OMC Omnicom Group Inc

Exhibit 4.3

 

OMNICOM GROUP INC.


as Issuer

 

INDENTURE

Dated as of ______________

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Trustee

 

Debt Securities

 

 

TABLE OF CONTENTS

				Page
ARTICLE I	DEFINITIONS AND INCORPORATION BY REFERENCE			1
SECTION 1.1		Definitions		1
SECTION 1.2		Other Definitions		5
SECTION 1.3		Incorporation by Reference of Trust Indenture Act		5
SECTION 1.4		Rules of Construction		5
ARTICLE II	THE SECURITIES			6
SECTION 2.1		Issuable in Series		6
SECTION 2.2		Establishment of Terms of Series of Securities		6
SECTION 2.3		Execution and Authentication		8
SECTION 2.4		Registrar and Paying Agent		9
SECTION 2.5		Paying Agent to Hold Money in Trust		10
SECTION 2.6		Securityholder Lists		10
SECTION 2.7		Transfer and Exchange		10
SECTION 2.8		Mutilated, Destroyed, Lost and Stolen Securities		11
SECTION 2.9		Outstanding Securities		12
SECTION 2.10		Treasury Securities		12
SECTION 2.11		Temporary Securities		12
SECTION 2.12		Cancellation		12
SECTION 2.13		Defaulted Interest		13
SECTION 2.14		Global Securities		13
SECTION 2.15		CUSIP, ISIN and Common Code Numbers		15
ARTICLE III	REDEMPTION			15
SECTION 3.1		Notice to Trustee		15
SECTION 3.2		Selection of Securities to be Redeemed		16
SECTION 3.3		Notice of Redemption		16
SECTION 3.4		Effect of Notice of Redemption		17
SECTION 3.5		Deposit of Redemption Price		17
SECTION 3.6		Securities Redeemed in Part		17
ARTICLE IV	COVENANTS			17
SECTION 4.1		Payment of Principal and Interest		17
SECTION 4.2		SEC Reports		17
SECTION 4.3		Compliance Certificate		18
SECTION 4.4		Stay, Extension and Usury Laws		18
SECTION 4.5		Corporate Existence		18
SECTION 4.6		Taxes		18
ARTICLE V	SUCCESSORS			19
SECTION 5.1		When the Issuer May Merge, Etc.		19
SECTION 5.2		Successor Corporation Substituted		19
ARTICLE VI	DEFAULTS AND REMEDIES			20
SECTION 6.1		Events of Default		20
SECTION 6.2		Acceleration of Maturity; Rescission and Annulment		21

 

 

TABLE OF CONTENTS
(Continued)

				Page
SECTION 6.3		Collection of Indebtedness and Suits for Enforcement by Trustee		22
SECTION 6.4		Trustee May File Proofs of Claim		23
SECTION 6.5		Trustee May Enforce Claims Without Possession of Securities		23
SECTION 6.6		Application of Money Collected		24
SECTION 6.7		Limitation on Suits		24
SECTION 6.8		Unconditional Right of Holders to Receive Principal and Interest		25
SECTION 6.9		Restoration of Rights and Remedies		25
SECTION 6.10		Rights and Remedies Cumulative		25
SECTION 6.11		Delay or Omission Not Waiver		25
SECTION 6.12		Control by Holders		25
SECTION 6.13		Waiver of Past Defaults		26
SECTION 6.14		Undertaking for Costs		26
ARTICLE VII	TRUSTEE			26
SECTION 7.1		Duties of Trustee		26
SECTION 7.2		Rights of Trustee		27
SECTION 7.3		Individual Rights of Trustee		29
SECTION 7.4		Trustee’s Disclaimer		29
SECTION 7.5		Notice of Defaults		29
SECTION 7.6		Reports by Trustee to Holders		29
SECTION 7.7		Compensation and Indemnity		29
SECTION 7.8		Replacement of Trustee		30
SECTION 7.9		Successor Trustee by Merger, Etc.		31
SECTION 7.10		Eligibility; Disqualification		31
SECTION 7.11		Preferential Collection of Claims		31
ARTICLE VIII	SATISFACTION AND DISCHARGE; DEFEASANCE			31
SECTION 8.1		Satisfaction and Discharge of Indenture		31
SECTION 8.2		Application of Trust Funds; Indemnification		32
SECTION 8.3		Legal Defeasance of Securities of any Series		33
SECTION 8.4		Covenant Defeasance		34
SECTION 8.5		Repayment to the Issuer		35
SECTION 8.6		Reinstatement		35
ARTICLE IX	AMENDMENTS AND WAIVERS			36
SECTION 9.1		Without Consent of Holders		36
SECTION 9.2		With Consent of Holders		37
SECTION 9.3		Compliance with Trust Indenture Act		38
SECTION 9.4		Revocation and Effect of Consents		38
SECTION 9.5		Notation on or Exchange of Securities		38
SECTION 9.6		Trustee Protected		38

 

 

TABLE OF CONTENTS
(Continued)

 

				Page
ARTICLE X	MISCELLANEOUS			38
SECTION 10.1		Trust Indenture Act Controls		38
SECTION 10.2		Notices		39
SECTION 10.3		Communication by Holders with Other Holders		39
SECTION 10.4		Certificate and Opinion as to Conditions Precedent		40
SECTION 10.5		Statements Required in Certificate or Opinion		40
SECTION 10.6		Rules by Trustee and Agents		40
SECTION 10.7		Legal Holidays		40
SECTION 10.8		No Recourse Against Others		40
SECTION 10.9		Counterparts and Electronic Signature		41
SECTION 10.10		Governing Laws		41
SECTION 10.11		No Adverse Interpretation of Other Agreements		41
SECTION 10.12		Successors		41
SECTION 10.13		Severability		42
SECTION 10.14		Table of Contents, Headings, Etc.		42
SECTION 10.15		USA Patriot Act		42
SECTION 10.16		Force Majeure		42
SECTION 10.17		Consent to Jurisdiction; Waiver of Jury Trial		42
ARTICLE XI	SINKING FUNDS			43
SECTION 11.1		Applicability of Article		43
SECTION 11.2		Satisfaction of Sinking Fund Payments with Securities		43
SECTION 11.3		Redemption of Securities for Sinking Fund		44
EXHIBITS
Exhibit A — Form of Debt Security				A-1

 

 

CROSS-REFERENCE TABLE^*

 

Trust Indenture Act Section			Indenture Section
310	(a)(1)		7.10
	(a)(2)		7.10
	(a)(3)		Not Applicable
	(a)(4)		Not Applicable
	(a)(5)		7.10
	(b)		7.10
311	(a)		7.11
	(b)		7.11
312	(a)		2.6
	(b)		10.3
	(c)		10.3
313	(a)		7.6
	(b)(1)		7.6
	(b)(2)		7.6
	(c)		7.6
	(d)		7.6
314	(a)		4.2, 10.5
	(b)		Not Applicable
	(c)(1)		10.4
	(c)(2)		10.4
	(c)(3)		Not Applicable
	(d)		Not Applicable
	(e)		10.5
	(f)		Not Applicable
315	(a)		7.1
	(b)		7.5
	(c)		7.1
	(d)		7.1
	(e)		6.14
316	(a)		2.10
	(a)(1)(A)		6.12
	(a)(1)(B)		6.13
	(b)		6.8
317	(a)(1)		6.3
	(a)(2)		6.4
	(b)		2.5
318	(a)		10.1

 

*

Note: This Cross-Reference Table is not part of the Indenture.

 

 

INDENTURE dated as of _________ among OMNICOM GROUP INC., a New York corporation, (the “Issuer”), and Deutsche Bank Trust Company Americas, a New York banking corporation, as Trustee (“Trustee”).

 

The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”), as herein provided, up to such principal amount as may from time to time be authorized in or pursuant to one or more resolutions of its Board of Directors or by supplemental indenture.

 

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.

 

ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.1 Definitions.

 

“Additional Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Issuer in respect of certain taxes imposed on Holders specified therein and which are owing to such Holders.

 

“Affiliate” of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the possession, directly, or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise.

 

“Agent” means any Registrar or Paying Agent.

 

“Board of Directors” means, with respect to the Issuer, either the board of directors of the Issuer or any duly authorized committee of such board of directors.

 

“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Issuer to have been duly adopted by its Board of Directors or pursuant to authorization by its Board of Directors and to be in full force and effect on the date of the certificate (and delivered to the Trustee, if appropriate).

 

“Business Day” means, unless otherwise provided by Board Resolution, Officer’s Certificate or supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal holiday in the City of New York on which banking institutions are authorized or required by law, regulation or executive order to close.

 

“Company Request” or “Company Order” means a written request or order signed in the name of the Issuer by its Chairman of the Board, Chief Financial Officer, a President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.

 

 

“Corporate Trust Office” means the designated corporate trust office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of original execution of this Indenture is located at (i) for purposes of surrender, transfer or exchange of any Security, Deutsche Bank Trust Company Americas, c/o DB Services Americas, Inc., 5022 Gate Parkway, Suite 200, Jacksonville, FL 32256, Attn: Transfer Department and (ii) for all other purposes, Deutsche Bank Trust Company Americas, Trust and Agency Services, 1 Columbus Circle, 17th Floor, Mail Stop: NYC01-1710, New York, New York 10019, USA, Attention: Corporates Team/Omnicom AA6238 or at any other time at such other address as the Trustee may designate from time to time by notice to the parties hereto or at the designated corporate trust office of any successor Trustee as to which such successor Trustee may notify the parties hereto in writing.

 

“Debt” of any person as of any date means, without duplication, all indebtedness of such person in respect of borrowed money, including all interest, fees and expenses owed in respect thereto (whether or not the recourse of the lender is to the whole of the assets of such person or only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments.

 

“Default” means any event which is, or with the passage of time or giving of notice or both would be, an Event of Default.

 

“Depository” means, unless otherwise provided in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, The Depository Trust Company, New York, New York, or any successor thereto registered under the Exchange Act or other applicable statute or regulation.

 

“Discount Security” means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2.

 

“Dollars” means the currency of The United States of America.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

 

“Global Security” or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in the name of such Depository or nominee.

 

“Guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof), of all or any part of any Debt.

 

 

“Guarantor” means any person, if any, identified pursuant to Section 2.2.18 of this Indenture as providing a Guarantee of any of the Issuer’s obligations under this Indenture, and its successors and assigns.

 

“"Holder” or “Securityholder” means a person in whose name a Security is registered.

 

“Indenture” means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities established as contemplated hereunder.

 

“interest” when used with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Discount Security.

 

“interest payment date” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

“Issuer” means the party named as such in the preamble to this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean any such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors.

 

“Maturity,” when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, notice of option to elect repayment or otherwise.

 

“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Issuer.

 

“Officer’s Certificate” means a certificate signed by any Officer of the Issuer.

 

“Opinion of Counsel” means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuer.

 

“person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“principal” of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.

 

“record date” as used with respect to any interest payment date (except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified as such in the terms of the Registered Securities of such series established, or, if no such date is so established, the fifteenth day next preceding such interest payment date, whether or not such record date is a Business Day.

 

 

“Responsible Officer” means any officer of the Trustee in its Corporate Trust Office having direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject.

 

“SEC” means the U.S. Securities and Exchange Commission.

 

“Securities” means the debentures, notes or other debt instruments of the Issuer of any Series authenticated and delivered under this Indenture.

 

“Securities Act” means the Securities Act of 1933, as amended from time to time.

 

“Series” or “Series of Securities” means each series of debentures, notes or other debt instruments of the Issuer created pursuant to Sections 2.1 and 2.2 hereof.

 

“Significant Subsidiary” means (i) any direct or indirect Subsidiary of the Issuer that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date hereof, or (ii) any group of direct or indirect Subsidiaries of the Issuer that, taken together as a group, would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date hereof.

 

“Stated Maturity” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“Subsidiary” of any person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding voting stock of such person, (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such person, by such person and one or more of its other Subsidiaries or by one or more of such person’s other Subsidiaries.

 

“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code ss. ss. 77aaa-77bbbb), as amended from time to time, and as in effect on the date of this Indenture; provided, however, that in the event the TIA is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act as so amended.

 

“Trustee” means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to this Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.

 

“U.S. Government Obligations” means securities which are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, and which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depositary receipt.

 

 

SECTION 1.2 Other Definitions.

 

Term		Defined in Section
“Bankruptcy Law”			6.1
“Custodian”			6.1
“Event of Default”			6.1
“Legal Holiday”			10.7
“mandatory sinking fund payment”			11.1
“optional sinking fund payment”			11.1
“Paying Agent”			2.4
“Registrar”			2.4
“successor person”			5.1

 

SECTION 1.3 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:

 

“Commission” means the SEC.

 

“indenture securities” means the Securities.

 

“indenture security holder” means a Securityholder.

 

“indenture to be qualified” means this Indenture.

 

“indenture trustee” or “institutional trustee” means the Trustee.

 

“obligor” on the Securities means the Issuer and any successor obligor upon the Securities.

 

All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein as so defined.

 

SECTION 1.4 Rules of Construction. Unless the context otherwise requires:

 

(a) a term has the meaning assigned to it;

 

 

(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;

 

(c) references to “generally accepted accounting principles” shall mean generally accepted accounting principles in effect as of the time when and for the period as to which such accounting principles are to be applied;

 

(d) “or” is not exclusive;

 

(e) words in the singular include the plural, and in the plural include the singular; and

 

(f) provisions apply to successive events and transactions.

 

ARTICLE II

THE SECURITIES

 

SECTION 2.1 Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate or supplemental indenture may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.

 

SECTION 2.2 Establishment of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.21) by a Board Resolution, a supplemental indenture or an Officer’s Certificate pursuant to authority granted under a Board Resolution:

 

2.2.1 the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);

 

2.2.2 the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;

 

2.2.3 any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.5);

 

2.2.4 the date or dates on which the principal of the Securities of the Series is payable;

 

 

2.2.5 the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;

 

2.2.6 the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, or the method of such payment, if by wire transfer, mail or other means;

 

2.2.7 if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Issuer;

 

2.2.8 the obligation, if any, of the Issuer to redeem, purchase or repay the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof upon the happening of any event and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;

 

2.2.9 the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Issuer at the option of the Holders thereof and other detailed terms and conditions of such repurchase obligations;

 

2.2.10 if other than denominations of $2,000 and integral multiples of $1,000 in excess thereof, the denominations in which the Securities of the Series shall be issuable;

 

2.2.11 whether the Securities will be issuable as Global Securities, the terms and conditions, if any, upon which such Global Security may be exchanged in whole or in part for other individual Securities of such Series in definitive registered form, the Depository for such Global Security and the form of any legend or legends to be borne by any such Global Security in addition to or in lieu of the legend referred to in Section 2.14.3;

 

2.2.12 if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;

 

2.2.13 the manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;

 

2.2.14 any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;

 

 

2.2.15 any addition to or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;

 

2.2.16 any other terms of the Securities of the Series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.1, but which may modify or delete any provision of this Indenture insofar as it applies to such Series);

 

2.2.17 any depositories, interest rate calculation agents, or other agents with respect to Securities of such Series if other than those appointed herein;

 

2.2.18 the form and terms of any Guarantee of the Securities and the terms and conditions, if any, upon which any Guarantees thereof shall be subordinated in right of payment to other indebtedness of the Issuer or any Guarantor;

 

2.2.19 the provisions relating to any security provided for the Securities of the Series;

 

2.2.20 the subordination, if any, of the Securities of the Series pursuant to this Indenture and any changes or additions to the provisions of this Indenture then in effect; and

 

2.2.21 if and as applicable, the terms and conditions of any right to exchange for or convert Securities of the Series into shares of common stock or preferred stock of the Issuer.

 

All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture or Officer’s Certificate referred to above, and the authorized principal amount of any Series may not be increased to provide for issuances of additional Securities of such Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officer’s Certificate.

 

The Securities of each Series shall be in substantially the form set forth in Exhibit A to this Indenture, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistent herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the form of Securities of any Series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 2.3 for the authentication and delivery of such Securities.

 

The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution of such Securities.

 

SECTION 2.3 Execution and Authentication. Two Officers shall sign the Securities for the Issuer by manual, facsimile or electronic signature.

 

 

If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.

 

A Security shall not be valid until authenticated by the manual or electronic signature of the Trustee or an authenticating agent.

 

The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

 

The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication and delivery pursuant to electronic instructions in writing from the Issuer or its duly authorized agent or agents. Each Security shall be dated the date of its authentication.

 

The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except as provided in Section 2.8.

 

Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.1) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.

 

The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors and/or vice-presidents shall determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.

 

The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Issuer or an Affiliate of the Issuer.

 

SECTION 2.4 Registrar and Paying Agent. The Issuer shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”) and where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Issuer will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar or Paying Agent. If at any time the Issuer shall fail to maintain any such required Registrar or Paying Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

 

The Issuer may also from time to time designate one or more co-registrars or additional paying agents and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligations to maintain a Registrar and Paying Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar or additional paying agent. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent.

 

The Issuer hereby appoints the Trustee as the initial Registrar, Paying Agent and custodian of Global Securities for the Depository for each Series unless another Registrar, Paying Agent or custodian of Global Securities for the Depository, as the case may be, is appointed prior to the time Securities of that Series are first issued.

 

SECTION 2.5 Paying Agent to Hold Money in Trust. The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee.

 

The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent.

 

SECTION 2.6 Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities.

 

SECTION 2.7 Transfer and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.5).

 

 

Neither the Issuer nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately preceding the mailing or electronic delivery of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of such mailing or electronic delivery, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part.

 

SECTION 2.8 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

If there shall be delivered to the Issuer and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuer or the Trustee that such Security has been acquired by a protected purchaser, the Issuer shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such Security.

 

Upon the issuance of any new Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

 

SECTION 2.9 Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding.

 

If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a protected purchaser. Additionally, if a Security is paid pursuant to Section 2.8, it ceases to be outstanding.

 

If the Paying Agent (other than the Issuer, a Subsidiary of the Issuer or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases to accrue unless otherwise provided by a Board Resolution, a supplemental indenture or an Officer’s Certificate with respect to any Series.

