms of Securities of any series as permitted by Section 2.01;
(k) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(l) to
comply with the rules of any applicable Depositary;
(m) to
change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective
only when there is no outstanding Security of any series created prior to the execution of such amendment or supplemental indenture that
is adversely affected in any material respect by such change in or elimination of such provision;
(n) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the Legal Defeasance,
Covenant Defeasance or satisfaction and discharge of any series of Securities pursuant to Article VIII or Article X;
provided, however, that any such action shall not adversely affect the interest of the Holders of Securities of such series
or any other series of Securities in any material respect; or
(o) to
evidence and provide for the acceptance under this Indenture of 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 necessary to provide for or facilitate the administration of the trusts
under this Indenture.
After an amendment under this
Indenture becomes effective, the Company is required to give to the Holders of each Security affected thereby a notice briefly describing
such amendment. However, the failure to give such notice to all the Holders of each Security affected thereof, or any defect therein,
will not impair or affect the validity of the amendment or supplemental indenture under this Section 9.01.
Section 9.02 With
Consent of Holders. Except as otherwise provided as contemplated by Section 2.01 with respect to the Securities of any
series, and except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture
or the Securities of any one or more series with the consent (including consents obtained in connection with a purchase of, or a tender
offer or exchange offer for, Securities) of the Holders of a majority in principal amount of the then outstanding Securities of each series
affected by such amendment or supplement (acting as separate classes).
Upon the request of the Company,
accompanied by a Board Resolution of the Company authorizing such amendment or supplement, and upon the filing with the Trustee of evidence
of the consent of the Holders as aforesaid, the Trustee shall, subject to Section 9.06, join with the Company in the execution
of such amendment or supplemental indenture.
Except as otherwise provided
as contemplated by Section 2.01 with respect to the Securities of any series, the Holders of a majority in principal amount
of the then outstanding Securities of one or more series or of all series affected by such waiver (acting as separate classes) may waive
compliance in a particular instance by the Company with any provision of this Indenture with respect to Securities of such series (including
waivers obtained in connection with a purchase of, or a tender offer or exchange offer for, Securities of such series).
However, except as otherwise
provided as contemplated by Section 2.01 with respect to the Securities of any series, without the consent of each Holder
of Securities of such series affected, an amendment, supplement or waiver may not (with respect to any Securities of such series held
by a non-consenting Holder):
(a) make
any change in the percentage of principal amount of Securities of that series whose Holders must consent to an amendment, supplement or
waiver or to make any change in this provision;
(b) reduce
any rate of interest or change the time for payment of interest on the Securities of that series;
(c) reduce
the principal amount of the Securities of that series or change their Stated Maturity;
(d) make
payments on the Securities of that series payable in currency other than as originally stated in the Securities of that series;
(e) reduce
the amount payable upon, including any premium payable upon, the optional or mandatory redemption or repurchase of any Security of that
series or change the time (other than amendments related to notice provisions) at which any Security of that series may be redeemed or
required to be repurchased;
(f) change
the provisions relating to the waiver of past Defaults or impair the Holder’s right to institute suit for the enforcement of any
payment on the Securities of that series (other than as permitted in clause (g) below); or
(g) waive
a continuing Default or Event of Default regarding any principal or interest payment on the Securities of that series (except a rescission
of acceleration of the Securities by Holders of at least a majority in aggregate principal amount of the then outstanding Securities of
that series and a waiver of the payment default that resulted from such acceleration).
It shall not be necessary
for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance of the proposed amendment.
A supplemental indenture that
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one
or more particular series of Securities, or which modifies the rights of the Holders of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the Holders of any other series.
A consent to any amendment
or waiver under this Indenture by any Holder of the Securities given in connection with a tender of such Holder’s Securities will
not be rendered invalid by such tender. After an amendment under this Section 9.02 becomes effective, the Company shall give
to Holders of each Security affected thereby a notice briefly describing such amendment. The failure to give such notice to all Holders
of each Security affected thereby, or any defect therein, shall not impair or affect the validity of an amendment, supplemental indenture
or waiver under this Section 9.02.
Section 9.03 Compliance
with Trust Indenture Act. Every amendment or supplement to this Indenture or the Securities shall comply with the Trust Indenture
Act of 1939 as then in effect.
Section 9.04 Revocation
and Effect of Consents and Waivers. A consent to an amendment or a waiver by a Holder of a Security shall be in writing and bind the
Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent or waiver is not made on the Security. However, any such Holder or subsequent Holder may revoke
the consent or waiver as to such Holder’s Security or portion of the Security if the Trustee receives the notice of revocation before
the date the amendment or waiver becomes effective. After an amendment or waiver becomes effective with respect to a series of Securities,
it shall bind every Holder of Securities of such series.
For purposes of this Indenture,
the written consent of the Holder of a Global Security shall be deemed to include any consent delivered by an Agent Member by electronic
means in accordance with the Automated Tender Offer Procedures system or other customary procedures of, and pursuant to authorization
by, DTC.
The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. The Trustee may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders of Securities of any series entitled to join in the giving, making or taking of
(i) any notice pursuant to Section 6.01(c) of any Default, (ii) any declaration of acceleration pursuant to
Section 6.02, (iii) any request to institute proceedings pursuant to Section 6.06(b), or (iv) any direction
referred to in Section 6.05, in each case with respect to such series. If a record date is so fixed, then notwithstanding
the second preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall become valid or effective more than 180 days after such record
date.
Section 9.05 Notation
on or Exchange of Securities. If an amendment changes the terms of a Security, the Trustee may require the Holder of the Security
to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms and return it
to the Holder. Alternatively, if the Company so determines, the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall
not affect the validity of such amendment.
Section 9.06 Trustee
To Sign Amendments. The Trustee shall sign any amendment or supplement authorized pursuant to this Article IX if the amendment
does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall receive indemnity or security satisfactory to it and shall receive, and (subject to Section 7.01)
shall be fully protected in conclusively relying upon, an Officers’ Certificate and an Opinion of Counsel, each stating that the
execution of such amendment is authorized or permitted by this Indenture, and that such amendment or supplement is the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to customary exceptions.
Article X.
Satisfaction and Discharge
Section 10.01 Satisfaction
and Discharge. This Indenture will be discharged and will cease to be of further effect as to all Securities of any series issued
hereunder (except as to surviving rights of registration of transfer or exchange of such Securities and as otherwise specified hereunder),
when:
(a) either:
(i) all
Securities of such series that have been authenticated, except lost, stolen or destroyed Securities that have been replaced or paid and
Securities of such series for whose payment money has been deposited in trust and thereafter repaid to the Company, have been delivered
to the Trustee for cancellation; or
(ii) all
Securities of such series that have not been delivered to the Trustee for cancellation have become due and payable or will become due
and payable within one year by reason of the giving of a notice of redemption or otherwise and the Company has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of Securities of such series, cash
in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities,
in amounts as will be sufficient, without consideration of any reinvestment, in the opinion of a nationally recognized investment bank,
appraisal firm, firm of independent public accountants or the chief accounting officer of the Company (in the case of a combination that
includes non-callable Government Securities), to pay and discharge the entire indebtedness on such Securities not delivered to the Trustee
for cancellation for principal, premium, if any, and accrued interest and Additional Amounts, if any, to the date of maturity or redemption;
(b) no
Default or Event of Default with respect to such series has occurred and is continuing on the date of the deposit (other than a Default
or Event of Default resulting from the borrowing of funds to be applied to such deposit and the granting of liens to secure such borrowing)
and the deposit will not result in a breach of, or constitute a default under, any other instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(c) the
Company has paid or caused to be paid all sums payable by it hereunder with respect to such series pursuant to Section 7.07;
(d) the
Company has delivered irrevocable instructions to the Trustee hereunder to apply the deposited money toward the payment of such Securities
at fixed maturity or the Redemption Date, as the case may be; and
(e) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, which state that all conditions precedent
under this Indenture relating to the satisfaction and discharge of this Indenture with respect to such series have been satisfied.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities
deposited pursuant to Section 10.01 hereof or the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the outstanding Securities of such series.