 

A Security does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Security.

 

In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.

 

SECTION 2.10 Treasury Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Issuer or an Affiliate of the Issuer shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities of a Series that a responsible officer in the Corporate Trust Office of the Trustee knows are so owned shall be so disregarded.

 

SECTION 2.11 Temporary Securities. Until definitive Securities are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Issuer considers appropriate for temporary Securities. Without unreasonable delay, the Issuer shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.

 

SECTION 2.12 Cancellation. The Issuer at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of such canceled Securities in accordance with its customary procedures (subject to the record retention requirement of the Exchange Act) and upon written instruction from the Issuer deliver a certificate of such destruction to the Issuer, unless the Issuer otherwise directs. The Issuer may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.

 

 

SECTION 2.13 Defaulted Interest. If the Issuer defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Issuer shall fix the record date and payment date. At least 30 days before the record date, the Issuer shall mail or electronically deliver to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid. The Issuer may pay defaulted interest in any other lawful manner.

 

SECTION 2.14 Global Securities.

 

2.14.1 General; Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depository for such Global Security or Securities. If the Issuer shall establish that the Securities of a particular Series are to be issued as a Global Security, then the Issuer shall execute one or more Global Securities that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the outstanding Securities of such Series, (ii) shall be registered in the name of the Depository or its nominee and (iii) shall be delivered to the Trustee as custodian for the Depository or otherwise delivered pursuant to the Depository’s instruction, and the Trustee, in accordance with Section 2.3, shall authenticate such Global Security or Global Securities.

 

2.14.2 Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depository for such Security or its nominee only if (i) such Depository notifies the Issuer that it is unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Issuer fails to appoint a successor Depository within 90 days of such event, (ii) the Issuer executes and delivers to the Trustee an Officer’s Certificate to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms.

 

Except as provided in this Section 2.14.2, a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.

 

 

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depository.

 

2.14.3 Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form:

 

“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.7 OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR TO ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO SUCH ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.”

 

 

2.14.4 Acts of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.

 

2.14.5 Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.

 

2.14.6 Consents, Declaration and Directions. Except as provided in Section 2.14.4, the Issuer, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of the Depository with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture. Notwithstanding the foregoing, prior to the due presentation for registration of transfer of any Security, the Issuer, the Trustee and the Agents may deem and treat the person in whose name a Security is registered as the owner of such Security for the purpose of receiving payment of principal of, premium, if any, and interest on such Security and for all other purposes whatsoever (except for purposes of obtaining any consents, declarations, waivers or directions) including the transfer or exchange of such Security, whether or not such Security is overdue, and none of the Issuer, the Trustee or the Agents shall be affected by notice to the contrary.

 

SECTION 2.15 CUSIP, ISIN and Common Code Numbers. The Issuer in issuing the Securities may use CUSIP, ISIN and/or Common Code numbers (if then generally in use), and, if so, the Trustee shall use CUSIP, ISIN and/or Common Code numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly notify the Trustee in writing of any change in the CUSIP, ISIN and/or Common Code numbers.

 

ARTICLE III

REDEMPTION

 

SECTION 3.1 Notice to Trustee. The Issuer may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Issuer wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, the Issuer shall notify the Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The Issuer shall give the notice at least 45 days before the redemption date (or such shorter notice as may be acceptable to the Trustee).

 

 

SECTION 3.2 Selection of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officer’s Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner in accordance with the procedures of the Depository. The Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of the Series that have denominations larger than $2,000. Securities of the Series and portions of them it selects shall be in amounts of $2,000 or integral multiples of $1,000 in excess thereof or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.

 

SECTION 3.3 Notice of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 10 days but not more than 60 days before a redemption date, the Issuer shall mail a notice of redemption by first-class mail (or deliver such notice electronically in accordance with the procedures of the Depository) to each Holder whose Securities are to be redeemed.

 

The notice shall identify the Securities of the Series to be redeemed and shall state:

 

(a) the redemption date;

 

(b) the redemption price;

 

(c) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the redemption date upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Security;

 

(d) the name and address of the Paying Agent;

 

(e) that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

(f) that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date;

 

(g) the CUSIP, ISIN or Common Code numbers, if any, printed on the Securities being redeemed; and

 

(h) any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.

 

 

At the Issuer’s request and upon its provision of such notice information, the Trustee shall give the notice of redemption in the Issuer’s name and at its expense.

 

SECTION 3.4 Effect of Notice of Redemption. Once notice of redemption is mailed or delivered electronically as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date. On and after the redemption date, interest will cease to accrue on the Securities or any portion of the Securities called for redemption (unless the Issuer defaults in the payment of the redemption price and accrued interest).

 

SECTION 3.5 Deposit of Redemption Price. On or before 10:00 a.m. New York City time on the redemption date, the Issuer shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.

 

SECTION 3.6 Securities Redeemed in Part. Upon surrender of a certificated Security that is redeemed in part, the Trustee shall authenticate for the Holder a new certificated Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of the certificated Security surrendered.

 

ARTICLE IV

COVENANTS

 

SECTION 4.1 Payment of Principal and Interest. The Issuer covenants and agrees for the benefit of the Holders of each Series of Securities that the Issuer will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. Any amounts to be given to the Trustee or Paying Agent, shall be deposited with the Trustee or Paying Agent by 10:00 a.m., New York City time, by the Issuer. Such payments shall be considered made on the date due if on such date the Trustee or the Paying Agent holds, in accordance with this Indenture, money sufficient to make all payments with respect to such Securities then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.

 

SECTION 4.2 SEC Reports. The Issuer shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Issuer is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Issuer also shall comply with the other provisions of TIA ss. 314(a). For the avoidance of doubt, the Issuer will be deemed to have furnished such reports referred to above to the Trustee and the Holders, as applicable, if the Issuer has filed such reports with the SEC via its Electronic Data Gathering, Analysis and Retrieval (EDGAR) System filing system (or any successor system thereto) and such reports are publicly available. The Issuer will notify the Trustee of the filing by email or otherwise.

 

Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officer’s Certificate).

 

 

SECTION 4.3 Compliance Certificate. The Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Issuer, an Officer’s Certificate signed by one of the principal executive, financial or accounting officers of the Issuer, stating that a review of the activities of the Issuer and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Issuer has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge).

 

The Issuer will, so long as any of the Securities are outstanding, deliver in writing to a Responsible Officer of the Trustee, within 10 Business Days after becoming aware of any Default or Event of Default that is continuing, an Officer’s Certificate specifying such Default or Event of Default and what action the Issuer has taken, is taking or proposes to take with respect thereto.

 

SECTION 4.4 Stay, Extension and Usury Laws. The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.

 

SECTION 4.5 Corporate Existence. Subject to Article V, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership or other existence of each Significant Subsidiary in accordance with the respective organizational documents of each Significant Subsidiary and the rights (charter and statutory), licenses and franchises of the Issuer and the Significant Subsidiaries; provided, however, that the Issuer shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Significant Subsidiary, if the Issuer’s Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders.

 

SECTION 4.6 Taxes. The Issuer shall, and shall cause the Significant Subsidiaries to, pay prior to delinquency all material taxes, assessments and governmental levies, except as contested in good faith and by appropriate proceedings.

 

 

ARTICLE V

SUCCESSORS

 

SECTION 5.1 When the Issuer May Merge, Etc. The Issuer shall not consolidate with or merge into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor person”) unless:

 

(a) the successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction;

 

(b) the successor person expressly assumes by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the Issuer’s obligations on the Securities and under this Indenture; and

 

(c) immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.

 

The Issuer shall deliver to the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel stating that the proposed transaction and such supplemental indenture comply with this Indenture.

 

For purposes of the foregoing, the conveyance, transfer or lease of the properties and assets of one or more Subsidiaries of the Issuer (other than to the Issuer or another Subsidiary of the Issuer), which, if such assets were owned by the Issuer, would constitute all or substantially all of the properties and assets of the Issuer, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer, but a bona fide pledge or hypothecation will be deemed not to be prohibited by this Indenture.

 

SECTION 5.2 Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer in accordance with Section 5.1, the successor corporation formed by such consolidation or into or with which the Issuer is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such successor person has been named as the Issuer herein; provided, however, that the predecessor Issuer in the case of a sale, lease, conveyance or other disposition shall not be released from the obligation to pay the principal of and interest, if any, on the Securities. The Issuer, the Trustee and the successor person shall enter into a supplemental indenture to evidence the succession and substitution of such successor person and such discharge and release of the Issuer.

 

 

ARTICLE VI

DEFAULTS AND REMEDIES

 

SECTION 6.1 Events of Default.

 

“Event of Default,” wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officer’s Certificate, it is provided that such Series shall not have the benefit of said Event of Default:

 

(a) default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Issuer with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); or

 

(b) default in the payment of the principal, other than a scheduled installment payment, or premium, if any, of any Security of that Series when such payment becomes due and payable, at its Maturity, upon redemption, by acceleration or otherwise; or

 

(c) default in the deposit of any sinking fund payment, when as due in respect of any Security of that Series; or

 

(d) default in the performance or breach of any covenant or warranty of the Issuer in this Indenture (other than a covenant or warranty that has been included in this Indenture solely for the benefit of a Series of Securities other than that Series), which default continues uncured for a period of 60 days after there has been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

(e) (A) the Issuer’s failure to make any payment by the end of any applicable grace period after maturity of its indebtedness, which term as used in this clause (e) means obligations (other than nonrecourse obligations) of the Issuer for borrowed money or evidenced by bonds, debentures, notes or similar instruments in an amount (taken together with amounts in (B)) in excess of $100 million and continuance of such failure, or (B) the acceleration of its indebtedness in an amount (taken together with the amounts in (A)) in excess of $100 million because of a default with respect to such indebtedness without such indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled in case of (A) or (B) above, for a period of 30 days after written notice to the Issuer by the Trustee or to the Issuer and the Trustee by Holders of at least 25% in aggregate principal amount of the outstanding Securities of that Series; however, if any such failure or acceleration referred to in (A) or (B) above shall cease or be cured or be waived, rescinded or annulled in accordance with the terms of the applicable indebtedness, then the Event of Default by reason thereof shall be deemed not to have occurred;

 

 

(f) The Issuer or any of the Significant Subsidiaries pursuant to or within the meaning of any Bankruptcy Law:

 

(i) commences a voluntary case,

 

(ii) consents to the entry of an order for relief against it in an involuntary case,

 

(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property, or

 

(iv) makes a general assignment for the benefit of its creditors;

 

(g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

 

(i) is for relief against the Issuer or any of the Significant Subsidiaries in an involuntary case,

 

(ii) appoints a Custodian of the Issuer or any of the Significant Subsidiaries or for all or substantially all of its respective property, or

 

(iii) orders the liquidation of the Issuer or any of the Significant Subsidiaries, and the order or decree remains unstayed and in effect for 60 days; or

 

(h) any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, in accordance with Section 2.2.14.

 

The term “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or State law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.

 

SECTION 6.2 Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default as to the Issuer referred to in Section 6.1(f) or (g)) then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Issuer (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(f) or (g) shall occur as to the Issuer, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

 

 

At any time after such a declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Issuer and the Trustee, may rescind and annul such declaration and its consequences if:

 

(a) the Issuer has paid or deposited with the Trustee a sum sufficient to pay

 

(i) all overdue interest, if any, on all Securities that Series,

 

(ii) the principal of any Securities of that Series that has become due otherwise than by such declaration of and interest thereon at the rate or rates therefor in such Securities,

 

(iii) to the extent that payment of such interest is legally enforceable, interest upon any overdue principal and overdue interest at the rate or rates prescribed therefor in such Securities of that Series, and

 

(iv) all sums paid or advanced by the Trustee and the reasonable compensation, expenses, and advances of the Trustee, its agents and counsel; and

 

(b) all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest of Securities of that Series which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.

 

No such rescission shall affect any subsequent Default or impair any right consequent thereon.

 

SECTION 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee. The Issuer covenants, that if:

 

(a) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default for a period of 30 days, or

 

(b) default is made in the payment of principal of any Security at the Maturity thereof, or

 

(c) default is made in the deposit of any sinking fund payment when and as due by the terms of a Security,

 

then, the Issuer will, upon demand of the Trustee, pay to them, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal or any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

 

If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the property of the Issuer or any other obligor upon such Securities, wherever situated.

 

If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

SECTION 6.4 Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Issuer or any other obligor upon the Securities or the property of the Issuer or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Issuer for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,

 

(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, indemnity, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

 

(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.

 

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

SECTION 6.5 Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

 

SECTION 6.6 Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

First: To the payment of all amounts due the Trustee under Section 7.7; and

 

Second: To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and

 

Third: To the Issuer or as a court of competent jurisdiction may direct in a final non-appealable judgment.

 

SECTION 6.7 Limitation on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

 

(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;

 

(b) the Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

(c) such Holder or Holders have offered to the Trustee indemnity or security satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

 

(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.

 

 

SECTION 6.8 Unconditional Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

SECTION 6.9 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

SECTION 6.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

SECTION 6.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

SECTION 6.12 Control by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that

 

(a) such direction shall not be in conflict with any rule of law or with this Indenture,

 

(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

 

(c) subject to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.

 

 

SECTION 6.13 Waiver of Past Defaults. Subject to Section 6.2, the Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

SECTION 6.14 Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Issuer, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).

 

ARTICLE VII

TRUSTEE

 

SECTION 7.1 Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs.

 

(b) Except during the continuance of an Event of Default:

 

(i) The Trustee need perform only those duties that are specifically set forth in this Indenture and no others and no implied duties shall be read into this Indenture against the Trustee.

 

(ii) In the absence of gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

 

(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

 

(i) This paragraph does not limit the effect of paragraph (b) of this Section.

 

(ii) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.

 

(iii) The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.

 

(d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.

 

(e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.

 

(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

 

(g) No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.

 

(h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and subject to the standard of care as are set forth in paragraphs (b), (c), (f) and (g) of this Section with respect to the Trustee.

 

SECTION 7.2 Rights of Trustee.

 

(a) The Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.

 

 

(b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.

 

(c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depository.

 

(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers.

 

(e) The Trustee may consult with counsel of its choosing and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.

 

(g) The Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Securities, unless either (1) a Responsible Officer shall have actual knowledge of such default or Event of Default or (2) written notice of such default or Event of Default shall have been received by the Trustee at the Corporate Trust Office and such notice references this Indenture and the applicable Series of Securities.

 

(h) The permissive rights of the Trustee enumerated herein shall not be construed as duties.

 

(i) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

(j) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent, custodian and any other person employed to act hereunder.

 

(k) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.

 

 

SECTION 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Issuer or an Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.

 

SECTION 7.4 Trustee’s Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Issuer’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.

 

SECTION 7.5 Notice of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail (or deliver electronically in accordance with the procedures of the Depository) to each Securityholder of the Securities of that Series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Securityholders of that Series.

 

SECTION 7.6 Reports by Trustee to Holders. Within 60 days after [May 15] in each year commencing [May 15, 20[__]], the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such May 15, in accordance with, and to the extent required under, TIA ss. 313.

 

A copy of each report at the time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities of that Series are listed. The Issuer shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange.

 

SECTION 7.7 Compensation and Indemnity. The Issuer shall pay to the Trustee compensation as agreed to in writing between the Issuer and the Trustee from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.

 

The Issuer shall indemnify the Trustee, in each of its capacities hereunder, (including the cost of defending itself) against any claims, loss, liability or expense incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. The Issuer shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.

 

 

The Issuer need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee or agent of the Trustee through its own negligence or willful misconduct.

 

To secure the Issuer’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of that Series.

 

When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(f) or (g) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.

 

The provisions of this Section shall survive the termination of this Indenture and the resignation or removal of the Trustee.

 

SECTION 7.8 Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.

 

The Trustee may resign with respect to the Securities of one or more Series by so notifying the Issuer. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Issuer. The Issuer may remove the Trustee with respect to Securities of one or more Series if:

 

(a) the Trustee fails to comply with Section 7.10;

 

(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(c) a Custodian or public officer takes charge of the Trustee or its property; or

 

(d) the Trustee becomes incapable of acting.

 

If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities of the applicable Series may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.

 

If a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the Holders of at least 10% in principal amount of the Securities of the applicable Series may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

If the Trustee with respect to the Securities of any one or more Series fails to comply with Section 7.10, any Securityholder of the applicable Series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

 

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee at the expense of the Issuer subject to the lien provided for in Section 7.7, and the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail (or deliver electronically in accordance with the procedures of the Depository) a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to such replacement.

 

SECTION 7.9 Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.

 

SECTION 7.10 Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA ss.ss. 310(a) (1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA ss. 310(b).

 

SECTION 7.11 Preferential Collection of Claims. The Trustee is subject to TIA ss. 311(a), excluding any creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to the extent indicated.

 

ARTICLE VIII

SATISFACTION AND DISCHARGE; DEFEASANCE

 

SECTION 8.1 Satisfaction and Discharge of Indenture. This Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when

 

(a) either

 

(i) all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or

 

(ii) all such Securities not theretofore delivered to the Trustee for cancellation

 

(1) have become due and payable, or

 

(2) will become due and payable at their Stated Maturity within one year, or

 

 

(3) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, or

 

(4) are deemed paid and discharged pursuant to Section 8.3, as applicable;

 

and the Issuer, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;

 

(b) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and

 

(c) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive.

 

SECTION 8.2 Application of Trust Funds; Indemnification.

 

(a) Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4.

 

(b) The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.

 

(c) The Trustee shall deliver or pay to the Issuer from time to time upon Company Request any U.S. Government Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations held under this Indenture.

 

 

SECTION 8.3 Legal Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2.16, to be inapplicable to Securities of any Series, the Issuer shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of such Series on the 91st day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the Issuer, shall, at Company Request, execute proper instruments acknowledging the same), except as to:

 

(a) the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series;

 

(b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and

 

(c) the rights, powers, trust and immunities of the Trustee hereunder;

 

provided that, the following conditions shall have been satisfied:

 

(a) the Issuer shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust for making the purpose of the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities cash in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, which through the payment of interest, premium, if any, and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund or analogous payments) of, premium, if any, and interest, if any, on all the Securities of such Series on the dates such installments of interest or principal are due;

 

(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer is a party or by which it is bound;

 

(c) no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit;

 

 

(d) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;

 

(e) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer;

 

(f) such deposit shall not result in the trust arising from such deposit constituting an investment company (as defined in the U.S. Investment Company Act of 1940, as amended), or such trust shall be qualified under such Act or exempt from regulation thereunder; and

 

(g) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance by this Section have been complied with.

 

SECTION 8.4 Covenant Defeasance.

 

Unless this Section 8.4 is otherwise specified pursuant to Section 2.2.16 to be inapplicable to Securities of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the Issuer may omit to comply with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.5, 4.6 and 5.1 as well as any additional covenants contained in a supplemental indenture hereto for a particular Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2.16 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default under Section 6.1), with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:

 

(a) With reference to this Section 8.4, the Issuer has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities cash in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, which through the payment of interest, principal and premium, if any, in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay principal and interest, if any, on and any mandatory sinking fund in respect of the Securities of such Series on the dates such installments of interest or principal are due;

 

 

(b) Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer is a party or by which it is bound;

 

(c) No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;

 

(d) the Issuer shall have delivered to the Trustee an Opinion of Counsel confirming that Holders of the Securities of such Series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit and defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;

 

(e) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Issuer with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer; and

 

(f) The Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance contemplated by this Section 8.4 have been complied with.

 

SECTION 8.5 Repayment to the Issuer. The Trustee and the Paying Agent shall pay to the Issue upon request any money held by them for the payment of principal and interest that remains unclaimed for two years. After that, Securityholders entitled to the money must look to the Issuer for payment as general creditors unless an applicable abandoned property law designates another person.

 

SECTION 8.6 Reinstatement. If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 8.2 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s obligations under this Indenture and the Holders of Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1, 8.3 or 8.4 until such time as the Trustee or such Paying Agent is permitted to apply all such money in accordance with Section 8.2.

 

 

ARTICLE IX

AMENDMENTS AND WAIVERS

 

SECTION 9.1 Without Consent of Holders. The Issuer and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:

 

(a) to cure any ambiguity, defect or inconsistency;

 

(b) to comply with Article V;

 

(c) to provide for uncertificated Securities in addition to or in place of certificated Securities;

 

(d) to make any change that does not materially adversely affect in any material respect the legal rights of any Securityholder;

 

(e) to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;

 

(f) in the case of subordinated Securities, to make any change in the provisions of this Indenture or any supplemental indenture relating to subordination that would limit or terminate the benefits available to any holder of senior Debt under such provisions (but only if each such holder of senior Debt consents to such change);

 

(g) to add to, change or eliminate any of the provisions of this Indenture with respect to Securities of a Series; although no such addition, change or elimination may apply to Securities of any Series created prior to the execution of such amendment and entitled to the benefit of such provision, nor may any such amendment modify the rights of a Holder of any Security with respect to such provision, unless the amendment becomes effective only when there is no outstanding Security of any Series created prior to such amendment and entitled to the benefit of such provision;

 

(h) to secure the Securities of any Series;

 

(i) to add to the Issuer’s covenants or obligations under this Indenture for the protection of the Holders or surrender any right, power or option conferred by this Indenture on the Issuer;

 

(j) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or

 

(k) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.

 

 

SECTION 9.2 With Consent of Holders. (a) The Issuer and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such waiver by notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Issuer with any provision of this Indenture or the Securities with respect to such Series.

 

It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes effective, the Issuer shall mail (or deliver electronically in accordance with the procedures of the Depository) to the Holders of Securities affected thereby, a notice briefly describing the supplemental indenture or waiver. Any failure by the Issuer to mail (or deliver electronically in accordance with the procedures of the Depository) or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.

 

(b) Without the consent of each Securityholder affected, an amendment or waiver may not be made to, as to any non-consenting Securityholder:

 

(i) reduce the percentage of principal amount of outstanding Securities whose Holders must consent to an amendment, supplement or waiver;

 

(ii) reduce the rate of or change the time for payment of interest (including default interest) on any Security;

 

(iii) reduce the principal amount of or the premium, if any, on any Security or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;

 

(iv) in the case of any subordinated Securities, or coupons appertaining thereto, make any change in the provisions of this Indenture relating to subordination that adversely affects the rights of any Holder under such provisions;

 

(v) reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof;

 

(vi) waive a Default or Event of Default in the payment of the principal of, premium, if any, or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration);

 

 

(vii) make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;

 

(viii) make any change in Sections 6.8, 6.13 or 9.2; or

 

(ix) waive a redemption payment with respect to any Security or change any of the provisions with respect to the redemption of any Securities.

 

SECTION 9.3 Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.

 

SECTION 9.4 Revocation and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective.

 

Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (i) through (ix) of Section 9.2(b). In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.

 

SECTION 9.5 Notation on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Issuer in exchange for Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.

 

SECTION 9.6 Trustee Protected. In executing, or accepting the additional trusts created by any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 7.1) shall be fully protected in relying upon, in addition to the documents required by Section 10.4, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects its rights, duties, liabilities or immunities.

 

ARTICLE X

MISCELLANEOUS

 

SECTION 10.1 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.

 

 

SECTION 10.2 Notices. Any notice or communication by the Issuer or the Trustee to the other is duly given if in writing and delivered in person or mailed by first-class mail:

 

if to the Issuer:

Omnicom Group Inc.
280 Park Avenue
New York, New York 10017
Attention: General Counsel

 

if to the Trustee:

Deutsche Bank Trust Company Americas

Trust and Agency Services

 

1 Columbus Circle, 17th Floor

Mail Stop: NYC01-1710

New York, New York 10019, USA

Attention: Corporates Team/Omnicom AA6238

Facsimile: (732) 578-4635

The Issuer or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.

 

Any notice or communication to a Securityholder shall be mailed by first-class mail to their address shown on the register kept by the Registrar or delivered electronically in accordance with the procedures of the Depository. Failure to mail (or deliver electronically in accordance with the procedures of the Depository) a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.

 

If a notice or communication is mailed or published (or delivered electronically in accordance with the procedures of the Depository) in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.

 

If the Issuer mails (or delivers electronically in accordance with the procedures of the Depository) a notice or communication to Securityholders, it shall mail or deliver electronically a copy to the Trustee and each Agent at the same time.

 

SECTION 10.3 Communication by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA ss. 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series or all Series. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of TIA ss. 312(c).

 

 

SECTION 10.4 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee to take any action under this Indenture, the Issuer shall furnish to the Trustee:

 

(a) an Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and

 

(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.

 

SECTION 10.5 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA ss. 314(a) (4)) shall comply with the provisions of TIA ss. 314(e) and shall include:

 

(a) a statement that the person making such certificate or opinion has read such covenant or condition;

 

(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.

 

SECTION 10.6 Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.

 

SECTION 10.7 Legal Holidays. Unless otherwise provided by Board Resolution, Officer’s Certificate or supplemental indenture for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.

 

SECTION 10.8 No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Issuer shall not have any liability for any obligations of the Issuer under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability.

 

 

The waiver and release are part of the consideration for the issue of the Securities.

 

SECTION 10.9 Counterparts and Electronic Signature. This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Facsimile, documents executed, scanned and transmitted electronically and electronic signatures, including those created or transmitted through a software platform or application, shall be deemed original signatures for purposes of this Indenture and all matters and agreements related thereto, with such facsimile, scanned and electronic signatures having the same legal effect as original signatures. The parties agree that this Indenture or any instrument, agreement or document necessary for the consummation of the transactions contemplated by this Indenture or related hereto or thereto (including, without limitation, addendums, amendments, notices, instructions, communications with respect to the delivery of securities or the wire transfer of funds or other communications) (“Executed Documentation”) may be accepted, executed or agreed to through the use of an electronic signature in accordance with applicable laws, rules and regulations in effect from time to time applicable to the effectiveness and enforceability of electronic signatures. Any Executed Documentation accepted, executed or agreed to in conformity with such laws, rules and regulations will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any third-party electronic signature capture service providers as may be reasonably chosen by a signatory hereto or thereto. When the Trustee acts on any Executed Documentation sent by electronic transmission, the Trustee will not be responsible or liable for any losses, costs or expenses arising directly or indirectly from its reliance upon and compliance with such Executed Documentation, notwithstanding that such Executed Documentation (a) may not be an authorized or authentic communication of the party involved or in the form such party sent or intended to send (whether due to fraud, distortion or otherwise) or (b) may conflict with, or be inconsistent with, a subsequent written instruction or communication; it being understood and agreed that the Trustee shall conclusively presume that Executed Documentation that purports to have been sent by an authorized officer of a person has been sent by an authorized officer of such person. The party providing Executed Documentation through electronic transmission or otherwise with electronic signatures agrees to assume all risks arising out of such electronic methods, including, without limitation, the risk of the Trustee acting on unauthorized instructions and the risk of interception and misuse by third parties.

 

SECTION 10.10 Governing Laws. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.

 

SECTION 10.11 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Issuer or a Subsidiary of the Issuer. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

SECTION 10.12 Successors. All agreements of the Issuer in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.

 

 

SECTION 10.13 Severability. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SECTION 10.14 Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

 

SECTION 10.15 USA Patriot Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable Law”), the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, the Issuer agrees to provide to the Trustee, upon its request from time to time such identifying information and documentation as may be available for the Issuer in order to enable the Trustee to comply with Applicable Law.

 

SECTION 10.16 Force Majeure. The Trustee and the Agents shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee or any Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil or military disturbance or unrest, local or national disturbance or disaster, any nuclear or natural catastrophes, any act of terrorism, pandemics, epidemics, recognized public emergencies, quarantine restrictions, interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services, and hacking, cyber-attacks, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility); provided that nothing in this Section 10.16 shall alter the Trustee’s standard of care under the TIA; and provided further that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

SECTION 10.17 Consent to Jurisdiction; Waiver of Jury Trial. The Issuer agrees that any legal suit, action or proceeding brought by any party to enforce any rights under or with respect to this Indenture, any Security or any other document or the transactions contemplated hereby or thereby may be instituted in any state or federal court in The Borough of Manhattan, the City of New York, State of New York, United States of America, irrevocably waives to the fullest extent permitted by law any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, irrevocably waives to the fullest extent permitted by law any claim that and agrees not to claim or plead in any court that any such action, suit or proceeding brought in such court has been brought in an inconvenient forum and irrevocably submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding or for recognition and enforcement of any judgment in respect thereof.

 

 

To the extent that the Issuer or any of its Subsidiaries has or hereafter may acquire any immunity from jurisdiction of any court (including any court in the United States, the State of New York or other jurisdiction in which the Issuer or any successor thereof may be organized or any political subdivisions thereof) or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property or assets, this Indenture, the Securities, the transactions contemplated hereby or thereby or any other documents or actions to enforce judgments in respect of any thereof, then the Issuer hereby irrevocably waives, and will cause its Subsidiaries to waive, such immunity, and any defense based on such immunity, in respect of its obligations under the above-referenced documents and the transactions contemplated thereby, to the extent permitted by law.

 

THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE SECURITIES, THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.

 

ARTICLE XI

SINKING FUNDS

 

SECTION 11.1 Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.

 

The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the Securities of such Series.

 

SECTION 11.2 Satisfaction of Sinking Fund Payments with Securities. The Issuer may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is applicable and which have been redeemed either at the election of the Issuer pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officer’s Certificate with respect thereto, not later than 10 days prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Issuer any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Issuer to the Trustee of Securities of that Series purchased by the Issuer having an unpaid principal amount equal to the cash payment required to be released to the Issuer.

 

 

SECTION 11.3 Redemption of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Issuer will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Issuer shall thereupon be obligated to pay the amount therein specified.

 

Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuer in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.

 

	OMNICOM GROUP INC.
	By:
		Name:
		Title:

 

 

	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
	By:
		Name:
		Title:
	By:
		Name:
		Title:

 

 

EXHIBIT A Debt Security

 

Form of Face of Security

 

[Title of Series]

 

[If the Security is a Global Security, insert the following legend: THIS GLOBAL SECURITY IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.7 OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR TO ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO SUCH ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.]

 

[Insert any legend required by applicable securities laws and regulations or the Internal Revenue Code and the regulations thereunder.]

 

No. _____

 

[CUSIP] [Common Code] [ISIN] _____

 

$____________

 

 

OMNICOM GROUP INC., a New York corporation (the “Issuer,” which term includes any successor person under the Indenture hereinafter referred to), for value received, hereby promises to pay to _________, or registered assigns, the principal sum of _________ Dollars on _________, ____ [if the Security is to bear interest prior to Maturity, insert - and to pay interest thereon from _________ or from the most recent interest payment date to which interest has been paid] or duly provided for, [semi-annually on _________ and in each year] [If other than semi-annual payments, insert frequency of payments and payment dates], commencing ____________, at [If the Security is to bear interest at a fixed rate, insert - the rate of ____% per annum, set forth below] [If the Security is to bear interest at a variable or floating rate and if determined with reference to an index, refer to description of index below] until the principal hereof is paid or made available for payment [If applicable, insert - and (to the extent that the payment of such interest shall be legally enforceable) at the rate of ____% per annum on any overdue principal and premium and on any overdue installment of interest]. The interest so payable, and punctually paid or duly provided for, on any interest payment date will, as provided in such Indenture, be paid to the person in whose name this Security (or one or more predecessor securities) is registered at the close of business on the [regular] record date for such interest, which shall be the _________ or _________ (whether or not a Business Day), as the case may be, next preceding such interest payment date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such [regular] record date and may either be paid to the person in whose name this Security (or one or more predecessor securities) is registered at the close of business on a [special] record date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this Series not less than 10 days prior to such [special] record date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this Series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture).

 

[If the Securities are floating or adjustable rate securities with respect to which the principal of or any premium or interest may be determined with reference to an index, insert the text of the floating or adjustable rate provision.]

 

[If the Security is not to bear interest prior to Maturity, insert - The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at the rate of ____% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of ____% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.]

 

Payment of the principal of (and premium, if any) and [if applicable, insert - any such] interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in ______________, in accordance with the terms of the Indenture referred to on the reverse hereof in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Issuer payment of interest may be made by check mailed to the address of the person entitled thereto as such address shall appear in the Security register).

 

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

This Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with and governed by the laws of said state.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual or electronic signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

 

IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.

 

Dated:	OMNICOM GROUP INC.
	By:
	By:

 

 

Form of Trustee’s Certificate of Authentication.

 

The Trustee’s certificate of authentication shall be in substantially the following form:

 

This is one of the Securities of the Series designated therein referred to in the within-mentioned Indenture.

 

	Deutsche Bank Trust Company Americas, as Trustee
	By:
		Authorized Signatory

 

 

Form of Reverse of Security.

 

OMNICOM GROUP INC.

 

[Title of Series]

 

This Security is one of a duly authorized issue of securities of the Issuer, designated as its _________ due _________ (herein called the “Securities”), issued and to be issued in one or more Series under an Indenture, dated as of _________, [as amended by, [insert description of any applicable supplemental indentures]], herein [collectively] called the “Indenture”), between the Issuer and _________, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [, limited in aggregate principal amount to $__________]. Capitalized terms used in this Security and not defined herein have the meaning ascribed thereto in the Indenture.

 

_________, the Trustee under the Indenture has been appointed by the Issuer as paying agent, registrar, [conversion agent] and [custodian] with regard to the Securities.

 

In case an Event of Default shall have occurred and be continuing, the principal of and accrued interest on all Securities may be declared, and upon said declaration, shall become due and payable, in the manner, with the effect and subject to the conditions provided for in the Indenture.

 

[If applicable, insert - The Securities of this Series are subject to redemption upon not less than 10 days’ nor more than 60 days’ notice by mail (or electronic delivery in accordance with the procedures of the Depository), [if applicable, insert - (1) on _________ in any year commencing with the year ______ and ending with the year ______ through operation of the sinking fund for this Series at a redemption price equal to 100% of the principal amount, and (2)] at any time [on or after _________, ____] as a whole or in part, at the election of the Issuer, at the following redemption prices (expressed as percentages of the principal amount): If redeemed [on or before _________, ____% and if redeemed] during the 12-month period beginning of the years indicated,

 

Redemption Year		Price		Redemption Year		Price

 

and thereafter at a redemption price equal to ___________ of the principal amount, together in the case of any such redemption [if applicable, insert - (whether through operation of the sinking fund or otherwise)] with accrued interest to the redemption date, but interest installments whose stated Maturity is on or prior to such redemption date will be payable to the Holders of such Securities, or one or more predecessor securities, of record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.]

 

 

[If applicable, insert - The Securities of this Series are subject to redemption upon not less than 10 days’ nor more than 60 days’ notice by mail (or electronic delivery in accordance with the procedures of the Depository), (1) on _________ in any year commencing with the year ______ and ending with the year ______ through operation of the sinking fund for this Series at the redemption prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after _________], as a whole or in part, at the election of the Issuer, at the redemption prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning _________ of the years indicated,

 

Redemption Price For Redemption Through Operation of the Sinking Fund		Redemption Price For Redemption Otherwise Than Through Operation Year		Sinking Fund

 

and thereafter at a redemption price equal to ____% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the redemption date, but interest installments whose Stated Maturity in on or prior to such redemption date will be payable to the Holders of such Securities, or one or more predecessor securities, of record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.]

 

[The sinking fund for this Series provides for the redemption on ________ in each year beginning with the year _______ and ending with the year _______ of [not less than $________ “mandatory sinking fund”) and not more than] $________ aggregate principal amount of Securities of this Series. Securities of this Series acquired or redeemed by the Issuer otherwise than through [mandatory] sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made [in the inverse order in which they become due).]]

 

[If the Security is subject to redemption, insert - In the event of redemption of this Security in part only, a new Security or Securities of this Series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]

 

The Indenture contains provisions that permit the Issuer to elect either (1) to defease and be discharged from the entire indebtedness of this Security or (2) to be released from its obligations under certain restrictive covenants and Events of Default with respect to this Security, in each case upon payment in full of the Securities and compliance with certain conditions set forth in the Indenture.