Notwithstanding the satisfaction
and discharge of this Indenture with respect to Securities of any series, the obligations of the Company to the Trustee under Section 7.07
and, if money shall have been deposited with the Trustee pursuant to Section 10.01(a)(ii) with respect to such Securities,
the obligations of the Company of such series under Section 3.03 and the obligations of the Trustee under Section 10.02
with respect to such Securities, shall survive such satisfaction and discharge.
Section 10.02 Application
of Trust Money. All money deposited with the Trustee pursuant to Section 10.01 with respect to Securities of any series
shall be held in trust and applied by it, in accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 10.01 (and held by it or any Paying Agent) for the payment of Securities
subsequently converted shall be returned to the Company upon Company Request, to the extent originally deposited by the Company. The
Company may direct by a Company Order the investment of any money deposited with the Trustee pursuant to Section 10.01, without
distinction between principal and income, in (1) United States Treasury Securities with a maturity of one year or less or (2) a
money market fund that invests solely in short term United States Treasury Securities, and from time to time the Company may direct the
reinvestment of all or a portion of such money in other securities or funds meeting the criteria specified in preceding clauses (1) or
(2) of this sentence.
Article XI.
Miscellaneous
Section 11.01 Trust
Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required
to be included in this Indenture by the TIA, the provision required by the TIA shall control. If any provision of this Indenture modifies
or excludes any provision of the TIA which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture
as so modified or excluded, as the case may be.
Section 11.02 Notices.
Any notice or communication shall be in writing (including facsimile and electronic transmission in PDF format) and delivered in person,
by facsimile (or other electronic means), by overnight air courier guaranteeing next Business Day delivery or mailed by first-class mail
addressed as follows:
if to the Company:
901 S. Central Expressway
Richardson,
Texas 75080
Attn: General Counsel
Fax: 972-498-9615
Email: randyh@fossil.com
if to the Trustee:
2 North LaSalle Street, Suite 700
Chicago, IL 60602
Attn: Corporate Trust Division – Corporate Finance Unit
All notices and communications
made, given, furnished or filed with or to the Trustee or the Company shall be deemed to have been duly made, given furnished or filed:
(i) at the time delivered by hand, if personally delivered; (ii) when receipt is acknowledged, if sent by facsimile (or other
electronic means); (iii) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing
next Business Day delivery; and (iv) five calendar days after being deposited in the mail, postage prepaid, if mailed; except in
the case of notices or communications given to the Trustee, which shall be effective only upon actual receipt by the Trustee at its Corporate
Trust Office.
The Company or the Trustee
by notice to the others may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
given to a registered Holder shall be sent to the Holder at the Holder’s address as it appears on the registration books of the
Registrar and shall be sufficiently given if so given within the time prescribed. The Registrar shall provide the Company with address
information with respect to the Holders as promptly as practicable following the Company’s request therefor. Any notice or communication
shall also be mailed to any Person described in TIA § 313(c), to the extent required by the TIA.
Failure to give a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication
is given in the manner provided above, it is duly given, whether or not the addressee receives it.
Section 11.03 Communication
by Holders with other Holders. Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA
§ 312(c).
Section 11.04 Certificate
and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take or refrain from taking
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officers’ Certificate (which shall include the statements set forth in Section 11.05 hereof) stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed action or refraining therefrom have been complied with; and
(b) an
Opinion of Counsel (which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent, if any, have been complied with.
Section 11.05 Statements
Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided
for in this Indenture (except for the Certificate specified in Section 3.05) shall include:
(a) a
statement that the individual 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 individual, 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 individual, such covenant or condition has been complied with.
Section 11.06 Form of
Documents Delivered to Trustee.
In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion
of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, and may state that it is so based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations
by, an Officer or Officers of the Company stating that the information with respect to such factual matters is in possession of the Company,
unless such counsel knows, or in the exercise of reasonably care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Section 11.07 When
Securities Disregarded. In determining whether the Holders of the requisite principal amount of outstanding Securities of any series
are present at a meeting of Holders of Securities for quorum purposes or have consented to or voted in favor of or concurred in any request,
demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent, waiver, amendment or modification, only Securities that a Trust Officer of the Trustee actually knows are
so owned shall be so disregarded. Also, subject to the foregoing, only Securities outstanding at the time shall be considered in any
such determination.
Section 11.08 Rules by
Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Registrar
and the Paying Agent may make reasonable rules for their functions.
Section 11.09 Legal
Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions
are authorized or required to be closed in New York, New York. If a payment date is a Legal Holiday, payment shall be made on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
Section 11.10 Governing
Law; Waiver of Jury Trial; Submission to Jurisdiction. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THERETO (OTHER THAN N.Y. GENERAL OBLIGATIONS LAW
§ 5-1401). EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, 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 INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
The Company irrevocably consents and submits, for
itself and in respect of any of its assets or property, to the nonexclusive jurisdiction of any court of the State of New York or any
United States Federal court sitting, in each case, in the Borough of Manhattan, The City of New York, New York, United States of America,
and any appellate court from any thereof in any suit, action or proceeding that may be brought in connection with this Indenture or the
Securities, and waives any immunity from the jurisdiction of such courts. The Company irrevocably waives, to the fullest extent permitted
by law, any objection to any such suit, action or proceeding that may be brought in such courts whether on the grounds of venue, residence
or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Company agrees, to
the fullest extent that it lawfully may do so, that final judgment in any such suit, action or proceeding brought in such a court shall
be conclusive and binding upon the Company, and waives, to the fullest extent permitted by law, any objection to the enforcement by any
competent court in the Company’s jurisdiction of organization of judgments validly obtained in any such court in New York on the
basis of such suit, action or proceeding.
Section 11.11 No
Recourse Against Others. No director, manager, officer, employee, incorporator, member, partner, stockholder or other owner of Capital
Stock of the Company, as such, will have any liability for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder of Securities by accepting a Security
waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities.
Section 11.12 Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 11.13 Multiple
Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. One signed copy is enough to prove this Indenture. The exchange of copies of this Indenture and of signature
pages by facsimile or PDF or other electronically imaged (such as DocuSign or Adobe Sign) signature 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 or other electronically imaged (such as DocuSign or Adobe
Sign) signature transmission shall be deemed to be their original signatures for all purposes.
The
exchange of copies of this Indenture and of signature pages by facsimile or PDF or other electronically imaged (such as DocuSign
or Adobe Sign) signature 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. The exchange of copies of this Indenture and of signature pages that
are executed by manual signatures that are scanned, photocopied or faxed or by other electronic signing created on an electronic platform
(such as DocuSign) or by digital signing (such as Adobe Sign), in each case that is approved by the Trustee, shall constitute effective
execution and delivery of this Indenture for all purposes. Signatures of the parties hereto that are executed by manual signatures that
are scanned, photocopied or faxed or by other electronic signing created on an electronic platform (such as DocuSign) or by digital signing
(such as Adobe Sign), in each case that is approved by the Trustee, shall be deemed to be their original signatures for all purposes of
this Indenture as to the parties hereto and may be used in lieu of the original.
Anything
in this Indenture or the Securities to the contrary notwithstanding, for the purposes of the transactions contemplated by this
Indenture, any Security and any document to be signed in connection with the Indenture or any Security (including any Security and amendments,
supplements, waivers, consents and other modifications, Officers’ Certificates, Company Orders and Opinions of Counsel and other
issuance, authentication and delivery documents) or the transactions contemplated hereby may be signed by manual signatures that are scanned,
photocopied or faxed or other electronic signatures created on an electronic platform (such as DocuSign) or by digital signature (such
as Adobe Sign), in each case that is approved by the Trustee, and contract formations on electronic platforms approved by the Trustee,
and the keeping of records in electronic form, are hereby authorized, and each shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as the case may be.
Section 11.14 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 11.15 No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement
of the Company or any Subsidiary or any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 11.16 Table
of Contents; Headings. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any
of the terms or provisions hereof.
Section 11.17 Force
Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes or other labor
disputes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts
of God, and interruptions, loss or malfunctions of utilities or transportation, communications or computer (software and hardware) services,
actual or threatened epidemics, pandemics, disease, act of any government, governmental authority or police or military authority, declared
or threatened state of emergency, legal constraint, the interruption, loss or malfunction of utilities or transportation, communications
or computer systems, or any other similar events beyond its reasonable control; it being understood 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 11.18 USA
PATRIOT ACT. The parties hereto acknowledge that in accordance with Section 326 of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001 (the “Patriot Act”),
the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to
obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account
with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order
for the Trustee to satisfy the requirements of the Patriot Act.
Section 11.19 Electronic
Means.
"Electronic Means"
shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable
authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee
as available for use in connection with its services hereunder.
The Trustee shall have the
right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant
to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency
certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing
specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company whenever a person is to
be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in
its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling.
The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the
Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate
provided to the Trustee have been sent by such Authorized Officer. The Company shall be responsible for ensuring that only Authorized
Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard
the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company.
The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon
and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction.
The Company agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties;
(ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the
Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that
the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable
degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning
of any compromise or unauthorized use of the security procedures.
[Remainder of Page Intentionally Left
Blank; Signature Pages to Follow.]
IN
WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
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FOSSIL GROUP, INC.
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By:
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/s/ Sunil M. Doshi
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Name:
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Sunil M. Doshi
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Title:
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Senior Vice President, Chief Financial Officer and Treasurer
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Signature Page to
Indenture
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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/s/ Lawrence M. Kusch
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Name:
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Lawrence M. Kusch
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Title:
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Vice President
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Signature Page to
Indenture
Exhibit 4.2
Execution
Version
FOSSIL GROUP, INC.
$150,000,000
7.00% SENIOR NOTES DUE 2026
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 8, 2021
To
INDENTURE
Dated as of November 8, 2021
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
TABLE OF CONTENTS
Page
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ARTICLE I
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DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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Section 1.01.
Certain Definitions
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1
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Section 1.02.
Other Definitions
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3
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Section 1.03.
Incorporation by Reference of Trust Indenture Act
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3
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ARTICLE II
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APPLICATION OF SUPPLEMENTAL INDENTURE AND CREATION, FORMS, TERMS AND CONDITIONS OF NOTES
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3
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Section 2.01.
Application of this Supplemental Indenture
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3
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Section 2.02.
Creation of the Notes
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4
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Section 2.03.
Form of the Notes
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5
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Section 2.04.
Terms and Conditions of the Notes
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5
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ARTICLE III
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REDEMPTION
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7
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Section 3.01.
Optional Redemption
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7
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Section 3.02.
Selection by Trustee of Notes to be Redeemed
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8
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Section 3.03.
Open Market Repurchases
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8
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ARTICLE IV
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COVENANTS
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9
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Section 4.01.
Reporting
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9
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Section 4.02.
Consolidation, Merger or Sale of Assets
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9
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Section 4.03.
Exchange Listing
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10
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ARTICLE V
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EVENTS OF DEFAULT
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10
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Section 5.01.
Events of Default; Remedies
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10
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Section 5.02.
Events of Default
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11
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Section 5.03.
Acceleration
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12
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Section 5.04.
Other Specified Remedies
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13
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Section 5.05.
Limitation on Suits
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13
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Section 5.06.
Collection Suit by Trustee
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14
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ARTICLE VI
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MISCELLANEOUS
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14
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Section 6.01.
Ratification of Indenture
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14
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Section 6.02.
Trust Indenture Act Controls
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14
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Section 6.03.
Notices
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14
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Section 6.04.
Governing Law
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14
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Section 6.05.
Successors
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14
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Section 6.06.
Multiple Originals
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15
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Section 6.07.
Headings
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16
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Section 6.08.
Trustee Not Responsible for Recitals
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16
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Section 6.09.
Paying Agent and Registrar
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16
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Section 6.10.
Benefits of Supplemental Indenture
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16
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Section 6.11.
No Personal Liability
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16
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Section 6.12.
No Adverse Interpretation of Other Agreements
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16
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Section 6.13.
Severability
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17
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Section 6.14.
Language of Notices, Etc
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17
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Section 6.15.
Scope of this Supplemental Indenture
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17
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Section 6.16.
Covenants not Applicable
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17
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This FIRST SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”), by and between FOSSIL GROUP, INC., a Delaware corporation (the “Company”), and THE BANK
OF NEW YORK MELLON, N.A., as trustee (the “Trustee”), is made and entered into as of this 8th day of November, 2021.
RECITALS
WHEREAS, the Company and the Trustee have heretofore
executed and delivered an indenture, dated as of November 8, 2021 (the “Base Indenture”), providing for the issuance
by the Company from time to time of its debt securities to be issued in one or more series;
WHEREAS, Sections 2.01 and 9.01 of the Base Indenture
provide, among other things, that the Company and the Trustee may, without the consent of Holders, enter into indentures supplemental
to the Base Indenture to provide for the issuance of and establish the form or terms of Securities of any series;
WHEREAS, the Company intends by this Supplemental
Indenture to provide for the issuance of a new series of Securities to be designated as the “7.00% Senior Notes due 2026”
(the “Notes”) and to establish the form and terms thereof;
WHEREAS, the Company has requested and hereby requests
that the Trustee join with it in the execution of this Supplemental Indenture;
WHEREAS, pursuant to Section 9.01(j) of
the Base Indenture, the Trustee and the Company are authorized to execute and deliver this Supplemental Indenture to provide for the issuance
of and establish the form and terms of the Notes, without notice to or the consent of any Holder of Securities; and
WHEREAS, all acts and things necessary to make
the Notes, when executed by the Company and authenticated and delivered by the Trustee, issued upon the terms and subject to the conditions
in this Supplemental Indenture and in the Base Indenture and delivered as provided in the Indenture against payment therefor, valid, binding
and legal obligations of the Company according to their terms, and all actions required to be taken by the Company to make this Supplemental
Indenture a valid, binding and legal agreement of the Company, have been done and performed.
NOW, THEREFORE, in consideration of the premises
and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.
Certain Definitions.
Section 1.01 of the Base Indenture is hereby
amended by adding the following definitions in their proper alphabetical order which, in the event of a conflict with the definition of
terms in the Base Indenture, shall supersede and replace the corresponding definitions in the Base Indenture. Capitalized terms used but
not defined herein have the meanings ascribed to such terms in the Base Indenture. The rules of construction set forth in Section 1.04
of the Base Indenture shall be applied hereto as if set forth in full herein, except that unless the context indicates otherwise, references
in this Supplemental Indenture to an Article or Section refer to an Article or Section of this Supplemental Indenture,
as the case may be.
“Applicable Premium” means,
with respect to any Note on any Redemption Date prior to November 30, 2023, the greater of:
(1) 1.0% of the principal amount of the Note;
and
(2) the excess of:
(a) the present value at such Redemption
Date of (i) the Redemption Price of the Note at November 30, 2023 (such Redemption Price being set forth in the table appearing
in Section 3.01(a)) plus (ii) all required interest payments due on the Note through November 30, 2023 (excluding
accrued but unpaid interest to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date
plus 50 basis points discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months),
over
(b) the principal amount of the
Note.