 

 

[If the Security is convertible into or exchangeable for common stock of the Issuer, insert appropriate provisions and specify the conversion features and the form of conversion notice pursuant to the Form of Conversion Notice set forth herein.]

 

[If the Security is convertible into or exchangeable for other securities or property, specify the conversion features and the form of conversion notice pursuant to the Form of Conversion Notice set forth herein.]

 

[If the Security is not an Original Issue Discount Security, insert - If an Event of Default with respect to Securities of this Series shall occur and be continuing, the principal of the Securities of this Series may be declared due and payable in the manner and with the effect provided in the Indenture.]

 

[If the Security is an Original Issue-Discount Security, insert - If an Event of Default with respect to Securities of this Series shall occur and be continuing, an amount of principal of the Securities of this Series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to - Insert formula for determining the amount.

 

Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Issuer’s obligations in respect of the payment of the principal of and interest, if any, on the Securities of this Series shall terminate.]

 

[If Security is subordinate Debt, insert - The Issuer and each Holder of the Securities of this Series, by accepting such Securities, agree that the payment of the principal, premium, if any, and interest on such Securities is subordinated, to the extent and in the manner provided in the applicable [supplemental indenture][Officer’s Certificate] creating this Series, to the prior payment in full of all present and future Senior Debt, as defined in the applicable [supplemental indenture][Officer’s Certificate] and that the subordination provisions in the applicable [supplemental indenture][Officer’s Certificate] relating to this Series of Securities are for the benefit of the holders of Senior Debt. Each Holder of a Security by his or her acceptance thereof authorizes and directs the Trustee in his or her behalf to take such action as may be necessary or appropriate to effectuate the subordination provided for in the Indenture and appoints the Trustee his or her attorney-in-fact for any and all such purposes.]

 

The Indenture permits the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Securities of each Series to be affected under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time outstanding of each Series to be affected, with certain exceptions as therein provided with respect to certain modifications or amendments which may not be made without the consent of each Holder of such Security affected thereby. The Indenture also permits certain amendments and modifications thereto from time to time by the Issuer and the Trustee without the consent of the Holders of any Series of the Securities to be affected thereby for certain specified purposes, including curing ambiguities, defects or inconsistencies and making any such change that does not adversely affect the legal rights of any Holder of such Series of the Securities, as provided therein.

 

 

The Indenture contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each Series at the time outstanding, on behalf of the Holders of all Securities of such Series, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to such Series. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and Interest on this Security at the times, place and [rate(s)], and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the security register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this Series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Securities of this Series are issuable only in registered form without coupons in denominations of $__________ and integral multiples of $__________ in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this Series are exchangeable for a like aggregate principal amount of Securities of this Series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and none of the Issuer, the Trustee or any such agent shall be affected by notice to the contrary.

 

No recourse shall be had for the payment of the principal of (and premium, if any) or interest on this Security, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Issuer or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

 

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

 

A-8

Exhibit 4.17

 

Description of Securities

 

Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934

 

We have five classes of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”): (i) our common stock, par value $.15 per share (the “common stock”), (ii) the 0.800% Senior Notes due 2027 (the “2027 notes”) issued by Omnicom Finance Holdings plc (“OFHP”), (iii) the 1.400% Senior Notes due 2031 (the “2031 notes”) issued by OFHP, (iv) the 3.700% Senior Notes due 2032 (the “2032 notes”) issued by OFHP, and (iv) the 2.250% Senior Notes due 2033 (the “Sterling notes”) issued by Omnicom Capital Holdings plc (“OCHP”). The terms “Omnicom Group,” “we,” “us” and “our” refer to Omnicom Group Inc. together with its consolidated subsidiaries; the term “Omnicom Group Inc.” refers only to Omnicom Group Inc. and not its subsidiaries; the term “Omnicom Capital” refers only to Omnicom Capital Inc.; the term “OFHP” refers only to Omnicom Finance Holdings plc; and the term “OCHP” refers only to Omnicom Capital Holdings plc, in each case, unless the context otherwise requires or indicates.

 

DESCRIPTION OF OMNICOM GROUP INC. COMMON STOCK

 

The following briefly summarizes the material terms of Omnicom Group Inc.’s common stock. You should read the more detailed provisions of Omnicom Group Inc.’s restated certificate of incorporation for provisions that may be important to you.

 

General

 

Omnicom Group Inc.’s restated certificate of incorporation authorizes it to issue up to 1,000,000,000 shares of common stock, par value $.15 per share.

 

Each holder of common stock is entitled to one vote per share for the election of directors and for all other matters to be voted on by Omnicom Group Inc. shareholders. Holders of common stock may not cumulate their votes in the election of directors, and are entitled to share equally in the dividends that may be declared by the board of directors, but only after payment of dividends required to be paid on any outstanding shares of preferred stock.

 

Omnicom Group Inc.’s shareholders elect the full board of directors annually. An affirmative vote of the holders of a majority of votes cast is required for Omnicom Group Inc.’s shareholders to remove a director, amend Omnicom Group Inc.’s by-laws or its restated certificate of incorporation and to change the number of directors comprising the full board.

 

The board of directors also has power to amend the by-laws or change the number of directors comprising the full board. Upon voluntary or involuntary liquidation, dissolution or winding up of Omnicom Group Inc., the holders of the common stock share ratably in the assets remaining after payments to creditors and provision for the preference of any preferred stock. There are currently no preemptive or other subscription rights, conversion rights or redemption or scheduled installment payment provisions relating to shares of common stock. All of the outstanding shares of common stock are fully paid and nonassessable.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for the common stock is Equiniti Trust Company.

 

Listing

 

The common stock is listed on the New York Stock Exchange under the symbol “OMC.”

 

 

DESCRIPTION OF the 2027 notes and 2031 notes

 

We have previously filed a registration statement on Form S-3 (File No. 333-231652), which was filed with the Securities and Exchange Commission (the “SEC”) on May 21, 2019 and covers the issuance of the 2027 notes and 2031 notes.

 

The 2027 notes and 2031 notes were issued under an Indenture, dated as of July 8, 2019, as supplemented by the First Supplemental Indenture, dated as of July 8, 2019 (the “2027 and 2031 Notes Indenture”), among OFHP, as issuer, Omnicom Group Inc. and Omnicom Capital, as guarantors, and Deutsche Bank Trust Company Americas, as trustee. We have summarized certain portions of the 2027 and 2031 Notes Indenture herein. You should read the more detailed provisions of the 2027 and 2031 Notes Indenture for provisions which may be important to you.

 

General

 

2027 Notes

 

The 2027 notes were issued in an initial aggregate principal amount of €500 million. The notes were issued only in registered form, without coupons, in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof.

 

The specific terms of the 2027 notes are set forth below:

 

●

Title: 0.800% Senior Notes due 2027

 

●

Initial principal amount being issued: €500,000,000

 

●

Stated maturity date: July 8, 2027

 

●

Interest rate: 0.800%

 

●

Date interest starts accruing: July 8, 2019

 

●

Interest payment date: July 8 of each year

 

●

First interest payment date: July 8, 2020

 

●

Regular record date for interest: June 23 of each year

 

●

Computation of interest: Interest is computed on the basis of the actual number of days elapsed in the period for which interest is being calculated and the actual number of days from and including the last day on which interest was paid on the 2027 notes (or July 8, 2019 if no interest has been paid on the 2027 notes), to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) (as defined in the rulebook of the International Capital Markets Association).

 

●

Form of 2027 notes: The 2027 notes were issued in book-entry form, represented by one or more global notes deposited with or on behalf of a common depositary on behalf Euroclear and Clearstream, Luxembourg, and registered in the name of the nominee of the common depositary for the accounts of Euroclear and Clearstream, Luxembourg.

 

●

Sinking fund: The 2027 notes are not subject to any sinking fund.

 

●

Trustee: Deutsche Bank Trust Company Americas

 

●

Paying Agent, Transfer Agent and Registrar: Deutsche Bank Trust Company Americas

 

 

2031 Notes

 

The 2031 notes were issued in an initial aggregate principal amount of €500 million. The notes were issued only in registered form, without coupons, in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof.

 

The specific terms of the 2031 notes are set forth below:

 

●

Title: 1.400% Senior Notes due 2031

 

●

Initial principal amount being issued: €500,000,000

 

●

Stated maturity date: July 8, 2031

 

●

Interest rate: 1.400%

 

●

Date interest starts accruing: July 8, 2019

 

●

Interest payment date: July 8 of each year

 

●

First interest payment date: July 8, 2020

 

●

Regular record date for interest: June 23 of each year

 

●

Computation of interest: Interest is computed on the basis of the actual number of days elapsed in the period for which interest is being calculated and the actual number of days from and including the last day on which interest was paid on the 2031 notes (or July 8, 2019 if no interest has been paid on the 2031 notes), to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) (as defined in the rulebook of the International Capital Markets Association).

 

●

Form of 2031 notes: The 2031 notes were issued in book-entry form, represented by one or more global notes deposited with or on behalf of a common depositary on behalf Euroclear and Clearstream, Luxembourg, and registered in the name of the nominee of the common depositary for the accounts of Euroclear and Clearstream, Luxembourg.

 

●

Sinking fund: The 2031 notes are not subject to any sinking fund.

 

●

Trustee: Deutsche Bank Trust Company Americas

 

●

Paying Agent, Transfer Agent and Registrar: Deutsche Bank Trust Company Americas

 

Guarantee

 

Omnicom Group Inc. and Omnicom Capital have, jointly and severally, fully and unconditionally guaranteed the due and punctual payment of all obligations of OFHP under the 2027 and 2031 Notes Indenture, the 2027 notes and the 2031 notes, whether for the payment of principal of, premium, if any, or interest or any Additional Amounts (as defined below), on the 2027 notes and the 2031 notes or otherwise, when and as the same shall become due and payable, whether at maturity, upon redemption or otherwise. The guarantees will be unsecured and unsubordinated obligations of Omnicom Group Inc. and Omnicom Capital and will rank equally with all of their other unsecured and unsubordinated obligations.

 

Each of Omnicom Group Inc. and Omnicom Capital may, by execution and delivery to the trustee of a supplemental indenture, be released from their respective guarantees upon the sale or other transfer of no less than a majority of its capital stock or of all or substantially all of its assets to an entity that is not Omnicom Group Inc. or a subsidiary of Omnicom Group Inc. and which sale or other transfer is otherwise in compliance with the requirements of the 2027 and 2031 Notes Indenture (including, with respect to Omnicom Group Inc., the assumption by any successor person of Omnicom Group Inc.’s obligations with respect to the guarantee of the 2027 notes, the 2031 notes and the 2027 and 2031 Notes Indenture), which release shall be effective without any action on the part of the trustee or any holder of the 2027 notes or the 2031 notes. In addition, upon the redemption, defeasance, retirement or any other discharge in full of all of the Original Omnicom Capital Notes or if at any time Omnicom Capital no longer guarantees or co-issues any of the Original Omnicom Capital Notes, then Omnicom Capital may, by execution and delivery to the trustee of a supplemental indenture, be released from its guarantee of the 2027 notes or the 2031 notes, which release shall be effective without any action on the part of the trustee or any holder of the 2027 notes or the 2031 notes.

 

 

As used herein, the term “Original Omnicom Capital Notes” means together the (i) 3.65% Senior Notes due 2024 and (ii) 3.60% Senior Notes due 2026, in each case issued by Omnicom Group Inc. and Omnicom Capital.

 

Payments in Euro

 

Initial holders were required to pay for the 2027 notes and the 2031 notes in euro, and all payments of interest, principal and premium, if any, including payments made upon any redemption or repurchase of the 2027 notes and the 2031 notes, will be payable in euro. If, on or after June 24, 2019, the euro is unavailable to us due to the imposition of exchange controls or other circumstances beyond our control or if the euro is no longer being used by the then-member states of the European Economic and Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the 2027 notes and the 2031 notes will be made in U.S. dollars until the euro is again available to us or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent U.S. dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date (the “market exchange rate”). Any payment in respect of the 2027 notes and the 2031 notes so made in U.S. dollars will not constitute an event of default under the 2027 notes and the 2031 notes or the 2027 and 2031 Notes Indenture. Neither the trustee nor the paying agent for the 2027 notes and the 2031 notes has any responsibility for any calculation or conversion in connection with the foregoing.

 

Holders of the 2027 notes and the 2031 notes are subject to foreign exchange risks as to payments of principal and interest that may have important economic and tax consequences to them.

 

Business Day

 

For purposes of the 2027 notes and the 2031 notes, “Business Day” means any day other than a Saturday or Sunday, (1) which is not a day on which banking institutions in The City of New York or London are authorized or required by law, regulation or executive order to close and (2) on which the Trans-European Automated Real Time Gross Settlement Express Transfer system (the “TARGET2” system), or any successor thereto, is open.

 

Optional Redemption

 

Prior to April 8, 2027 (the date that is three months prior to the maturity date of the 2027 notes) and prior to April 8, 2031 (the date that is three months prior to the maturity date of the 2031 notes) (each, a “par call date”), the 2027 notes and the 2031 notes, respectively, are redeemable, as a whole or in part, at OFHP’s option, at any time or from time to time, upon mailed notice (or electronic notice, as applicable) to the registered address of each holder of the 2027 notes or the 2031 notes, as applicable, at least 15 days but not more than 60 days prior to the redemption. The redemption price will be equal to the greater of (1) 100% of the principal amount of the 2027 notes or the 2031 notes to be redeemed and (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) on such 2027 notes or 2031 notes discounted to the date of redemption, on an annual basis (assuming an ACTUAL/ACTUAL (ICMA) day count fraction), at the applicable Comparable Government Bond Rate (as defined below) plus 20 basis points with respect to the 2027 notes and 30 basis points with respect to the 2031 notes, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date, as calculated by an Independent Investment Banker.

 

On or after the applicable par call date, the 2027 notes and the 2031 notes will be redeemable, as a whole or in part, at OFHP’s option, at any time or from time to time, upon mailed notice (or electronic notice, as applicable) to the registered address of each holder of such 2027 notes or 2031 notes at least 15 days but not more than 60 days prior to the redemption at a redemption price of 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.

 

 

“Comparable Government Bond” means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an Independent Investment Banker, a bond that is a direct obligation of the Federal Republic of Germany (“German government bond”), whose maturity is closest to the maturity of the 2027 notes or the 2031 notes to be redeemed, or if such Independent Investment Banker in its discretion determines that such similar bond is not in issue, such other German government bond as such Independent Investment Banker may, with the advice of three brokers of, and/or market makers in, German government bonds selected by such Independent Investment Banker, determine to be appropriate for determining the Comparable Government Bond Rate.

 

“Comparable Government Bond Rate” means the price, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), at which the gross redemption yield on the 2027 notes or the 2031 notes to be redeemed, if they were to be purchased at such price on the third Business Day prior to the date fixed for redemption, would be equal to the gross redemption yield on such Business Day of the Comparable Government Bond on the basis of the middle market price of the Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by an Independent Investment Banker.

 

“Independent Investment Banker” means an investment bank of international standing appointed by us.

 

“Remaining Scheduled Payments” means, with respect to each 2027 note and 2031 note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related redemption date but for such redemption calculated as if the maturity date of such note was the applicable par call date; provided, however, that, if such redemption date is not an interest payment date with respect to such note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to, but excluding, such redemption date.

 

On and after the redemption date, interest will cease to accrue on the 2027 notes and the 2031 notes or any portion of the 2027 notes and the 2031 notes called for redemption (unless we default in the payment of the redemption price and accrued interest). On or before any redemption date, we will deposit with the paying agent (or the trustee) money sufficient to pay the redemption price of and accrued interest on the 2027 notes and the 2031 notes to be redeemed on such date.

 

If less than all of the 2027 notes or the 2031 notes are to be redeemed, the notes of such series to be redeemed shall be selected by such method as the trustee deems fair and appropriate, subject to the procedures of Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société anonyme, Luxembourg (“Clearstream, Luxembourg”) as to global notes.

 

Repurchase at the Option of Holders Upon Change of Control Triggering Event

 

Upon the occurrence of a Change of Control Triggering Event (as defined below) with respect to the 2027 notes or the 2031 notes, unless OFHP has exercised its option to redeem such 2027 notes or 2031 notes as described under ” -Optional Redemption,” each holder of such 2027 notes or 2031 notes will have the right to require OFHP to repurchase all or a portion of such holder’s 2027 notes or 2031 notes pursuant to a change of control offer described below (a “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of repurchase (the “Change of Control Payment”), subject to the right of holders of such 2027 notes or 2031 notes on the relevant record date to receive interest due on the relevant interest payment date.

 

Within 30 days following the date upon which OFHP becomes aware that a Change of Control Triggering Event has occurred with respect to the 2027 notes or the 2031 notes, or at OFHP’s option, prior to any Change of Control but after the public announcement of the pending Change of Control, OFHP will be required to send, by first class mail or electronic delivery, a notice to each holder of such 2027 notes or 2031 notes, with a copy to the trustee, which notice will govern the terms of the Change of Control Offer. Such notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is mailed or delivered, other than as may be required by law (the “Change of Control Payment Date”). The notice, if mailed or delivered prior to the date of consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

 

 

OFHP will not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by OFHP and such third party purchases all 2027 notes or 2031 notes properly tendered and not withdrawn under its offer.

 

To the extent that OFHP is required to offer to repurchase the 2027 notes or the 2031 notes upon the occurrence of a Change of Control Triggering Event with respect to such series, it may not have sufficient funds to purchase the 2027 notes or the 2031 notes in cash at such time. In addition, OFHP’s ability to purchase the 2027 notes or the 2031 notes for cash may be limited by law or the terms of other agreements relating to its indebtedness outstanding at the time. The failure to make such purchase would result in a default under the 2027 notes or the 2031 notes.

 

OFHP will be required to comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2027 notes or 2031 notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Offer provisions of the 2027 and 2031 Notes Indenture and the 2027 notes and 2031 notes, OFHP will be required to comply with those securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions of the 2027 and 2031 Notes Indenture and the 2027 notes and 2031 notes by virtue of any such compliance.

 

On each Change of Control Payment Date, the 2027 and 2031 Notes Indenture provides that OFHP will, to the extent lawful:

 

●

accept for payment all 2027 notes and 2031 notes or portions of the 2027 notes and 2031 notes properly tendered and not withdrawn pursuant to the Change of Control Offer;

 

●

deposit with the paying agent an amount equal to the Change of Control Payment in respect of all 2027 notes and 2031 notes or portions of 2027 notes and 2031 notes properly tendered and not withdrawn; and

 

●

deliver or cause to be delivered to the trustee the 2027 notes and the 2031 notes properly accepted together with an officer’s certificate stating the aggregate principal amount of 2027 notes and 2031 notes or portions of the 2027 notes and 2031 notes being repurchased.

 

“Below Investment Grade Rating Event” occurs if both the rating on the 2027 notes or the 2031 notes is lowered by each of the Rating Agencies and such 2027 notes or 2031 notes are rated below Investment Grade by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating of the applicable series of notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Triggering Event hereunder) if any of the Rating Agencies making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).

 

“Change of Control” means the occurrence of any of the following:

 

(1)

the sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of Omnicom Group Inc. and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to Omnicom Group Inc. or one of its subsidiaries;

 

(2)

the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than Omnicom Group Inc. or one of its wholly owned subsidiaries, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the then outstanding shares of Omnicom Group Inc.’s Voting Stock, measured by voting power rather than number of shares; or

 

(3)

the adoption of a plan relating to the liquidation or dissolution of Omnicom Group Inc.

 

 

Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Omnicom Group Inc. becomes a wholly owned subsidiary of a holding company and (ii) the holders of the Voting Stock of such holding company immediately following such transaction are substantially the same as the holders of Omnicom Group Inc.’s Voting Stock immediately prior to such transaction.

 

The definition of Change of Control includes a phrase relating to the sale, transfer, conveyance or other disposition of “all or substantially all” of the assets of Omnicom Group Inc. and its subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of 2027 notes or 2031 notes to require OFHP to repurchase such 2027 notes or 2031 notes as a result of a sale, transfer, conveyance or other disposition of less than all of the assets of Omnicom Group Inc. and its subsidiaries taken as a whole to another Person or group may be uncertain.

 

“Change of Control Triggering Event” with respect to the 2027 notes or the 2031 notes means the occurrence of both a Change of Control and a Below Investment Grade Rating Event with respect to such series.

 

“Investment Grade” means a rating equal to or higher than Baa3 (or its equivalent under any successor rating categories) by Moody’s and BBB- (or its equivalent under any successor rating categories) by S&P, or, in each case, if such Rating Agency ceases to rate the 2027 notes or 2031 notes or fails to make a rating of 2027 notes or 2031 notes publicly available for reasons outside of OFHP’s and Omnicom Group Inc.’s and Omnicom Capital’s control, the equivalent investment grade credit rating by the replacement agency selected by OFHP in accordance with the procedures described below.

 

“Moody’s” means Moody’s Investors Service, Inc., and its successors.

 

“Rating Agencies” means (1) each of Moody’s and S&P; and (2) if any of Moody’s or S&P ceases to rate the 2027 notes or the 2031 notes or fails to make a rating of the 2027 notes or the 2031 notes publicly available for reasons outside of OFHP’s and Omnicom Group Inc.’s and Omnicom Capital’s control, a “nationally recognized statistical rating organization,” as defined in Section 3(a)(62) of the Exchange Act, selected by OFHP as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

 

“S&P” means S&P Global Ratings, and its successors.

 

“Voting Stock” means, with respect to any person, capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such person, even if the right so to vote has been suspended by the happening of such a contingency.

 

Payment of Additional Amounts

 

Unless otherwise required by law, none of OFHP, Omnicom Group Inc. or Omnicom Capital will deduct or withhold from payments made by OFHP, Omnicom Group Inc. or Omnicom Capital under or with respect to the 2027 notes, the 2031 notes or the related guarantees on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”). In the event that OFHP, Omnicom Group Inc. or Omnicom Capital is required to withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the 2027 notes, the 2031 notes or the related guarantees, as the case may be, OFHP, Omnicom Group Inc. or Omnicom Capital, as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of the 2027 notes or the 2031 notes (including Additional Amounts) after such withholding or deduction will equal the amount that such holder would have received if such Taxes had not been required to be withheld or deducted.

 

 

Additional Amounts will not be payable with respect to a payment made to a holder of the 2027 notes, the 2031 notes, or a holder of beneficial interests in global securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for or on account of:

 

●

any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such 2027 notes or 2031 notes) or a fiduciary, settlor, beneficiary, member, shareholder or other equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability company, corporation or other entity:

 

●

is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such 2027 notes or 2031 notes, without another presence or business in such Taxing Jurisdiction);

 

●

has or had any present or former connection (other than the mere fact of ownership of such 2027 notes or 2031 notes) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof, being treated as being or having been a resident thereof or being or having been physically present therein;

 

●

(in relation to payments by Omnicom Group Inc. and Omnicom Capital only) is or was a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or

 

●

(in relation to payments by Omnicom Group Inc. and Omnicom Capital only) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of any of Omnicom Group Inc. or Omnicom Capital within the meaning of Section 871(h)(3) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”);

 

●

Taxes imposed on any holder that is not the sole beneficial owner of the 2027 notes or the 2031 notes, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner, or member received directly its beneficial or distributive share of the payment;

 

●

any estate, inheritance, gift, sales, transfer, excise, personal property or similar Taxes imposed with respect to the 2027 notes or the 2031 notes, except as otherwise provided in the 2027 and 2031 Notes Indenture;

 

●

any Taxes imposed solely as a result of the presentation of the 2027 notes or the 2031 notes (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the 2027 notes or the 2031 notes been presented for payment on any date during such 30-day period;

 

●

any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, or identity of such holder or connection with any Taxing Jurisdiction by such holder, if such compliance is required by statute, regulation, ruling or administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;

 

●

any Taxes that are payable by any method other than withholding or deduction by OFHP, Omnicom Group Inc. or Omnicom Capital or any paying agent from payments in respect of the 2027 notes or the 2031 notes;

 

●

any Taxes required to be withheld by any paying agent from any payment in respect of any 2027 notes or 2031 notes if such payment can be made without such withholding by at least one other paying agent;

 

 

●

any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, any intergovernmental agreement, or any law, rule, guidance or administrative practice implementing an intergovernmental agreement entered into in connection with such sections of the Code; or

 

●

any combination of the above conditions.

 

Each of OFHP, Omnicom Group Inc. and Omnicom Capital, as applicable, also:

 

●

will make such withholding or deduction of Taxes;

 

●

will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws;

 

●

will use its commercially reasonable efforts to obtain from each Taxing Jurisdiction imposing such Taxes certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld; and

 

●

upon request, will make available to the holders of the 2027 notes and the 2031 notes, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by OFHP, Omnicom Group Inc. or Omnicom Capital or if, notwithstanding OFHP’s, Omnicom Group Inc.’s or Omnicom Capital’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments.

 

At least 30 days prior to each date on which any payment under or with respect to the 2027 notes, the 2031 notes or related guarantees is due and payable, if OFHP, Omnicom Group Inc. or Omnicom Capital will be obligated to pay Additional Amounts with respect to such payment, OFHP, Omnicom Group Inc. or Omnicom Capital will deliver to the trustee an officer’s certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and such other information as is necessary to enable the trustee to pay such Additional Amounts to holders of such 2027 notes or 2031 notes on the payment date.

 

In addition, OFHP will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in the United Kingdom or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the 2027 notes and the 2031 notes.

 

The foregoing provisions shall survive any termination or the discharge of the 2027 and 2031 Notes Indenture and shall apply to any jurisdiction in which OFHP, Omnicom Group Inc. or Omnicom Capital or any successor to OFHP, Omnicom Group Inc. or Omnicom Capital, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein.

 

Whenever in the 2027 and 2031 Notes Indenture, any 2027 notes, 2031 notes, or the related guarantees there is mentioned, in any context, the payment of principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any 2027 notes or 2031 notes, such mention includes the payment of Additional Amounts to the extent payable in the particular context.

 

 

Redemption Upon Changes in Withholding Taxes

 

OFHP may redeem all, but not less than all, of the 2027 notes or the 2031 notes at a redemption price equal to 100% of the principal amount thereof, together with accrued interest, if any, to the redemption date and Additional Amounts, if any, under the following conditions:

 

●

if there is an amendment to, or change in, the laws, regulations, rulings or treaties of the United Kingdom, the United States or other jurisdiction in which OFHP, Omnicom Group Inc. or Omnicom Capital or, in each case, any successor thereof (including a successor person formed by a consolidation with OFHP, Omnicom Group Inc. or Omnicom Capital, into which OFHP, Omnicom Group Inc. or Omnicom Capital is merged, or that acquires or leases all or substantially all of the property and assets of OFHP, Omnicom Group Inc. or Omnicom Capital) may be incorporated, organized, or otherwise resident for tax purposes, or engaged in business for tax purposes, as applicable, or any political subdivision thereof or therein having the power to tax, or any jurisdiction from or through which payment is made by or on behalf of OFHP, Omnicom Group Inc. or Omnicom Capital (a “Taxing Jurisdiction”), or any change in the application or official interpretation of such laws, regulations, rulings or treaties, including any action taken by, or a change in published administrative practice of, a taxing authority or a holding by a court of competent jurisdiction, regardless of whether such action, change or holding is with respect to OFHP, Omnicom Group Inc. or Omnicom Capital;

 

●

as a result of such amendment or change, OFHP, Omnicom Group Inc. or Omnicom Capital becomes, or there is a substantial probability that OFHP, Omnicom Group Inc. or Omnicom Capital will become, obligated to pay Additional Amounts on the next payment date with respect to the 2027 notes or the 2031 notes (but, in the case of Omnicom Group Inc. or Omnicom Capital, only if the payment giving rise to such requirement cannot be made by OFHP, Omnicom Group Inc. or Omnicom Capital who can make such payment without the obligation to pay Additional Amounts);

 

●

the obligation to pay Additional Amounts cannot be avoided through OFHP’s, Omnicom Group Inc.’s or Omnicom Capital’s commercially reasonable measures, including, for the avoidance of doubt, the appointment of a new paying agent, but not including substitution of the obligor of the 2027 notes or the 2031 notes;

 

●

OFHP delivers to the trustee:

 

●

a certificate of OFHP, Omnicom Group Inc. or Omnicom Capital, as the case may be, stating that the obligation to pay Additional Amounts cannot be avoided by OFHP, Omnicom Group Inc. or Omnicom Capital, as the case may be, taking commercially reasonable measures available to it; and

 

●

a written opinion of independent tax counsel to OFHP, Omnicom Group Inc. or Omnicom Capital, as the case may be, of recognized standing to the effect that OFHP, Omnicom Group Inc. or Omnicom Capital, as the case may be, has, or there is a substantial probability that it will become obligated, to pay Additional Amounts as a result of a change, amendment, official interpretation or application described above; and

 

●

following the delivery of the certificate and opinion described in the previous bullet point, OFHP provides notice of redemption not less than 30 days, but not more than 60 days, prior to the date of redemption. The notice of redemption cannot be given more than 60 days before the earliest date on which OFHP, Omnicom Group Inc. or Omnicom Capital would otherwise be, or there is a substantial probability that it would otherwise be, required to pay Additional Amounts.

 

Upon the occurrence of each of the bullet points above, OFHP may redeem the 2027 notes or 2031 notes at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the redemption date.

 

 

Certain Covenants

 

Limitation on Liens

 

Omnicom Group Inc. will not, and will not permit any of its Subsidiaries to, create or suffer to exist any Lien on or with respect to any of Omnicom Group Inc.’s properties, whether now owned or hereafter acquired, to secure any Debt of Omnicom Group Inc., any direct or indirect Subsidiary or any other Person without securing the 2027 notes and the 2031 notes equally and ratably with such Debt to which such Liens relate for so long as such Debt shall be so secured, other than:

 

●

Permitted Liens;

 

●

purchase money Liens upon or in any real property or equipment acquired or held by Omnicom Group Inc. or any Subsidiary in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition of such property or equipment, or Liens existing on such property or equipment at the time of its acquisition (other than any such Liens created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover any properties of any character other than the real property or equipment being acquired and fixed improvements thereon or accessions thereto, and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or replaced;

 

●

Liens existing on June 24, 2019;

 

●

Liens on property of a Person existing at the time such Person is merged into, consolidated with, or acquired by Omnicom Group Inc. or any Subsidiary of Omnicom Group Inc. or becomes a Subsidiary of Omnicom Group Inc.; provided that such Liens were not created in contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person so merged into or consolidated with Omnicom Group Inc. or such Subsidiary or acquired by Omnicom Group Inc. or such Subsidiary;

 

●

Liens granted by Subsidiaries of Omnicom Group Inc. (other than OFHP and Omnicom Capital) to secure Debt owed to Omnicom Group Inc. or a wholly owned Subsidiary of Omnicom Group Inc.;

 

●

Liens arising out of a judgment, decree or order of court being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of Omnicom Group Inc. or the books of its Subsidiaries, as the case may be, in conformity with U.S. GAAP;

 

●

Debt of a Person existing at the time such Person is merged into or consolidated with Omnicom Group Inc. or becomes a Subsidiary of Omnicom Group Inc. provided that such Debt was not created in contemplation of such merger, consolidation or acquisition and provided further that the aggregate principal amount of such Debt shall not exceed $50,000,000 at any time outstanding;

 

●

Liens to secure any extension, renewal, refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Debt secured by Liens referred to above or Liens created in connection with any amendment, consent or waiver relating to such Debt, so long as such Lien does not extend to any other property, the amount of Debt secured is not increased (other than by the amount equal to any costs and expenses incurred in connection with any extension, renewal, refinancing or refunding) and the Debt so secured does not exceed the fair market value (as determined by the board of directors of Omnicom Group Inc. in good faith) of the assets subject to such Liens at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the case may be; and

 

●

Liens otherwise prohibited by this covenant, securing Debt, provided that the aggregate principal amount of such secured Debt shall not exceed 20% of the Consolidated Net Worth of Omnicom Group Inc. and its Subsidiaries at any time.

 

Certain Definitions

 

Set forth below are certain defined terms used herein:

 

“Consolidated Net Worth” means the consolidated net worth of Omnicom Group Inc., as determined in accordance with generally accepted accounting principles in the United States of America or U.S. GAAP.

 

 

“Debt” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than earn-out payment obligations of such Person in connection with the purchase of property or services to the extent they are still contingent), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under leases to the extent that such leases have been or should be, in accordance with U.S. GAAP, recorded as finance leases, (f) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all obligations of such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below and other payment obligations guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to in clauses (a) through (h) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt.

 

“Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other similar agreements.

 

“Lien” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement intended to provide security for the payment or performance of an obligation, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.

 

“Permitted Liens” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent not yet due and payable, or being contested in good faith by appropriate proceedings; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings that prevent the forfeiture or sale of the asset subject to such Lien; (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations or, in any such case, to secure reimbursement obligations under letters of credit or bonds issued to support such obligations; and (d) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes.

 

“Person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding voting stock of such Person, (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other subsidiaries or by one or more of such Person’s other subsidiaries.

 

Consolidation, Merger or Sale

 

Omnicom Group Inc. may not consolidate with or merge into, or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to, any person, referred to as a “successor person,” unless:

 

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either (a) Omnicom Group Inc. is the continuing person or (b) the resulting, surviving or transferee person is an entity organized under the laws of the United States;

 

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the successor person expressly assumes Omnicom Group Inc.’s obligations with respect to its guarantee of the 2027 notes, the 2031 notes and the 2027 and 2031 Notes Indenture;

 

 

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immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing; and

 

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Omnicom Group Inc. or the successor person has delivered to the trustee the certificates and opinions required under the 2027 and 2031 Notes Indenture.

 

OFHP may not consolidate with or merge into, or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to, any person, referred to as a “successor person,” except with, into or to Omnicom Group Inc. or Omnicom Capital or any other subsidiary of Omnicom Group Inc. (provided that the successor person (if any) expressly assumes by a supplemental indenture OFHP’s obligations on the 2027 notes, the 2031 notes, and under the 2027 and 2031 Notes Indenture), unless:

 

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either (a) OFHP is the continuing person or (b) the resulting, surviving or transferee person is an entity organized under the laws of the United Kingdom, any member country of the European Union or the United States;

 

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the successor person expressly assumes OFHP’s obligations with respect to the 2027 notes, the 2031 notes and the 2027 and 2031 Notes Indenture;

 

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immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing; and

 

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OFHP or the successor person has delivered to the trustee the certificates and opinions required under the 2027 and 2031 Notes Indenture.

 

Listing

 

The 2027 notes and the 2031 notes are listed on the New York Stock Exchange under the symbol “OMC/27” and “OMC/31”, respectively.

 

Defeasance

 

The 2027 and 2031 Notes Indenture provides OFHP may specify with respect to either the 2027 notes or 2031 notes that after OFHP, Omnicom Group Inc. or Omnicom Capital has deposited with the trustee, cash or government securities, in trust for the benefit of the holders sufficient to pay the principal of, premium, if any, and interest on and any mandatory sinking fund payments in respect of such 2027 notes or 2031 notes when due, then OFHP, Omnicom Group Inc. and Omnicom Capital:

 

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will be deemed to have paid and satisfied their obligations on all outstanding 2027 notes or 2031 notes, which is known as “defeasance and discharge”; or

 

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will cease to be under any obligation, other than to pay when due the principal of, premium, if any, and interest on and any mandatory sinking fund payments in respect of such 2027 notes or 2031 notes, which is known as “covenant defeasance.”

 

In each case, OFHP or Omnicom Group Inc. or Omnicom Capital must also deliver to the trustee an opinion of counsel to the effect that the holders of the 2027 notes or 2031 notes will have no United States federal income tax consequences as a result of such deposit.