“Indenture” means the Base Indenture,
as supplemented by this Supplemental Indenture and by any subsequent supplemental indentures applicable to this Supplemental Indenture
or to the Notes, together with those terms made part of the Indenture by, or by reference to, the TIA.
“Treasury Rate” means, as of
any Redemption Date, the yield to maturity as of the time of computation of United States Treasury securities with a constant maturity
(as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least
two Business Days prior to the Redemption Date (or, if such Statistical Release is no longer published, any publicly available source
of similar market data)) most nearly equal to the period from the Redemption Date to November 30, 2023; provided, however, that if
the period from the Redemption Date to November 30, 2023 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be used.
Section 1.02.
Other Definitions.
In addition to the terms defined elsewhere in this
Supplemental Indenture, the following terms are defined in this Supplemental Indenture where indicated below:
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Term
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Defined in Supplemental Indenture Section
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“Additional Notes”
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2.04(f)
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“Initial Notes”
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2.02
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“Interest Payment Date”
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2.04(c)
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“Maturity Date”
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2.04(b)
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“Regular Record Date”
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2.04(c)
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“Surviving Entity”
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4.02(a)
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Section 1.03.
Incorporation by Reference of Trust Indenture Act.
The Indenture is subject to the provisions of the
TIA, which are incorporated by reference in and made a part of the Indenture. The following TIA terms have the following meanings:
“Commission” means the Securities
and Exchange Commission.
“indenture securities” means
the Notes.
“indenture security holder”
means a Holder.
“indenture to be qualified”
means the Indenture.
“indenture trustee” or “institutional
trustee” means the Trustee.
“obligor” on the indenture securities
means the Company and any other obligor on the indenture securities.
All other TIA terms used in the Indenture that
are defined by the TIA, defined by TIA reference to another statute or defined by SEC rules promulgated under the TIA have the meanings
assigned to them by such definitions.
ARTICLE II
APPLICATION OF SUPPLEMENTAL INDENTURE
AND CREATION, FORMS, TERMS AND CONDITIONS OF NOTES
Section 2.01.
Application of this Supplemental Indenture.
This Supplemental Indenture supplements, and to
the extent inconsistent therewith, replaces, the provisions of the Base Indenture, to which provisions reference is hereby made.
Notwithstanding any other provision of this Supplemental
Indenture, the provisions of this Supplemental Indenture, including the covenants in this Supplemental Indenture, are expressly and solely
for the benefit of the Holders of the Notes. The Notes constitute a separate series of Securities as provided in Section 2.01 of
the Base Indenture. All Initial Notes and Additional Notes, if any, shall be treated as a single class for all purposes of the Indenture,
including waivers, amendments, and redemptions.
The changes, modifications and supplements to the
Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, and shall be
deemed expressly included in this Supplemental Indenture solely for the benefit of, the Notes (which shall be initially in the aggregate
principal amount of $150,000,000) and shall not apply to any other series of Securities that has been or may be issued under the Base
Indenture unless a supplemental indenture with respect to such other series of Securities specifically incorporates such changes, modifications
and supplements.
Section 2.02.
Creation of the Notes.
(a) In
accordance with Section 2.01 of the Base Indenture, the Company hereby creates the Notes as a separate series of its Securities
issued pursuant to the Base Indenture. The aggregate principal amount of Notes that may be authenticated and delivered under this Supplemental
Indenture is not limited. The Notes shall be issued initially in an aggregate principal amount of $150,000,000 (the “Initial
Notes”).
(b) With
respect to any Additional Notes, there shall be (i) set forth or determined in the manner provided in an Officers’ Certificate
or (ii) established in one or more indentures supplemental to the Indenture, prior to the issuance of such Additional Notes:
(i) the
aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to the Indenture; and
(ii)
the issue date (and the corresponding date from which interest shall accrue thereon and the first interest payment date therefor) and
the CUSIP or ISIN number of such Additional Notes.
Section 2.03.
Form of the Notes.
The Depositary for the Notes shall initially be DTC. The Notes shall
each be initially issued in the form of a Global Security, duly executed by the Company and authenticated by the Trustee, which shall
be deposited with the Trustee as custodian for DTC and registered in the name of “Cede & Co.,” as the nominee of
DTC. The Notes shall be substantially in the form of Exhibit A attached hereto. So long as DTC, or its nominee, is the registered
owner of a Global Security, DTC or its nominee, as the case may be, shall be considered the sole owner or Holder of the Notes represented
by such Global Security for all purposes under the Indenture and under such Notes. Ownership of beneficial interests in such Global Security
shall be shown on, and transfers thereof will be effective only through, records maintained by DTC or its nominee (with respect to beneficial
interests of participants) or by participants or Persons that hold interests through participants (with respect to beneficial interests
of beneficial owners). Notwithstanding the third sentence of the third paragraph of Section 2.16 of the Base Indenture, Notes shall
be issued and delivered in physical, certificated form to all beneficial owners of the any Global Security representing Notes if, and
only if:
(a) DTC
notifies the Company at any time that DTC is unwilling or unable to continue as depositary for such Global Security;
(b) DTC
ceases to be registered as a clearing agency under the Exchange Act; or
(c) an
Event of Default has occurred and is continuing.
Section 2.04.
Terms and Conditions of the Notes.
The Notes shall be governed by all the terms and
conditions of the Indenture, including this Supplemental Indenture. Except as expressly specified herein, each of the provisions of the
Base Indenture shall apply to the Notes. In particular, the following provisions shall be terms of the Notes:
(a) Title
and Conditions of the Notes. The title of the Notes shall be as specified in the recitals; and the aggregate principal amount of
the Initial Notes shall be $150,000,000.
(b) Stated
Maturity. The Notes shall mature, and the principal of the Notes shall be due and payable to the Holders thereof, together with all
accrued and unpaid interest thereon, on November 30, 2026 (the “Maturity Date”).
(c) Payment
of Principal and Interest. All principal of and interest on the Notes shall be payable in U.S. Dollars. The Notes shall bear
interest at 7.00% per annum, from and including November 8, 2021, or from the most recent Interest Payment Date (as defined
hereafter) on which interest has been paid or provided for until the principal thereof becomes due and payable, and on any overdue
principal. If an Interest Payment Date falls on a day that is not a Business Day, the applicable interest payment will be made on
the next following Business Day with the same force and effect as if made on such Interest Payment Date, and no additional interest
will accrue solely as a result of such delayed payment. Interest shall be calculated on the basis of a 360-day year comprised of
twelve 30-day months. Interest on the Notes shall be payable quarterly in arrears in U.S. Dollars on February 28, May 31,
August 31 and November 30 of each year, commencing on February 28, 2022 (each such date, an “Interest
Payment Date” for purposes of the Notes). Payments of interest shall be made to the Person in whose name a Note (or
predecessor Note) is registered in the records of the Registrar (which shall initially be the Depositary or its nominee) at the close of business
on the February 15, May 15, August 15 or November 15, as applicable (whether or not a Business Day), immediately
preceding such Interest Payment Date (each such date, a “Regular Record Date” for the purposes of the Notes). The
Company shall make payments on the Notes so long as represented by a Global Security in accordance with the applicable procedures of
the DTC in effect from time to time. If the Notes are no longer represented by a Global Security, the Company will make payments on
any Notes (i) in the case of interest due on an Interest Payment Date, by check mailed on such Interest Payment Date to the
Holder of such Note at his or her address shown on the Register on the related Regular Record Date or (ii) in the case of
principal, by check upon surrender of such Note at the office of the Trustee in the contiguous United States or other offices that
may be specified in the Indenture or a notice to Holder.