 

In addition, the 2027 and 2031 Notes Indenture provides that if Omnicom Group Inc. chooses to have the defeasance and discharge provision applied to the 2027 notes or 2031 notes, the subordination provisions of the 2027 and 2031 Notes Indenture will become ineffective upon full defeasance of the 2027 notes or 2031 notes.

 

When there is a defeasance and discharge, with limited exceptions, (1) the 2027 and 2031 Notes Indenture will no longer govern the 2027 notes or the 2031 notes, (2) none of OFHP, Omnicom Group Inc. or Omnicom Capital will be liable for payment, and (3) the holders of the 2027 notes or the 2031 notes will be entitled only to the deposited funds. When there is a covenant defeasance, however, OFHP will continue to be obligated to make payments when due if the deposited funds are not sufficient.

 

 

For purposes of the 2027 notes and the 2031 notes, “government securities” means securities denominated in euro that are (i) direct obligations of the Federal Republic of Germany, the payments of which are supported by the full faith and credit of the German government or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the Federal Republic of Germany the timely payments of which are unconditionally guaranteed as a full faith and credit obligation of the German government, which, in either case under clauses (i) or (ii) are not callable or redeemable at the option of the issuer thereof.

 

Modification of the Indenture

 

Under the 2027 and 2031 Notes Indenture, OFHP, Omnicom Group Inc., Omnicom Capital and the trustee may enter into supplemental indentures without obtaining the consent of any holder of 2027 notes or 2031 notes:

 

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to cure any ambiguity, defect or inconsistency;

 

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to comply with the 2027 and 2031 Notes Indenture’s provisions regarding successor corporations;

 

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to comply with any requirements of the SEC in connection with the qualification of the 2027 and 2031 Notes Indenture under the Trust Indenture Act of 1939, as amended;

 

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to provide for global notes in addition to or in place of certificated notes;

 

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to add to, change or eliminate any of the provisions of the 2027 and 2031 Notes Indenture with respect to the 2027 notes or the 2031 notes; although no such addition, change or elimination may apply to the 2027 notes or the 2031 notes created prior to the execution of such amendment and entitled to the benefit of such provision, nor may any such amendment modify the rights of a holder of the 2027 notes or the 2031 notes with respect to such provision, unless the amendment becomes effective only when there is no outstanding 2027 notes or 2031 notes created prior to such amendment and entitled to the benefit of such provision;

 

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to secure the 2027 notes, the 2031 notes or any guarantees thereof;

 

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to add an additional guarantor of the 2027 notes or the 2031 notes;

 

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to add to OFHP’s, Omnicom Group Inc.’s or Omnicom Capital’s covenants or obligations under the 2027 and 2031 Notes Indenture for the protection of the holders of the 2027 notes and the 2031 notes or surrender any right, power or option conferred by the 2027 and 2031 Notes Indenture on OFHP, Omnicom Group Inc. or Omnicom Capital;

 

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to make any change that does not materially adversely affect in any material respect the legal rights of any holder; or

 

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to establish additional series of 2027 notes and 2031 notes as permitted by the 2027 and 2031 Notes Indenture.

 

OFHP, Omnicom Group Inc., Omnicom Capital and the trustee may, with the consent of the holders of at least a majority in aggregate principal amount of the 2027 notes or the 2031 notes, modify the 2027 and 2031 Notes Indenture or the rights of the holders of the 2027 notes or the 2031 notes. No modifications may, without the consent of the holder of the 2027 notes or the 2031 notes, be made that, as to any non-consenting holders:

 

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reduce the percentage of 2027 notes or the 2031 notes whose holders need to consent to the modification;

 

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reduce the rate or change the time of payment of interest on the 2027 notes or the 2031 notes;

 

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reduce the principal amount of or the premium, if any, on the 2027 notes or the 2031 notes;

 

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change the fixed maturity of any of the 2027 notes or the 2031 notes;

 

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reduce the amount of, or postpone the date fixed for, the payment of any sinking fund;

 

 

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reduce the principal amount payable upon acceleration of the maturity of any 2027 notes or 2031 notes issued originally at a discount;

 

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waive a default in the payment of the principal amount of, the premium, if any, or any interest on the 2027 notes or the 2031 notes;

 

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change the currency in which any of the 2027 notes or the 2031 notes are payable;

 

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impair the right to sue for the enforcement of any payment on or after the maturity of the 2027 notes or the 2031 notes;

 

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release Omnicom Group Inc. or Omnicom Capital from their obligations in respect of the guarantee of the 2027 notes or the 2031 notes or modify Omnicom Group Inc.’s or Omnicom Capital’s obligations thereunder other than in accordance with the provisions of the 2027 and 2031 Notes Indenture; or

 

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waive a redemption payment with respect to the 2027 notes or the 2031 notes.

 

Events of Default

 

The 2027 and 2031 Notes Indenture provides that events of default regarding the 2027 notes and the 2031 notes are:

 

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failure to pay required interest on any note of such series for 30 days;

 

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failure to pay principal, other than a scheduled installment payment, or premium, if any, on any note of the series when due;

 

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failure to make any required deposit of any sinking fund payment when due;

 

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failure to perform for 60 days after notice any other covenant in the 2027 and 2031 Notes Indenture (other than a covenant included in the 2027 and 2031 Notes Indenture solely for the benefit of a series of notes other than such series);

 

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(A) OFHP’s, Omnicom Group Inc.’s or Omnicom Capital’s failure to make any payment by the end of any applicable grace period after maturity of their respective indebtedness, which term as used in this clause means obligations (other than nonrecourse obligations) of OFHP, Omnicom Group Inc. or Omnicom Capital, as applicable, for borrowed money or evidenced by bonds, debentures, notes or similar instruments in an amount (taken together with amounts in (B)) in excess of $100 million and continuance of such failure, or (B) the acceleration of their respective indebtedness in an amount (taken together with the amounts in (A)) in excess of $100 million because of a default with respect to such indebtedness without such indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled in case of (A) or (B) above, for a period of 30 days after written notice to OFHP, Omnicom Group Inc. and Omnicom Capital by the trustee or to OFHP, Omnicom Group Inc., Omnicom Capital and the trustee by the holders of not less than 25% in aggregate principal amount of the outstanding 2027 notes or the 2031 notes; however, if any such failure or acceleration referred to in (A) or (B) above shall cease or be cured or be waived, rescinded or annulled in accordance with the terms of the 2027 notes or 2031 notes, then the event of default by reason thereof shall be deemed not to have occurred;

 

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Omnicom Group Inc.’s guarantee applicable to the 2027 notes or 2031 notes ceases to be in full force and effect or is declared null and void or Omnicom Group Inc. denies that it has any further liability under its guarantee of the 2027 notes or 2031 notes to the holders of 2027 notes or 2031 notes, or has given notice to such effect (other than by reason of the release of such guarantee in accordance with the 2027 and 2031 Notes Indenture), and such condition shall have continued for a period of 30 days after written notice has been given to OFHP, Omnicom Group Inc. and Omnicom Capital by the trustee or to OFHP, Omnicom Group Inc., Omnicom Capital and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding 2027 notes or 2031 notes;

 

 

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certain events of bankruptcy or insolvency, whether voluntary or not; or

 

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any other event of default described in the 2027 and 2031 Notes Indenture.

 

If an event of default (other than the bankruptcy provision) regarding any series of 2027 notes or 2031 notes issued under the 2027 and 2031 Notes Indenture should occur and be continuing, either the trustee or the holders of 25% in the principal amount of outstanding 2027 notes or 2031 notes may declare the respective 2027 notes or 2031 notes due and payable. If a bankruptcy event occurs, the principal of and accrued and unpaid interest on the 2027 notes or 2031 notes shall immediately become due and payable without any declaration or other act on the part of the trustee or the holders of the 2027 notes or 2031 notes. The holders of a majority in principal amount of the 2027 notes or 2031 notes may rescind any other declaration or acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing events of default have been cured or waived (other than nonpayment of principal or interest that has become due solely as a result of acceleration). OFHP, Omnicom Group Inc. and Omnicom Capital are required to file annually with the trustee a statement of an officer as to the fulfillment by OFHP, Omnicom Group Inc. and Omnicom Capital of their respective obligations under the 2027 and 2031 Notes Indenture during the preceding year.

 

Holders of a majority in principal amount of the outstanding 2027 notes or 2031 notes will be entitled to control certain actions of the trustee under the 2027 and 2031 Notes Indenture. Holders of a majority in principal amount of the outstanding 2027 notes or 2031 notes also will be entitled to waive past defaults regarding the respective series, except for a default in payment of principal, premium or interest or a default in a covenant or provision which may not be modified or amended without the consent of each holder of a 2027 note or 2031 note. The trustee generally may not be ordered or directed by any of the holders of the 2027 notes or 2031 notes to take any action, unless one or more of the holders shall have offered to the trustee security or indemnity satisfactory to it.

 

If an event of default occurs and is continuing regarding the 2027 notes or 2031 notes, the trustee may use any sums that it holds under the 2027 and 2031 Notes Indenture for its own reasonable compensation and expenses incurred prior to paying the holders of the 2027 notes or 2031 notes.

 

Before any holder of either the 2027 notes or 2031 notes may institute action for any remedy, except payment on the holder’s 2027 notes or 2031 notes when due, the holders of not less than 25% in principal amount of the 2027 notes or 2031 notes outstanding must request the trustee to take action. Holders must also offer and give the trustee security and indemnity satisfactory to it against liabilities incurred by the trustee for taking such action.

 

Book-Entry; Delivery and Form

 

The information in this section concerning Euroclear and Clearstream, Luxembourg and their book-entry systems and procedures has been obtained from sources that we believe to be reliable, but none of OFHP, Omnicom Group Inc. or Omnicom Capital takes any responsibility for the accuracy of this information. In addition, the description of the clearing systems in this section reflects OFHP’s understanding of the rules and procedures of Euroclear and Clearstream, Luxembourg as they are currently in effect. Those clearing systems could change their rules and procedures at any time.

 

The 2027 notes and the 2031 notes were initially represented by one or more fully registered global notes without interest coupons. Each such global note was deposited with, or on behalf of, a common depositary, and registered in the name of the nominee of the common depositary for the accounts of Euroclear and Clearstream, Luxembourg. Except as described herein, certificates will not be issued in exchange for beneficial interests in the global notes.

 

Except as set forth below, the global notes may be transferred, in whole and not in part, only to Euroclear or Clearstream, Luxembourg or their respective nominees. Holders may hold their interests in the global notes through Euroclear or Clearstream, Luxembourg, either as a participant in such systems or indirectly through organizations which are participants in such systems. Beneficial interests in the global notes are in denominations of €100,000 and integral multiples of €1,000 in excess thereof. Euroclear and Clearstream, Luxembourg will hold interests in the global notes on behalf of their respective participating organizations or customers through customers’ securities accounts in Euroclear or Clearstream, Luxembourg’s names on the books of their respective depositaries. Book-entry interests in the 2027 notes and the 2031 notes and all transfers relating to the 2027 notes and the the 2031 notes will be reflected in the book-entry records of Euroclear and Clearstream, Luxembourg. The address of Euroclear is 1 Boulevard Roi Albert II, 1210 Brussels, Belgium, and the address of Clearstream, Luxembourg is 42 Avenue JF Kennedy, L-1855 Luxembourg, Luxembourg.

 

 

The distribution of the 2027 notes and the 2031 notes was cleared through Euroclear and Clearstream, Luxembourg. Any secondary market trading of book-entry interests in the notes will take place through Euroclear and Clearstream, Luxembourg participants and will settle in same-day funds. Owners of book-entry interests in the 2027 notes and the 2031 notes will receive payments relating to their notes in euro, except as otherwise set forth in the 2027 and 2031 Notes Indenture.

 

Euroclear and Clearstream, Luxembourg have established electronic securities and payment transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow the 2027 notes and the 2031 notes to be issued, held and transferred among the clearing systems without the physical transfer of certificates. Special procedures to facilitate clearance and settlement have been established among these clearing systems to trade securities across borders in the secondary market.

 

The policies of Euroclear and Clearstream, Luxembourg govern payments, transfers, exchanges and other matters relating to the investor’s interest in the 2027 notes and the 2031 notes held by them. We have no responsibility for any aspect of the records kept by Euroclear or Clearstream, Luxembourg or any of their direct or indirect participants. We also do not supervise these systems in any way.

 

Euroclear and Clearstream, Luxembourg and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. Investors should be aware that they are not obligated to perform or continue to perform these procedures and may modify them or discontinue them at any time.

 

Certificated Notes

 

If the depositary for any of the 2027 notes or the 2031 notes represented by a registered global note is at any time unwilling, unable or no longer qualified to continue as depositary for the registered global note of such series and a successor is not appointed by OFHP within 90 days, OFHP will issue 2027 notes or 2031 notes in definitive form in exchange for the registered global note of such series that had been held by the depositary. 2027 notes and 2031 notes issued in definitive form in exchange for a registered global note of such series will be registered in the name or names that the depositary gives to the trustee or other relevant agent of the trustee. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global note of such series that had been held by the depositary.

 

DESCRIPTION OF 2032 NOTES

 

We have previously filed a registration statement on Form S-3 (File No. 333-261046), which was filed with the SEC on November 17, 2021 and covers the issuance of the 2032 notes.

 

The 2032 notes were issued under an Indenture, dated as of March 6, 2024, as supplemented by the First Supplemental Indenture, dated as of March 6, 2024 (the “2032 Notes Indenture”), among OFHP, as issuer, Omnicom Group Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee. We have summarized certain portions of the 2032 Notes Indenture herein. You should read the more detailed provisions of the 2032 Notes Indenture for provisions which may be important to you.

 

General

 

2032 Notes

 

The 2032 notes were issued in an initial aggregate principal amount of €600 million. The notes were issued only in registered form, without coupons, in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof.

 

The specific terms of the 2032 notes are set forth below:

 

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Title: 3.700% Senior Notes due 2032

 

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Initial principal amount being issued: €600,000,000

 

 

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Stated maturity date: March 6, 2032

 

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Interest rate: 3.700%

 

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Date interest starts accruing: March 6, 2024

 

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Interest payment date: March 6 of each year

 

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First interest payment date: March 6, 2025

 

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Regular record date for interest: March 6 of each year

 

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Computation of interest: Interest will be computed on the basis of the actual number of days elapsed in the period for which interest is being calculated and the actual number of days from and including the last day on which interest was paid on the 2032 notes (or March 6, 2024 if no interest has been paid on the 2032 notes), to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) (as defined in the rulebook of the International Capital Markets Association).

 

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Form of 2032 notes: The 2032 notes were issued in book-entry form, represented by one or more global notes deposited with or on behalf of a common depositary on behalf Euroclear and Clearstream, Luxembourg, and registered in the name of the nominee of the common depositary for the accounts of Euroclear and Clearstream, Luxembourg.

 

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Sinking fund: The 2032 notes are not subject to any sinking fund.

 

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Trustee: Deutsche Bank Trust Company Americas

 

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Paying Agent, Transfer Agent and Registrar: Deutsche Bank Trust Company Americas

 

Guarantee

 

Omnicom Group Inc. has fully and unconditionally guaranteed the due and punctual payment of all obligations of OFHP under the 2032 Notes Indenture and the 2032 notes, whether for the payment of principal of, premium, if any, or interest or any Additional Amounts (as defined below), on the 2032 notes or otherwise, when and as the same shall become due and payable, whether at maturity, upon redemption or otherwise. The guarantees will be unsecured and unsubordinated obligations of Omnicom Group Inc. and will rank equally with all of its other unsecured and unsubordinated obligations.

 

Payments in Euro

 

Initial holders were required to pay for the 2032 notes in euro, and all payments of interest, principal and premium, if any, including payments made upon any redemption or repurchase of the 2032 notes, will be payable in euro. If, on or after February 28, 2024, the euro is unavailable to us due to the imposition of exchange controls or other circumstances beyond our control or if the euro is no longer being used by the then-Member States of the European Economic and Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the 2032 notes will be made in U.S. dollars until the euro is again available to us or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars by us at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent U.S. dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date (the “market exchange rate”). Any payment in respect of the 2032 notes so made in U.S. dollars will not constitute an event of default under the 2032 notes or the 2032 Notes Indenture. Neither the trustee nor the paying agent for the 2032 notes has any responsibility for any calculation or conversion in connection with the foregoing.

 

 

Holders of the 2032 notes are subject to foreign exchange risks as to payments of principal and interest that may have important economic and tax consequences to them.

 

Business Day

 

For purposes of the 2032 notes, “Business Day” means any day other than a Saturday or Sunday, (1) which is not a day on which banking institutions in The City of New York or London are authorized or required by law, regulation or executive order to close and (2) on which the Trans-European Automated Real Time Gross Settlement Express Transfer system (the “TARGET2” system), or any successor thereto, is open.

 

Optional Redemption

 

Prior to December 6, 2031 (the date that is three months prior to the maturity date of the 2032 notes (the “par call date”)), the 2032 notes are redeemable, as a whole or in part, at OFHP’s option, at any time or from time to time, upon mailed notice (or electronic notice, as applicable) to the registered address of each holder of such 2032 notes at least 15 days but not more than 60 days prior to the redemption. The redemption price, as determined by us, will be equal to the greater of (1) 100% of the principal amount of the 2032 notes to be redeemed and (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) on such 2032 notes discounted to the date of redemption, on an annual basis (assuming an ACTUAL/ACTUAL (ICMA) day count fraction), at the applicable Comparable Government Bond Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.

 

On or after the par call date, the 2032 notes will be redeemable, as a whole or in part, at OFHP’s option, at any time or from time to time, upon mailed notice (or electronic notice, as applicable) to the registered address of each holder of such 2032 notes at least 15 days but not more than 60 days prior to the redemption at a redemption price of 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.

 

“Comparable Government Bond” means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by us, a German federal government bond whose maturity is closest to the maturity of the 2032 notes to be redeemed, or if such independent investment bank in its discretion determines that such similar bond is not in issue, such other German federal government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German federal government bonds selected by us, determine to be appropriate for determining the Comparable Government Bond Rate.

 

“Comparable Government Bond Rate” means the price, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), at which the gross redemption yield on the notes to be redeemed, if they were to be purchased at such price on the third Business Day prior to the date fixed for redemption, of the Comparable Government Bond would be equal to the gross redemption yield on such Business Day of the Comparable Government Bond on the basis of the middle market price of such Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by an independent investment bank selected by us.

 

“Remaining Scheduled Payments” means, with respect to each 2032 note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related redemption date but for such redemption calculated as if the maturity date of such 2032 note was the par call date; provided, however, that, if such redemption date is not an interest payment date with respect to such 2032 note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to, but excluding, such redemption date.

 

On and after the redemption date, interest will cease to accrue on the 2032 notes or any portion of the 2032 notes called for redemption (unless we default in the payment of the redemption price and accrued interest). On or before any redemption date, we will deposit with the paying agent (or the trustee) money sufficient to pay the redemption price of and accrued interest on the 2032 notes to be redeemed on such date.

 

 

If less than all of the 2032 notes are to be redeemed, the 2032 notes to be redeemed shall be selected by such method as the trustee deems fair and appropriate, subject to the procedures of Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société anonyme, Luxembourg (“Clearstream, Luxembourg”) as to global notes.

 

Repurchase at the Option of Holders Upon Change of Control Triggering Event

 

Upon the occurrence of a Change of Control Triggering Event (as defined below), unless OFHP has exercised its option to redeem the 2032 notes as described under “-Optional Redemption,” each holder of such 2032 notes will have the right to require OFHP to repurchase all or a portion of such holder’s 2032 notes pursuant to a change of control offer described below (a “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of repurchase (the “Change of Control Payment”), subject to the right of holders of 2032 notes on the relevant record date to receive interest due on the relevant interest payment date.

 

Within 30 days following the date upon which OFHP becomes aware that a Change of Control Triggering Event has occurred, or at OFHP’s option, prior to any Change of Control but after the public announcement of the pending Change of Control, OFHP will be required to send, by first class mail or electronic delivery, a notice to each holder of 2032 notes, with a copy to the trustee, which notice will govern the terms of the Change of Control Offer. Such notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is mailed or delivered, other than as may be required by law (the “Change of Control Payment Date”). The notice, if mailed or delivered prior to the date of consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

 

OFHP will not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by OFHP and such third party purchases all 2032 notes properly tendered and not withdrawn under its offer.

 

To the extent that OFHP is required to offer to repurchase the 2032 notes upon the occurrence of a Change of Control Triggering Event, it may not have sufficient funds to purchase the 2032 notes in cash at such time. In addition, OFHP’s ability to purchase the 2032 notes for cash may be limited by law or the terms of other agreements relating to its indebtedness outstanding at the time. The failure to make such purchase would result in a default under the 2032 notes.

 

OFHP will be required to comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2032 notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Offer provisions of the 2032 Notes Indenture and the 2032 notes, OFHP will be required to comply with those securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions of the 2032 Notes Indenture and the 2032 notes by virtue of any such compliance.

 

On the Change of Control Payment Date, the 2032 Notes Indenture provides that OFHP will, to the extent lawful:

 

●

accept for payment all 2032 notes or portions of 2032 notes properly tendered and not withdrawn pursuant to the Change of Control Offer;

 

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deposit with the paying agent an amount equal to the Change of Control Payment in respect of all 2032 notes or portions of 2032 notes properly tendered and not withdrawn; and

 

 

●

deliver or cause to be delivered to the trustee the 2032 notes properly accepted together with an officer’s certificate stating the aggregate principal amount of 2032 notes or portions of 2032 notes being repurchased.

 

“Below Investment Grade Rating Event” occurs if both the rating on the 2032 notes is lowered by each of the Rating Agencies and such 2032 notes are rated below Investment Grade by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating of the 2032 notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Triggering Event hereunder) if any of the Rating Agencies making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).

 

“Change of Control” means the occurrence of any of the following:

 

(1)

the sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of Omnicom Group Inc. and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to Omnicom Group Inc. or one of its subsidiaries;

 

(2)

the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than Omnicom Group Inc. or one of its wholly owned subsidiaries, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the then outstanding shares of Omnicom Group Inc.’s Voting Stock, measured by voting power rather than number of shares; or

 

(3)

the adoption of a plan relating to the liquidation or dissolution of Omnicom Group Inc.

 

Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Omnicom Group Inc. becomes a wholly owned subsidiary of a holding company and (ii) the holders of the Voting Stock of such holding company immediately following such transaction are substantially the same as the holders of Omnicom Group Inc.’s Voting Stock immediately prior to such transaction.

 

The definition of Change of Control includes a phrase relating to the sale, transfer, conveyance or other disposition of “all or substantially all” of the assets of Omnicom Group Inc. and its subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of 2032 notes to require OFHP to repurchase such 2032 notes as a result of a sale, transfer, conveyance or other disposition of less than all of the assets of Omnicom Group Inc. and its subsidiaries taken as a whole to another Person or group may be uncertain.

 

“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

 

“Investment Grade” means a rating equal to or higher than Baa3 (or its equivalent under any successor rating categories) by Moody’s and BBB- (or its equivalent under any successor rating categories) by S&P, or, in each case, if such Rating Agency ceases to rate the 2032 notes or fails to make a rating of the 2032 notes publicly available for reasons outside of OFHP’s and Omnicom Group Inc.’s control, the equivalent investment grade credit rating by the replacement agency selected by OFHP in accordance with the procedures described below.

 

“Moody’s” means Moody’s Investors Service, Inc., and its successors.

 

 

“Rating Agencies” means (1) each of Moody’s and S&P; and (2) if any of Moody’s or S&P ceases to rate the 2032 notes or fails to make a rating of the 2032 notes publicly available for reasons outside of OFHP’s and Omnicom Group Inc.’s control, a “nationally recognized statistical rating organization,” as defined in Section 3(a)(62) of the Exchange Act, selected by OFHP as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

 

“S&P” means S&P Global Ratings, and its successors.

 

“Voting Stock” means, with respect to any person, capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such person, even if the right so to vote has been suspended by the happening of such a contingency.

 

Payment of Additional Amounts

 

Unless otherwise required by law, none of OFHP or Omnicom Group Inc. will deduct or withhold from payments made by OFHP or Omnicom Group Inc. under or with respect to the 2032 notes and the guarantee on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”). In the event that OFHP or Omnicom Group Inc. is required to withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the 2032 notes or the related guarantee, as the case may be, OFHP or Omnicom Group Inc., as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of 2032 notes (including Additional Amounts) after such withholding or deduction will equal the amount that such holder would have received if such Taxes had not been required to be withheld or deducted.

 

Additional Amounts will not be payable with respect to a payment made to a holder of 2032 notes or a holder of beneficial interests in global securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for or on account of:

 

●

any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such 2032 notes) or a fiduciary, settlor, beneficiary, member, shareholder or other equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability company, corporation or other entity:

 

●

is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such 2032 notes, without another presence or business in such Taxing Jurisdiction);

 

●

has or had any present or former connection (other than the mere fact of ownership of such 2032 notes) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof, being treated as being or having been a resident thereof or being or having been physically present therein;

 

●

(in relation to payments by Omnicom Group Inc. only) is or was a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or

 

●

(in relation to payments by Omnicom Group Inc. only) is or was a “10-percent shareholder” of Omnicom Group Inc. within the meaning of Section 871(h)(3) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or any successor provisions;

 

●

Taxes imposed on any holder that is not the sole beneficial owner of the 2032 notes, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner, or member received directly its beneficial or distributive share of the payment;

 

 

●

any estate, inheritance, gift, sales, transfer, excise, personal property or similar Taxes imposed with respect to the 2032 notes, except as otherwise provided in the 2032 Notes Indenture;

 

●

any Taxes imposed solely as a result of the presentation of such 2032 notes (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the 2032 notes been presented for payment on any date during such 30-day period;

 

●

any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, or identity of such holder or connection with any Taxing Jurisdiction by such holder, if such compliance is required by statute, regulation, ruling or administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;

 

●

any Taxes that are payable by any method other than withholding or deduction by OFHP or Omnicom Group Inc. or any paying agent from payments in respect of such 2032 notes;

 

●

any Taxes required to be withheld by any paying agent from any payment in respect of the 2032 notes if such payment can be made without such withholding by at least one other paying agent in the United States or the United Kingdom;

 

●

any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, any intergovernmental agreement, or any law, rule, guidance or administrative practice implementing an intergovernmental agreement entered into in connection with such sections of the Code; or

 

●

any combination of the above conditions.

 

Each of OFHP and Omnicom Group Inc., as applicable, also:

 

●

will make such withholding or deduction of Taxes;

 

●

will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws;

 

●

will use its commercially reasonable efforts to obtain from each Taxing Jurisdiction imposing such Taxes certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld; and

 

●

upon request, will make available to the holders of the 2032 notes, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by OFHP or Omnicom Group Inc. or if, notwithstanding OFHP’s or Omnicom Group Inc.’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments.

 

At least 30 days prior to each date on which any payment under or with respect to the 2032 notes or related guarantee is due and payable, if OFHP or Omnicom Group Inc. will be obligated to pay Additional Amounts with respect to such payment, OFHP or Omnicom Group Inc. will deliver to the trustee an officer’s certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and such other information as is necessary to enable the trustee to pay such Additional Amounts to holders of such 2032 notes on the payment date.

 

In addition, OFHP will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in the United Kingdom or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the 2032 notes.

 

 

The foregoing provisions shall survive any termination or the discharge of the 2032 Notes Indenture and shall apply to any jurisdiction in which OFHP, Omnicom Group Inc. or any successor to OFHP or Omnicom Group Inc., as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein.

 

Whenever in the 2032 Notes Indenture, any 2032 notes or the related guarantee there is mentioned, in any context, the payment of principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any 2032 notes, such mention includes the payment of Additional Amounts to the extent payable in the particular context.

 

Redemption Upon Changes in Withholding Taxes

 

OFHP may redeem all, but not less than all, of the 2032 notes at a redemption price equal to 100% of the principal amount thereof, together with accrued interest, if any, to the redemption date and Additional Amounts, if any, under the following conditions:

 

●

if there is an amendment to, or change in, the laws, regulations, rulings or treaties of the United Kingdom, the United States or other jurisdiction in which OFHP or Omnicom Group Inc. or, in each case, any successor thereof (including a successor person formed by a consolidation with OFHP or Omnicom Group Inc., into which OFHP or Omnicom Group Inc. is merged, or that acquires or leases all or substantially all of the property and assets of OFHP or Omnicom Group Inc.) may be incorporated, organized, or otherwise resident for tax purposes, or engaged in business for tax purposes, as applicable, or any political subdivision thereof or therein having the power to tax, or any jurisdiction from or through which payment is made by or on behalf of OFHP or Omnicom Group Inc. (a “Taxing Jurisdiction”), or any change in the application or official interpretation of such laws, regulations, rulings or treaties, including any action taken by, or a change in published administrative practice of, a taxing authority or a holding by a court of competent jurisdiction, regardless of whether such action, change or holding is with respect to OFHP or Omnicom Group Inc.;

 

●

as a result of such amendment or change, OFHP or Omnicom Group Inc. becomes, or there is a substantial probability that OFHP or Omnicom Group Inc. will become, obligated to pay Additional Amounts on the next payment date with respect to the 2032 notes (but, in the case of Omnicom Group Inc., only if the payment giving rise to such requirement cannot be made by OFHP or Omnicom Group Inc. who can make such payment without the obligation to pay Additional Amounts);

 

●

the obligation to pay Additional Amounts cannot be avoided through OFHP’s or Omnicom Group Inc.’s commercially reasonable measures, including, for the avoidance of doubt, the appointment of a new paying agent, but not including substitution of the obligor of the 2032 notes;

 

●

OFHP or Omnicom Group Inc., as the case may be:

 

●

delivers to the trustee a certificate of OFHP or Omnicom Group Inc., as the case may be, stating that the obligation to pay Additional Amounts cannot be avoided by OFHP or Omnicom Group Inc., as the case may be, taking commercially reasonable measures available to it; and

 

●

based upon a written opinion of independent tax counsel to OFHP or Omnicom Group Inc., as the case may be, of recognized standing to the effect that OFHP or Omnicom Group Inc., as the case may be, has, or there is a substantial probability that it will become, obligated to pay Additional Amounts as a result of a change, amendment, official interpretation or application described above; and

 

●

following the delivery of the certificate and opinion described in the previous bullet point, OFHP provides notice of redemption not less than 30 days, but not more than 60 days, prior to the date of redemption. The notice of redemption cannot be given more than 60 days before the earliest date on which OFHP or Omnicom Group Inc. would otherwise be, or there is a substantial probability that it would otherwise be, required to pay Additional Amounts.

 

 

Upon the occurrence of each of the bullet points above, OFHP may redeem the 2032 notes at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the redemption date.

 

Certain Covenants

 

Limitation on Liens

 

Omnicom Group Inc. will not, and will not permit any of its Subsidiaries to, create or suffer to exist any Lien on or with respect to any of Omnicom Group Inc.’ properties, whether now owned or hereafter acquired, to secure any Debt of Omnicom Group Inc., any direct or indirect Subsidiary or any other Person without securing the 2032 notes equally and ratably with such Debt to which such Liens relate for so long as such Debt shall be so secured, other than:

 

●

Permitted Liens;

 

●

purchase money Liens upon or in any real property or equipment acquired or held by Omnicom Group Inc. or any Subsidiary in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition of such property or equipment, or Liens existing on such property or equipment at the time of its acquisition (other than any such Liens created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover any properties of any character other than the real property or equipment being acquired and fixed improvements thereon or accessions thereto, and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or replaced;

 

●

Liens existing on February 28, 2024;

 

●

Liens on property of a Person existing at the time such Person is merged into, consolidated with, or acquired by Omnicom Group Inc. or any Subsidiary of Omnicom Group Inc. or becomes a Subsidiary of Omnicom Group Inc.; provided that such Liens were not created in contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person so merged into or consolidated with Omnicom Group Inc. or such Subsidiary or acquired by Omnicom Group Inc. or such Subsidiary;

 

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Liens granted by Subsidiaries of Omnicom Group Inc. (other than OFHP) to secure Debt owed to Omnicom Group Inc. or a wholly owned Subsidiary of Omnicom Group Inc.;

 

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Liens arising out of a judgment, decree or order of court being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of Omnicom Group Inc. or the books of its Subsidiaries, as the case may be, in conformity with U.S. GAAP;

 

●

Debt of a Person existing at the time such Person is merged into or consolidated with Omnicom Group Inc. or becomes a Subsidiary of Omnicom Group Inc. provided that such Debt was not created in contemplation of such merger, consolidation or acquisition and provided further that the aggregate principal amount of such Debt shall not exceed $50,000,000 at any time outstanding;

 

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Liens to secure any extension, renewal, refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Debt secured by Liens referred to above or Liens created in connection with any amendment, consent or waiver relating to such Debt, so long as such Lien does not extend to any other property, the amount of Debt secured is not increased (other than by the amount equal to any costs and expenses incurred in connection with any extension, renewal, refinancing or refunding) and the Debt so secured does not exceed the fair market value (as determined by the board of directors of Omnicom Group Inc. in good faith) of the assets subject to such Liens at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the case may be;

 

 

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any assignment of accounts receivable (a) by and among Omnicom Group Inc. and its Subsidiaries or (b) pursuant to non-recourse factoring or similar arrangements or otherwise in an aggregate amount not to exceed in any fiscal year the greater of $500,000,000 (measured as the face value of such accounts receivable at the time of assignment) and 10.0% of the consolidated accounts receivable of Omnicom Group Inc. and its Subsidiaries as reflected in the consolidated balance sheet of Omnicom Group Inc. as of the end of the fiscal year of Omnicom Group Inc. most recently ended prior to such assignment for which financial statements are available; and

 

●

Liens otherwise prohibited by this covenant, securing Debt or other obligations in an aggregate amount at any time outstanding plus (b) the aggregate face value at the time of assignment of such accounts receivable assigned, the assignment of which is not otherwise permitted by the foregoing exceptions, in an aggregate amount not to exceed 20% of Consolidated Net Worth of Omnicom Group Inc. and its Subsidiaries as set forth in Omnicom Group Inc.’s most recently available financial statements.

 

Certain Definitions

 

Set forth below are certain defined terms used herein:

 

“Consolidated Net Worth” means the consolidated net worth of Omnicom Group Inc., as determined in accordance with generally accepted accounting principles in the United States of America or U.S. GAAP.

 

“Debt” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than earn-out payment obligations of such Person in connection with the purchase of property or services to the extent they are still contingent), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under leases to the extent that such leases have been or should be, in accordance with U.S. GAAP, recorded as finance leases, (f) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all obligations of such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below and other payment obligations guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to in clauses (a) through (h) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt.

 

“Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other similar agreements.

 

“Lien” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement intended to provide security for the payment or performance of an obligation, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.

 

“Permitted Liens” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent not yet due and payable, or being contested in good faith by appropriate proceedings; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings that prevent the forfeiture or sale of the asset subject to such Lien; (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations or, in any such case, to secure reimbursement obligations under letters of credit or bonds issued to support such obligations; and (d) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes.

 

 

“Person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding voting stock of such Person, (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other subsidiaries or by one or more of such Person’s other subsidiaries.

 

Consolidation, Merger or Sale

 

OFHP and Omnicom Group Inc. may not consolidate with or merge into, or convey, transfer or lease their respective properties and assets as an entirety or substantially as an entirety to, any person, referred to as a “successor person,” except in the case of OFHP with, into or to Omnicom Group Inc. or any other subsidiary of Omnicom Group Inc. (provided that the successor person (if any) expressly assumes by a supplemental indenture OFHP’s obligations on the 2032 notes and under the 2032 Notes Indenture), unless:

 

●

either (a) OFHP or Omnicom Group Inc., as applicable, is the successor person or (b) the successor person is an entity organized under the laws of (i) in the case of OFHP, the United Kingdom, any member country of the European Union or the United States or (ii) in the case of Omnicom Group Inc., the United States;

 

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the successor person expressly assumes (a) in the case of OFHP, OFHP’s obligations with respect to the 2032 notes and the 2032 Notes Indenture or (b) in the case of Omnicom Group Inc., Omnicom Group Inc.’s obligations with respect to its guarantee of 2032 notes and the 2032 Notes Indenture;

 

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immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing; and

 

●

OFHP or Omnicom Group Inc., as applicable, or the successor person has delivered to the trustee the certificates and opinions required under the 2032 Notes Indenture.