(d) Registration
and Form. The Notes shall be issuable as registered securities as provided in Section 2.03. The form of the Notes shall
be as set forth in Exhibit A attached hereto. The Notes shall be issued, and the transfer thereof may be registered, only
in minimum denominations of $25.00 and integral multiples of $25.00 in excess thereof. All payments of principal, Redemption Price and
accrued unpaid interest in respect of the Notes shall be made by the Company as set forth in the Notes. The registration, registration
of transfers and exchanges of Notes shall be effected in accordance with Section 2.08 of the Base Indenture. A transfer or exchange
shall be made only if the Registrar is satisfied with a Holder’s proof of legal ownership.
(e) Legal
Defeasance and Covenant Defeasance. The provisions for legal defeasance in Section 8.02 of the Base Indenture, and the provisions
for covenant defeasance in Section 8.03 of the Base Indenture, shall be applicable to the Notes. If the Company shall effect a defeasance
of the Notes pursuant to Section 8.02 or Section 8.03 of the Base Indenture, subject to the satisfaction of the conditions
set forth in Section 8.04 of the Base Indenture (i) the Company shall be discharged and released from, and shall be deemed
to have satisfied, its obligations as specified in Section 8.02 or Section 8.03 of the Base Indenture, as applicable, to the
extent specified therein, (ii) the Company shall cease to have any obligation to comply with Article IV of this Supplemental
Indenture, and (iii) payment of the Notes may not be accelerated because of an Event of Default.
(f) Further
Issuance. The Company may, from time to time, without the consent of or notice to the Holders, create and issue (i) additional
debt securities, including additional series of Securities under the Base Indenture having the same terms as to interest rate, maturity
and other terms (except for the issue date, the public offering price, the date on which interest first accrues on such Securities and
the first interest payment date) as, and ranking equally and ratably with, the Initial Notes (such Securities having the same terms as
the Notes (except as aforesaid), “Additional Notes”). Any such Additional Notes may constitute a single fungible series
with the Initial Notes for federal income tax purposes. If any such Additional Notes are not fungible with the Initial Notes for U.S.
federal income tax purposes, such Additional Notes will have one or more separate CUSIP numbers. All references herein to the Notes shall
include the Initial Notes and any such fungible Additional Notes. The Initial Notes and any Additional Notes subsequently issued upon
original issue under the Indenture shall be considered collectively as a single class for all purposes of the Indenture, including directions,
waivers, amendments, consents and redemptions. Holders of the Initial Notes and any Additional Notes therefore will vote and consent
together on all matters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes
or any Additional Notes shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled
to vote or consent.
(g) Redemption.
The Notes are subject to redemption by the Company in whole or in part in the manner described in Article III of this Supplemental
Indenture.
(h) Sinking
Fund. The Notes are not entitled to any sinking fund.
(i) Other
Terms and Conditions. The Notes shall have such other terms and conditions as provided elsewhere in the Indenture and in the form
thereof attached as Exhibit A hereto.
ARTICLE III
REDEMPTION
The provisions of Article V of the Base Indenture
shall apply to the Notes, except as otherwise stated in, or to the extent inconsistent with, this Article III. Section 5.03
of the Base Indenture shall not apply to the Notes and shall be deemed replaced by Section 3.02, and any references to Section 5.03
of the Base Indenture shall be deemed to refer to Section 3.02 of this Supplemental Indenture.
Section 3.01.
Optional Redemption.
(a) On
or after November 30, 2023, the Notes are subject to redemption, in whole at any time or in part from time to time, at the Company’s
option at a Redemption Price equal to the price set forth below per $25.00 principal amount of Notes, plus accrued and unpaid interest
on such Notes to, but excluding, the Redemption Date:
|
Redemption Date
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Redemption Price
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On or after November 30, 2023, but prior to November 30, 2024
|
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$
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25.50
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On or after November 30, 2024, but prior to November 30, 2025
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$
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25.25
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On or after November 30, 2025
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$
|
25.00
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|
(b) At
any time prior to November 30, 2023, the Notes are subject to redemption, in whole at any time or in part from time to time, at the
Company’s option at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus the Applicable Premium
as of, and accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The Company will, in the case of a Redemption Date prior
to November 30, 2023, (i) calculate the Treasury Rate on the second Business Day preceding the applicable Redemption Date and
(ii) prior to such Redemption Date file with the Trustee an Officers’ Certificate setting forth the Applicable Premium and
the Treasury Rate and showing the calculation of each in reasonable detail.
(c) In
each case of the foregoing Sections 3.01(a) or (b), the Redemption Price shall be subject to the rights of Holders
on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date.
(d) The
Trustee shall have no obligation to calculate any Redemption Price, or any component thereof, and the Trustee shall be entitled to receive
and conclusively rely upon an Officers’ Certificate delivered by the Company that specifies any Redemption Price.
Section 3.02.
Selection by Trustee of Notes to be Redeemed.
If less than all of the Notes are to be redeemed
at any time, the Trustee will, subject to applicable law, select Notes for redemption not more than 45 days prior to the Redemption Date
on a pro-rate basis or by-lot any other method the Trustee deems fair and appropriate, provided, that the unredeemed portion of
the principal amount of any Notes will be in an authorized denomination (which will not be less than the minimum authorized denomination)
for the Notes.
The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof
to be redeemed.
Beneficial interests in any Notes called for redemption
that are represented by Global Securities will be selected by DTC or any successor Depositary in accordance with DTC’s or such successor
Depositary’s applicable procedures.
If the Notes are listed on any national securities
exchange, Notes will be selected in compliance with the requirements of the principal national securities exchange on which the Notes
are listed.
Section 3.03.
Open Market Repurchases.
The Company may at any time, and from time to
time, purchase Notes at any price or prices in the open market or otherwise, including in the open market at prevailing prices or in
private transactions at negotiated prices. Notes that the Company purchases may, at the Company’s discretion, be held, resold
or canceled. The Company will inform the Trustee of any such listing and of the requirements of such exchange as to the selection of the Notes for
redemption.
ARTICLE IV
COVENANTS
The provisions of Sections 3.01, 3.03, 3.04, 3.05
and 3.06 of the Base Indenture shall apply to the Notes, except as otherwise stated in, or to the extent inconsistent with, this Article IV.
Sections 3.02 and 4.01 of the Base Indenture shall not apply to the Notes and shall be deemed replaced by Sections 4.01 and 4.02,
respectively, of this Supplemental Indenture.
Section 4.01.
Reporting.
The Company will furnish or file with the Trustee,
within 15 days after it files the same with the SEC, copies of the annual reports and 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) that the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company is not subject to the requirements of
Section 13 or 15(d) of the Exchange Act, the Company will nevertheless continue filing the reports specified in the preceding
sentence with the SEC within the time periods specified above unless the SEC will not accept such a filing, but in such event the reports
specified in the preceding sentence shall not be required to contain certain disclosures relating to the Company’s controls and
procedures, corporate governance, code of ethics, director independence, market for the Company’s equity securities and executive
compensation. The Company will not take any action for the purpose of causing the SEC not to accept any such filings. For purposes of
this covenant, the Company will be deemed to have furnished such reports and information to, or filed such reports and information with,
the Trustee and the Holders of the Notes as required by this covenant if it has filed such reports or information with the SEC via the
EDGAR filing system or otherwise made such reports or information publicly available on a freely accessible page on the Company’s
website. The Trustee shall have no obligation whatsoever to determine whether or not such reports and information have been filed or have
been posted on such website. 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 actual or constructive knowledge or notice of any information contained therein
or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to
which the trustee is entitled to rely exclusively on Officers’ Certificates).
Section 4.02.
Consolidation, Merger or Sale of Assets.
The Company shall not, in a single transaction
or through a series of related transactions, consolidate with or merge with or into any other Person or sell, assign (excluding any assignment
solely as collateral for security purposes), transfer, lease or otherwise dispose of all or substantially all of the consolidated assets
of the Company and its Subsidiaries, taken as a whole, to any Person, unless:
(a) the
Company shall be the successor or continuing Person or, if the Company is not the successor or continuing Person, the resulting, surviving
or transferee Person (the “Surviving Entity”) is a corporation organized and existing under the laws of the United
States, any State thereof or the District of Columbia that expressly assumes all of the Company’s obligations under the Notes and
the Indenture pursuant to a supplement hereto executed and delivered to the Trustee;
(b) immediately
after giving effect to such transaction or series of related transactions, no Event of Default or Default has occurred and is continuing;
and
(c) the
Company or any such Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel each stating
that such transaction or series of related transactions and any supplement hereto complies with the terms of the Indenture and that all
conditions precedent provided for in the Indenture relating to such transaction or series of related transactions have been complied with.
If any consolidation or merger or any sale, assignment,
lease, transfer or other disposition of all or substantially all of its assets occurs in accordance with the terms hereof, the Surviving
Entity shall succeed to, and be substituted for, and may exercise every right and power of the Company under the Indenture with the same
effect as if such Surviving Entity had been named as the Company. The Company shall (except in the case of a lease) be discharged from
all obligations and covenants under the Indenture and any Note issued hereunder, and may be liquidated and dissolved.
Section 4.03.
Exchange Listing.
After the Notes are initially listed on the
Nasdaq Global Select Market or another national securities exchange, the Company will use commercially reasonable efforts to cause
the Notes to continue be listed on the Nasdaq Global Select Market or another national securities exchange in the United States. For
the avoidance of doubt, it shall not be a default in the performance, or a breach, of this covenant if the Company uses commercially
reasonable efforts to cause the Notes to continue to be listed on the Nasdaq Global Select Market or another national securities
exchange and the Notes fail or cease to be listed on one of the foregoing exchanges notwithstanding such commercially reasonable
efforts of the Company.
ARTICLE V
EVENTS OF DEFAULT
Section 5.01.
Events of Default; Remedies.
The provisions of Article VI of the Base Indenture
shall apply to the Notes, except as otherwise stated in, or to the extent inconsistent with, this Article V. Sections 6.01,
6.02, 6.06 and 6.08 of the Base Indenture shall not apply to the Notes, and shall be deemed replaced by Sections 5.02, 5.03,
5.05 and 5.06, respectively, of this Supplemental Indenture. Any references to Section 6.01(e) of the Base Indenture
shall be deemed to refer to Section 5.02(d) of this Supplemental Indenture.
Section 5.02.
Events of Default.
Each of the following, and solely the following,
shall constitute an “Event of Default” with respect to the Notes:
(a) the
Company defaults in the payment of any interest due and payable on any Note, continued for 30 days;
(b) the
Company defaults in the payment when due (at the Maturity Date, upon acceleration, redemption, required repurchase or otherwise) of the
principal of, or premium, if any, on the Notes;
(c) the
default in the performance, or breach, of any covenant of the Company in the Indenture or the Notes, and continuance of such default
or breach for a period of 60 days after there has been given to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the outstanding Notes a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” under the Indenture; or
(d) (i) the
Company:
(1) commences
a voluntary case or proceeding under any Bankruptcy Law;
(2) consents
to the entry of a judgment, decree or order for relief against it in an involuntary case or proceeding under any Bankruptcy Law;
(3) consents
to the appointment of a Custodian of it or for any substantial part of its property;
(4) makes
a general assignment for the benefit of its creditors; or
(5) consents
to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it; or
(6) takes
any comparable action under any foreign laws relating to insolvency; or
(ii) (A) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Company;
(2) appoints
a Custodian of the Company; or
(3) orders
the winding up or liquidation of the Company; or
(B) any similar relief is granted
under any foreign laws;
and, in the case of the foregoing (A) or (B), the order,
decree or relief remains unstayed and in effect for 90 days.
Section 5.03.
Acceleration.
If any Event of Default with respect to any Notes
at the time outstanding (other than those of the type described in Section 5.02(d)) occurs and is continuing, the Trustee
may, and at the direction of the Holders of at least 25% in aggregate principal amount of outstanding Notes shall, declare the principal
of all Notes, together with all accrued and unpaid interest, to be due and payable immediately by notice in writing to the Company specifying
the respective Event of Default and that such notice is a notice of acceleration, and the same shall become immediately due and payable.
In the case of an Event of Default specified in
Section 5.02(d) occurs, the principal of all Notes, together with all accrued and unpaid interest, shall become due and
payable immediately without further action or notice by the Trustee or the Holders.
At any time after a declaration of acceleration
with respect to the Notes, the Holders of a majority in principal amount of the Notes then outstanding (by written notice to the Trustee)
may, on behalf of the Holders of all the Notes, rescind and cancel such declaration and its consequences if:
(a) the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction;
(b) all
existing Events of Default have been cured or waived, other than nonpayment of principal of the Notes which has become due solely by reason
of such declaration of acceleration;
(c) to
the extent the payment of such interest is lawful, interest (at the same rate specified in the Notes) on overdue installments of interest
and overdue payments of principal which has become due otherwise than by such declaration of acceleration has been paid;
(d) the
Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances;
and
(e) in
the event of the cure or waiver of an Event of Default, the Trustee has received an Officers’ Certificate that such Event of Default
has been cured or waived.
Section 5.04.
Other Specified Remedies.
Notwithstanding anything to the contrary in Section 5.03
of this Supplemental Indenture, Section 6.03 of the Base Indenture, or any other provision of the Indenture or the Notes, the sole
remedy with respect to an Event of Default due to the Company’s failure to comply with the reporting requirements under Section 314
of the TIA or under Section 4.01 of this Supplemental Indenture, for the first 180 calendar days after the occurrence of such
Event of Default, consists exclusively of the right to receive additional interest on the Notes at an annual rate equal to (1) 0.25%
for the first 90 calendar days after such Event of Default and (2) 0.50% for calendar days 91 through 180 after such Event of Default.
On the 181st day after such Event of Default, if such violation is not cured or waived, the Trustee or the Holders of not less than 25%
of the outstanding principal amount of the Notes may declare the principal, together with accrued and unpaid interest, if any, on the
Notes to be due and payable immediately. If the Company elects to pay such additional interest, it shall notify the Trustee and the Holders
of the Notes by certificate of the Company’s election at any time on or before the close of business on the first Business Day following
the Event of Default. No additional interest shall be due or payable other than with respect to such failure to comply with reporting
requirements.
Section 5.05.
Limitation on Suits.
Subject to Section 6.07 of the Base Indenture,
a Holder of a Notes may not pursue any remedy with respect to the Indenture or the Notes unless:
(a) such
Holder has previously given to the Trustee written notice stating that an Event of Default is continuing with respect to such series;
(b) Holders
of at least 25% in aggregate principal amount of the outstanding Notes have requested in writing that the Trustee pursue the remedy;
(c) such
Holders have offered to the Trustee security or indemnity satisfactory to it against any loss, liability or expense;
(d) the
Trustee has not complied with such request within 60 days after receipt of the request and the offer of security or indemnity; and
(e) the
Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a direction that is inconsistent with such
request within such 60-day period.
A Holder may not pursue a remedy with respect
to the Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it being
understood that the Trustee does not have an affirmative duty to monitor any such pursuit or ascertain whether or not any such
pursuit or use by a Holder prejudices the rights of any other Holders or obtains preference or priority over such other
Holders).
Section 5.06.
Collection Suit by Trustee.
If an Event of Default specified in Section 5.02(a) or
Section 5.02(b) occurs and is continuing with respect to the Notes, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest
to the extent lawful) with respect to the Notes and the amounts provided for in Section 7.07 of the Base Indenture.
ARTICLE VI
MISCELLANEOUS
Section 6.01.
Ratification of Indenture.
This Supplemental Indenture is executed and shall
be constructed as an indenture supplemental to the Base Indenture, and as supplemented and modified hereby, the Base Indenture is in all
respects ratified and confirmed, and the Base Indenture and this Supplemental Indenture shall be read, taken and constructed as one and
the same instrument. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes shall
be bound hereby.
Section 6.02.
Trust Indenture Act Controls.
If any provision of this Supplemental Indenture
limits, qualifies or conflicts with another provision that is required or deemed to be included in this Supplemental Indenture by the
TIA, the required or deemed provision shall control.
Section 6.03.
Notices.
All notices and other communications shall be given
as provided in the Base Indenture.
Section 6.04.
Governing Law.
THIS SUPPLEMENTAL INDENTURE, THE INDENTURE AND
THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THERETO (OTHER THAN N.Y. GENERAL OBLIGATIONS LAW § 5-1401). EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A
NOTE BY ITS ACCEPTANCE THEREOF, 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 SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY OR THEREBY.
Section 6.05.
Successors.
All agreements of the Company in this Supplemental
Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
Section 6.06.
Multiple Originals.
The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy
is enough to prove this Supplemental Indenture. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile
or PDF or other electronically imaged (such as DocuSign or Adobe Sign) signature transmission shall constitute effective execution and
delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or PDF or other electronically imaged (such as DocuSign or Adobe Sign)
signature transmission shall be deemed to be their original signatures for all purposes.
The
exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF or other electronically imaged
(such as DocuSign or Adobe Sign) signature transmission shall constitute effective execution and delivery of this Supplemental Indenture
as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. The exchange of copies of this
Supplemental Indenture and of signature pages that are executed by manual signatures that are scanned, photocopied or faxed or by
other electronic signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign), in each case
that is approved by the Trustee, shall constitute effective execution and delivery of this Supplemental Indenture for all purposes. Signatures
of the parties hereto that are executed by manual signatures that are scanned, photocopied or faxed or by other electronic signing created
on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign), in each case that is approved by the Trustee,
shall be deemed to be their original signatures for all purposes of this Supplemental Indenture as to the parties hereto and may be used
in lieu of the original.
Anything
in this Supplemental Indenture, the Indenture or the Notes to the contrary notwithstanding, for the purposes of the transactions
contemplated by the Indenture, this Supplemental Indenture, any Note and any document to be signed in connection with the Indenture, this
Supplemental Indenture or any Note (including any Global Security and amendments, supplements, waivers, consents and other modifications,
Officers’ Certificates, Company Orders and Opinions of Counsel and other issuance, authentication and delivery documents) or the
transactions contemplated hereby may be signed by manual signatures that are scanned, photocopied or faxed or other electronic signatures
created on an electronic platform (such as DocuSign) or by digital signature (such as Adobe Sign), in each case that is approved by the
Trustee, and contract formations on electronic platforms approved by the Trustee, and the keeping of records in electronic form, are hereby
authorized, and each shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use
of a paper-based recordkeeping system, as the case may be.
Section 6.07.
Headings.
The headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall
not modify or restrict any of the terms or provisions hereof.
Section 6.08.
Trustee Not Responsible for Recitals.
The statements and recitals contained in this Supplemental
Indenture shall be taken as statements and recitals of the Company, and the Trustee does not assume any responsibility for their correctness.
The Trustee makes no representations as to the validity, adequacy or sufficiency of this Supplemental Indenture, except that the Trustee
represents that it is duly authorized to execute and deliver this Supplemental Indenture and perform its obligations hereunder.
Section 6.09.
Paying Agent and Registrar.
The Company initially appoints the Trustee as Paying
Agent and Registrar with respect to the Notes.
Section 6.10.
Benefits of Supplemental Indenture.
Nothing
in this Supplemental Indenture or the Notes, express or implied, shall give to any Person, other than the parties to this Supplemental
Indenture and their successors hereunder and the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under
this Supplemental Indenture or the Notes.
Section 6.11.
No Personal Liability.
No
incorporator, stockholder, employee, agent, officer, director or subsidiary of the Company will have any liability for any obligations
of the Company, or because of the creation of any indebtedness under the Notes, the Indenture or the Supplemental Indenture. All such
liability is expressly waived and released as a condition of, and as a consideration for, the execution of the Supplemental Indenture
and the issuance of the Notes. This Section 6.11 supersedes Section 11.11 of the Base Indenture to the extent inconsistent
therewith.
Section 6.12.
No Adverse Interpretation of Other Agreements.
The Indenture (including this Supplemental Indenture)
insofar as relating to the Notes may not be used to interpret any other indenture, loan or debt agreement (including the Indenture (including
any other supplemental indenture thereto) insofar as relating to any series of Securities other than the Notes) of the Company or any
of its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement (including the Indenture (including any other supplemental
indenture thereto) insofar as relating to any series of Securities other than the Notes) may not be used to interpret the Indenture (including
this Supplemental Indenture) insofar as relating to the Notes.
Section 6.13.
Severability.
In case any provision in this Supplemental Indenture
or the Notes 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 6.14.
Language of Notices, Etc.
Any request, demand, authorization, direction,
notice, consent, waiver or act required or permitted under this Supplemental Indenture shall be in the English language, except that any
published notice may be in an official language of the country of publication.
Section 6.15.
Scope of this Supplemental Indenture.
The changes, modifications and supplements to the
Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, and
shall be deemed expressly included in this Supplemental Indenture solely for the benefit of, the Notes which may be issued from time to
time, and shall not apply to any other Securities that may be issued under the Base Indenture unless a supplemental indenture with respect
to such other Securities specifically incorporates such changes, modifications and supplements.
Section 6.16.
Covenants not Applicable.
In accordance with
Section 2.01(p) of the Base Indenture, (i) except as, and to the extent, described herein, the covenants and
agreements on the part of the Company in Sections 3.02 and 3.07 of the Base Indenture are hereby eliminated from the Base
Indenture in respect of, and shall not apply to, and shall be deemed covenants included in the Base Indenture solely for the benefit
of a different series of Securities than, the Notes; and (ii) no Default or Event of Default with respect to the Notes shall
arise, or be deemed to exist as the result of any failure on the part of the Company duly to observe or perform any of the covenants
or agreements specified in clause (i) of this Section 6.16.
IN WITNESS WHEREOF, the parties have caused this
Supplemental Indenture to be duly executed as of the date first written above.
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COMPANY:
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FOSSIL GROUP, INC.
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By:
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/s/ Sunil M. Doshi
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Name:
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Sunil M. Doshi
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Title:
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Senior Vice President, Chief Financial Officer and Treasurer
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Signature
Page to First Supplemental Indenture
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TRUSTEE:
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
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By:
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/s/ Lawrence M. Kusch
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Name:
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Lawrence M. Kusch
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Title:
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Vice President
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Signature
Page to First Supplemental Indenture
EXHIBIT A
FORM OF NOTE
[THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE
OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]1
CUSIP NO. [•]
ISIN NO. [•]
FOSSIL GROUP, INC.
7.00% SENIOR NOTE DUE 2026
$[•] (or such other principal amount as
shall be set forth on Schedule I hereto)
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No.: R-[•]
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FOSSIL GROUP, INC., a Delaware corporation
(herein called the “Company”), for value received, hereby promises to pay to [●], or registered assigns, the
principal sum of $[●] [or such other principal amount as shall be set forth on Schedule I hereto]2 on November 30,
2026 and to pay interest thereon at the rate of 7.00% per annum, subject to adjustment from time to time pursuant to the terms hereof,
from and including November 8, 2021, or from the most recent Interest Payment Date to which interest has been paid or duly provided
for, on February 28, May 31, August 31 and November 30 of each year, commencing on February 28, 2022 (each, an
“Interest Payment Date”), until the principal hereof is paid or made available for payment.
1
Include if Global Security.
2
Include if Global Security.
The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, except as provided in the Indenture hereinafter referred to, be paid to the Person
in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the regular record date for such
interest, which will be the February 15, May 15, August 15 and November 15 (whether or not that date is a Business
Day), as the case may be (each, a “Regular Record Date”), immediately preceding each 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
either may be paid to the Person in whose name this Note (or one or more predecessor Notes) 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 the Holders
not less than ten days prior to such Special Record Date, or may be paid at any time in any other lawful manner, all as more fully provided
in the Indenture. Payment of the principal of and interest on this Note (including, without limitation, any Redemption Price) will be
made 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 (i) if this Note is a Global Security, in accordance with the applicable policies of DTC in effect from time to time; or (ii) otherwise
at the office or agency of the Company maintained for that purpose pursuant to the Indenture (initially the principal corporate trust
office of the Trustee in Dallas, TX (the “Corporate Trust Office”)); provided, however, that payment of interest
that is due on an Interest Payment Date shall be made by check mailed to the address of the Person entitled thereto as such address shall
appear in the Register on the Regular Record Date and (ii) payments of principal will be made by check against presentation of this
Note at the Corporate Trust Office (or such other office as may be specified in the Indenture or in a notice to Holders).
Reference is hereby made to the further provisions
of this Note set forth on the reverse side hereof, which further provisions shall for all purposes have the same effect as though fully
set forth at this place.
Unless the Certificate of Authentication
hereon has been executed by the Trustee or an authenticating agent under the Indenture referred to on the reverse hereof by the
manual or PDF or other electronically imaged (such as DocuSign or Adobe Sign) signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that this Note has been authenticated under the Indenture, this Note
shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Company has caused this
Note to be to be duly executed as of the date set forth below.
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Date: [●]
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FOSSIL GROUP, INC.
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By:
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Name:
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Title:
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Trustee’s Certificate of Authentication
This is one of the Notes designated therein referred
to in the within-mentioned Supplemental Indenture.
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Dated: [●]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
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as Trustee
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By:
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Authorized Signatory
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(Reverse of Note)
FOSSIL GROUP, INC.
7.00% SENIOR NOTE DUE 2026
1. This
Note is one of a duly authorized issue of Securities of the Company designated as its 7.00% Senior Notes due 2026 (the “Notes”)
unlimited in aggregate principal amount issued and to be issued under an Indenture, dated as of November 8, 2021 (the “Base
Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (herein called the “Trustee,”
which term includes any successor Trustee under the Indenture), and the First Supplemental Indenture, dated as of November 8, 2021
(the “Supplemental Indenture”) (the Base Indenture, as supplemented by the Supplemental Indenture and as the Supplemental
Indenture may be further supplemented or amended from time to time, together with those terms made part of the Indenture by, or by reference
to, the TIA, is herein referred to as the “Indenture”), between the Company and the Trustee. Reference is hereby made
to the Indenture for a statement of the respective rights thereunder of the Company, the Trustee and the Holders of the Notes, and the
terms upon which the Notes are, and are to be, authenticated and delivered.
2. On
or after November 30, 2023, the Notes are subject to redemption, in whole at any time or in part from time to time, at the Company’s
option at a Redemption Price equal to the price set forth below per $25.00 principal amount of Notes, plus accrued and unpaid interest
on such Notes to, but excluding, the Redemption Date:
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Redemption Date
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Redemption Price
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On or after November 30, 2023, but prior to November 30, 2024
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$
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25.50
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On or after November 30, 2024, but prior to November 30, 2025
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$
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25.25
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On or after November 30, 2025
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$
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25.00
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At any time prior to November 30, 2023, the
Notes are subject to redemption, in whole at any time or in part from time to time, at the Company’s option at a Redemption Price
equal to 100% of the principal amount of the Notes to be redeemed, plus the Applicable Premium as of, and accrued and unpaid interest,
if any, to, but excluding, the Redemption Date.
The Company will, in the case of a Redemption Date prior to November 30,
2023, (i) calculate the Treasury Rate on the second Business Day preceding the applicable Redemption Date and (ii) prior to
such Redemption Date file with the Trustee an Officers’ Certificate setting forth the Applicable Premium and the Treasury Rate and
showing the calculation of each in reasonable detail.
In each case of the foregoing, the Redemption Price
shall be subject to the rights of Holders on the relevant Regular Record Date to receive interest due on the relevant Interest Payment
Date.
3.
Subject to certain conditions and exceptions set forth in the Indenture, if an Event of
Default as set forth in the Indenture shall occur and be continuing, among other remedies exercisable by the Trustee, the principal
of the Notes may be declared (or in certain circumstances, may become) due and payable in the manner and with the effect provided in
the Indenture.
4. The
Indenture permits, with certain exceptions as therein provided, the amendment thereof and of the Notes and the modification of the rights
and obligations of the Company and the rights of the Holders of Notes under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of Notes at the time outstanding. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of Notes at the time outstanding, on behalf of the Holders of all Notes,
to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of
this Note and of any Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Note.
5. No
reference herein to the Indenture and no provisions of this Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on this Note at the times, places and rate, and in the coin
or currency, herein prescribed.
6. As
provided in the Indenture and subject to certain limitations therein set forth and herein, unless this Note is a Global Security, the
transfer of this Note may be registered on the Register of the Company, upon surrender of this Note for registration of transfer at the
Corporate Trust Office, duly endorsed by, or accompanied by a written instruction of transfer in form satisfactory to the Company, and
duly executed by the Holder hereof or such Holder’s attorney, duly authorized in writing, on which instruction the Company can
rely, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
7. The
Notes are issuable only in fully registered form, without coupons, in minimum denominations of $25.00 or any amount in excess thereof
which is an integral multiple of $25.00. As provided in the Indenture, and subject to certain limitations therein set forth, the Notes
(other than those represented by a Global Security) are exchangeable for a like aggregate principal amount of Notes in authorized denominations,
as requested by the Holder surrendering the same.
8. No
service charge shall be made to the Holder for any such registration of transfer or exchange, but the Company may require payment of
a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.
9. Prior
to the due presentment of this Note for registration of transfer or exchange, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note
be overdue, and neither the Company, the Trustee, nor any such agent shall be affected by notice to the contrary.
10. Interest
on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
11. Subject
to certain limitations set forth in the Indenture, the Trustee, in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were
not the Trustee.
12. This
Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
13. Customary
abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUT (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
14. Each
Holder of this Note covenants and agrees by such Holder’s acceptance hereof to comply with and be bound by the foregoing provisions.
15. THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THERETO (OTHER THAN N.Y. GENERAL OBLIGATIONS LAW § 5-1401). EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF A NOTE BY ITS
ACCEPTANCE THEREOF, 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 THE INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
16. All
capitalized terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
17. Pursuant
to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be
placed only on the other identification numbers placed thereon.
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
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the within Note and all rights thereunder, hereby irrevocably constituting
and appointing attorney to transfer said Note on the books of the Company, with full power of substitution in the premises.
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NOTICE:
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THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
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Signature Guarantee:
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Schedule
I
[SCHEDULE OF TRANSFERS AND EXCHANGES
The following increases or decreases in principal
amount of this Global Security have been made:
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Date of Exchange
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Amount of
Decrease in
Principal
Amount of this
Global Security
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Amount of
Increase in
Principal Amount
of this Global
Security
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Principal Amount
of this Global
Security following
such Decrease or
Increase
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Signature of
Authorized
Signatory of
trustee or
Custodian
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]3
3
Include if Global Security..