 

Listing

 

The 2032 notes are listed on the New York Stock Exchange under the symbol “OMC/32”.

 

Defeasance

 

The 2032 Notes Indenture will provide that OFHP may specify with respect to the 2032 notes that after OFHP or Omnicom Group Inc. has deposited with the trustee, cash or government securities, in trust for the benefit of the holders sufficient to pay the principal of, premium, if any, and interest on and any mandatory sinking fund payments in respect of the 2032 notes when due, then OFHP and Omnicom Group Inc.:

 

●

will be deemed to have paid and satisfied their obligations on all outstanding 2032 notes, which is known as “defeasance and discharge”; or

 

 

●

will cease to be under any obligation, other than to pay when due the principal of, premium, if any, and interest on and any mandatory sinking fund payments in respect of such debt securities, relating to the 2032 notes, which is known as “covenant defeasance.”

 

In each case, OFHP or Omnicom Group Inc. must also deliver to the trustee an opinion of counsel to the effect that the holders of the 2032 notes will have no United States federal income tax consequences as a result of such deposit.

 

In addition, the 2032 Notes Indenture provides that if Omnicom Group Inc. chooses to have the defeasance and discharge provision applied to the 2032 notes, the subordination provisions of the 2032 Notes Indenture will become ineffective upon full defeasance of the 2032 notes.

 

When there is a defeasance and discharge, with limited exceptions, (1) the 2032 Notes Indenture will no longer govern the 2032 notes, (2) neither OFHP nor Omnicom Group Inc. will be liable for payment, and (3) the holders of the 2032 notes will be entitled only to the deposited funds. When there is a covenant defeasance, however, OFHP will continue to be obligated to make payments when due if the deposited funds are not sufficient.

 

For purposes of the 2032 notes, “government securities” means securities denominated in euro that are (i) direct obligations of the Federal Republic of Germany, the payments of which are supported by the full faith and credit of the German federal government or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the Federal Republic of Germany, the timely payments of which are unconditionally guaranteed as a full faith and credit obligation of the German federal government, which, in either case under clauses (i) or (ii) are not callable or redeemable at the option of the issuer thereof.

 

Modification of the 2032 Notes Indenture

 

Under the 2032 Notes Indenture, OFHP, Omnicom Group Inc., and the trustee may enter into supplemental indentures without obtaining the consent of any holder of 2032 notes:

 

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to cure any ambiguity, defect or inconsistency;

 

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to comply with the 2032 Notes Indenture’s provisions regarding successor corporations;

 

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to comply with any requirements of the SEC in connection with the qualification of the 2032 Notes Indenture under the Trust Indenture Act of 1939, as amended;

 

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to provide for global notes in addition to or in place of certificated notes;

 

●

to add to, change or eliminate any of the provisions of the 2032 Notes Indenture with respect to the 2032 notes; although no such addition, change or elimination may apply to the 2032 notes created prior to the execution of such amendment and entitled to the benefit of such provision, nor may any such amendment modify the rights of a holder of any such 2032 notes with respect to such provision, unless the amendment becomes effective only when there is no outstanding 2032 notes created prior to such amendment and entitled to the benefit of such provision;

 

●

to secure the 2032 notes or any guarantee thereof;

 

●

to add an additional guarantor of any series of 2032 notes;

 

●

to add to OFHP’s or Omnicom Group Inc.’s covenants or obligations under the 2032 Notes Indenture for the protection of the holders of the 2032 notes or surrender any right, power or option conferred by the 2032 Notes Indenture on OFHP or Omnicom Group Inc.;

 

●

to make any change that does not materially adversely affect in any material respect the legal rights of any holder; or

 

●

to establish additional series of 2032 notes as permitted by the 2032 Notes Indenture.

 

 

OFHP, Omnicom Group Inc. and the trustee may, with the consent of the holders of at least a majority in aggregate principal amount of the 2032 notes, modify the 2032 Notes Indenture or the rights of the holders of the 2032 notes. No modifications may, without the consent of the holder of the 2032 notes, be made that, as to any non-consenting holders:

 

●

reduce the percentage of 2032 notes whose holders need to consent to the modification;

 

●

reduce the rate or change the time of payment of interest on the 2032 notes;

 

●

reduce the principal amount of or the premium, if any, on the 2032 notes;

 

●

change the fixed maturity of any of the 2032 notes;

 

●

reduce the amount of, or postpone the date fixed for, the payment of any sinking fund;

 

●

reduce the principal amount payable upon acceleration of the maturity of any 2032 notes issued originally at a discount;

 

●

waive a default in the payment of the principal amount of, the premium, if any, or any interest on the 2032 notes;

 

●

change the currency in which any of the 2032 notes are payable;

 

●

impair the right to sue for the enforcement of any payment on or after the maturity of the 2032 notes;

 

●

release Omnicom Group Inc. from its obligations in respect of the guarantee of the 2032 notes or modify Omnicom Group Inc.’s obligations thereunder other than in accordance with the provisions of the 2032 Notes Indenture; or

 

●

waive a redemption payment with respect to the 2032 notes.

 

Events of Default

 

The 2032 Notes Indenture provides that events of default regarding the 2032 notes are:

 

●

failure to pay required interest on the 2032 notes for 30 days;

 

●

failure to pay principal, other than a scheduled installment payment, or premium, if any, on the 2032 notes when due;

 

●

failure to make any required deposit of any sinking fund payment when due;

 

●

failure to perform for 60 days after notice any other covenant in the 2032 Notes Indenture (other than a covenant included in the 2032 Notes Indenture solely for the benefit of a series of notes other than the 2032 notes);

 

●

(A) OFHP’s or Omnicom Group Inc.’s failure to make any payment by the end of any applicable grace period after maturity of their respective indebtedness, which term as used in this clause means obligations (other than nonrecourse obligations) of OFHP or Omnicom Group Inc., as applicable, for borrowed money or evidenced by bonds, debentures, notes or similar instruments in an amount (taken together with amounts in (B)) in excess of $100 million and continuance of such failure, or (B) the acceleration of their respective indebtedness in an amount (taken together with the amounts in (A)) in excess of $100 million because of a default with respect to such indebtedness without such indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled in case of (A) or (B) above, for a period of 30 days after written notice to OFHP and Omnicom Group Inc. by the trustee or to OFHP, Omnicom Group Inc., and the trustee by the holders of not less than 25% in aggregate principal amount of the outstanding 2032 notes; however, if any such failure or acceleration referred to in (A) or (B) above shall cease or be cured or be waived, rescinded or annulled in accordance with the terms of the 2032 notes, then the event of default by reason thereof shall be deemed not to have occurred;

 

 

●

Omnicom Group Inc.’s guarantee applicable to the 2032 notes ceases to be in full force and effect or is declared null and void or Omnicom Group Inc. denies that it has any further liability under its guarantee of the 2032 notes to the holders of such 2032 notes, or has given notice to such effect (other than by reason of the release of such guarantee in accordance with the 2032 Notes Indenture), and such condition shall have continued for a period of 30 days after written notice has been given to OFHP and Omnicom Group Inc. by the trustee or to OFHP, Omnicom Group Inc. and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding 2032 notes;

 

●

certain events of bankruptcy or insolvency, whether voluntary or not; or

 

●

any other event of default described in the 2032 Notes Indenture.

 

If an event of default (other than the bankruptcy provision) regarding any series of 2032 notes issued under the 2032 Notes Indenture should occur and be continuing, either the trustee or the holders of 25% in the principal amount of outstanding 2032 notes may declare the 2032 notes due and payable. If a bankruptcy event occurs, the principal of and accrued and unpaid interest on the 2032 notes shall immediately become due and payable without any declaration or other act on the part of the trustee or the holders of the 2032 notes. The holders of a majority in principal amount of 2032 notes may rescind any other declaration or acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing events of default have been cured or waived (other than nonpayment of principal or interest that has become due solely as a result of acceleration). OFHP and Omnicom Group Inc. are required to file annually with the trustee a statement of an officer as to the fulfillment by OFHP and Omnicom Group Inc. of their respective obligations under the 2032 Notes Indenture during the preceding year.

 

Holders of a majority in principal amount of the outstanding 2032 notes will be entitled to control certain actions of the trustee under the 2032 Notes Indenture. Holders of a majority in principal amount of the outstanding 2032 notes also will be entitled to waive past defaults regarding the 2032 notes, except for a default in payment of principal, premium or interest or a default in a covenant or provision which may not be modified or amended without the consent of each holder of the 2032 notes. The trustee generally may not be ordered or directed by any of the holders of 2032 notes to take any action, unless one or more of the holders shall have offered to the trustee security or indemnity satisfactory to it.

 

If an event of default occurs and is continuing regarding the 2032 notes, the trustee may use any sums that it holds under the 2032 Notes Indenture for its own reasonable compensation and expenses incurred prior to paying the holders of 2032 notes.

 

Before any holder of the 2032 notes may institute action for any remedy, except payment on the holder’s 2032 notes when due, the holders of not less than 25% in principal amount of the 2032 notes outstanding must request the trustee to take action. Holders must also offer and give the trustee security and indemnity satisfactory to it against liabilities incurred by the trustee for taking such action.

 

Book-Entry; Delivery and Form

 

The information in this section concerning Euroclear and Clearstream, Luxembourg and their book-entry systems and procedures has been obtained from sources that we believe to be reliable, but none of OFHP or Omnicom Group Inc. takes any responsibility for the accuracy of this information. In addition, the description of the clearing systems in this section reflects OFHP’s understanding of the rules and procedures of Euroclear and Clearstream, Luxembourg as they are currently in effect. Those clearing systems could change their rules and procedures at any time.

 

The 2032 notes were initially represented by one or more fully registered global notes without interest coupons. Each such global note was deposited with, or on behalf of, a common depositary, and registered in the name of the nominee of the common depositary for the accounts of Euroclear and Clearstream, Luxembourg. Except as described herein, certificates will not be issued in exchange for beneficial interests in the global notes.

 

 

Except as set forth below, the global notes may be transferred, in whole and not in part, only to Euroclear or Clearstream, Luxembourg or their respective nominees. Holders may hold their interests in the global notes through Euroclear or Clearstream, Luxembourg, either as a participant in such systems or indirectly through organizations which are participants in such systems. Beneficial interests in the global notes are in denominations of €100,000 and integral multiples of €1,000 in excess thereof. Euroclear and Clearstream, Luxembourg will hold interests in the global notes on behalf of their respective participating organizations or customers through customers’ securities accounts in Euroclear or Clearstream, Luxembourg’s names on the books of their respective depositaries. Book-entry interests in the 2032 notes and all transfers relating to the 2032 notes will be reflected in the book-entry records of Euroclear and Clearstream, Luxembourg. The address of Euroclear is 1 Boulevard Roi Albert II, 1210 Brussels, Belgium, and the address of Clearstream, Luxembourg is 42 Avenue JF Kennedy, L-1855 Luxembourg, Luxembourg.

 

The distribution of the 2032 notes was cleared through Euroclear and Clearstream, Luxembourg. Any secondary market trading of book-entry interests in the notes will take place through Euroclear and Clearstream, Luxembourg participants and will settle in same-day funds. Owners of book-entry interests in the 2032 notes will receive payments relating to their notes in euro, except as otherwise set forth in the 2032 Notes Indenture.

 

Euroclear and Clearstream, Luxembourg have established electronic securities and payment transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow the 2032 notes to be issued, held and transferred among the clearing systems without the physical transfer of certificates. Special procedures to facilitate clearance and settlement have been established among these clearing systems to trade securities across borders in the secondary market.

 

The policies of Euroclear and Clearstream, Luxembourg govern payments, transfers, exchanges and other matters relating to the investor’s interest in the 2032 notes held by them. We have no responsibility for any aspect of the records kept by Euroclear or Clearstream, Luxembourg or any of their direct or indirect participants. We also do not supervise these systems in any way.

 

Euroclear and Clearstream, Luxembourg and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. Investors should be aware that they are not obligated to perform or continue to perform these procedures and may modify them or discontinue them at any time.

 

Certificated Notes

 

If the depositary for the 2032 notes represented by a registered global note is at any time unwilling, unable or no longer qualified to continue as depositary for the registered global note and a successor is not appointed by OFHP within 90 days, OFHP will issue 2032 notes in definitive form in exchange for the registered global note that had been held by the depositary. Any 2032 notes issued in definitive form in exchange for a registered global note will be registered in the name or names that the depositary gives to the trustee or other relevant agent of the trustee. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global note that had been held by the depositary.

 

 

DESCRIPTION OF STERLING NOTES

 

We have previously filed a registration statement on Form S-3 (File No. 333-261046), which was filed with the SEC on November 17, 2021 and covers the issuance of the Sterling notes.

 

The Sterling notes were issued under an Indenture, dated as of November 22, 2021, as supplemented by the First Supplemental Indenture, dated as of November 22, 2021 (the “Sterling Notes Indenture”), among OCHP, as issuer, Omnicom Group Inc., as guarantor, and Deutsche Bank Trust Company Americas, as trustee. We have summarized certain portions of the Sterling Notes Indenture herein. You should read the more detailed provisions of the Sterling Notes Indenture for provisions which may be important to you.

 

General

 

Sterling Notes

 

The Sterling notes were issued in an initial aggregate principal amount of £325 million. The notes were issued only in registered form, without coupons, in minimum denominations of £100,000 and integral multiples of £1,000 in excess thereof.

 

The specific terms of the Sterling notes are set forth below:

 

●

Title: 2.250% Senior Notes due 2033

 

●

Initial principal amount being issued: £325,000,000

 

●

Stated maturity date: November 22, 2033

 

●

Interest rate: 2.250%

 

●

Date interest starts accruing: November 22, 2021

 

●

Interest payment date: November 22 of each year

 

●

First interest payment date: November 22, 2022

 

●

Regular record date for interest: November 7 of each year

 

●

Computation of interest: Interest will be computed on the basis of the actual number of days elapsed in the period for which interest is being calculated and the actual number of days from and including the last day on which interest was paid on the Sterling notes (or November 22, 2021 if no interest has been paid on the Sterling notes), to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) (as defined in the rulebook of the International Capital Markets Association).

 

●

Form of Sterling notes: The Sterling notes were issued in book-entry form, represented by one or more global notes deposited with or on behalf of a common depositary on behalf Euroclear and Clearstream, Luxembourg, and registered in the name of the nominee of the common depositary for the accounts of Euroclear and Clearstream, Luxembourg.

 

●

Sinking fund: The Sterling notes are not subject to any sinking fund.

 

●

Trustee: Deutsche Bank Trust Company Americas

 

●

Paying Agent, Transfer Agent and Registrar: Deutsche Bank Trust Company Americas

 

Guarantee

 

Omnicom Group Inc. has fully and unconditionally guaranteed the due and punctual payment of all obligations of OCHP under the Sterling Notes Indenture and the Sterling notes, whether for the payment of principal of, premium, if any, or interest or any Additional Amounts (as defined below), on the Sterling notes or otherwise, when and as the same shall become due and payable, whether at maturity, upon redemption or otherwise. The guarantees will be unsecured and unsubordinated obligations of Omnicom Group Inc. and will rank equally with all of its other unsecured and unsubordinated obligations.

 

 

Payments in Sterling

 

Initial holders were required to pay for the Sterling notes in Sterling, and all payments of interest, principal and premium, if any, including payments made upon any redemption or repurchase of the Sterling notes, will be payable in Sterling. If, on or after November 17, 2021, the Sterling is unavailable to us due to the imposition of exchange controls or other circumstances beyond our control or if the Sterling is no longer being used by the United Kingdom as its currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Sterling notes will be made in U.S. dollars until the Sterling is again available to us or so used. In such circumstances, the amount payable on any date in Sterling will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent U.S. dollar/Sterling exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date (the “market exchange rate”). Any payment in respect of the Sterling notes so made in U.S. dollars will not constitute an event of default under the Sterling notes or the Sterling Notes Indenture. Neither the trustee nor the paying agent for the Sterling notes has any responsibility for any calculation or conversion in connection with the foregoing.

 

Holders of the Sterling notes are subject to foreign exchange risks as to payments of principal and interest that may have important economic and tax consequences to them.

 

Business Day

 

For purposes of the Sterling notes, “Business Day” means any day other than a Saturday or Sunday, which is not a day on which banking institutions in The City of New York or London are authorized or required by law, regulation or executive order to close.

 

Optional Redemption

 

Prior to August 22, 2033 (the date that is three months prior to the maturity date of the Sterling notes (the “par call date”)), the Sterling notes are redeemable, as a whole or in part, at OCHP’s option, at any time or from time to time, upon mailed notice (or electronic notice, as applicable) to the registered address of each holder of Sterling notes at least 15 days but not more than 60 days prior to the redemption. The redemption price will be equal to the greater of (1) 100% of the principal amount of the Sterling notes to be redeemed and (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) on such Sterling notes discounted to the date of redemption, on an annual basis (assuming an ACTUAL/ACTUAL (ICMA) day count fraction), at the applicable Comparable Government Bond Rate (as defined below) plus 20 basis points, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date, as calculated by an Independent Investment Banker.

 

On or after the par call date, the Sterling notes will be redeemable, as a whole or in part, at OCHP’s option, at any time or from time to time, upon mailed notice (or electronic notice, as applicable) to the registered address of each holder of such Sterling notes at least 15 days but not more than 60 days prior to the redemption at a redemption price of 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date.

 

“Comparable Government Bond” means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an Independent Investment Banker, a bond that is a direct obligation of the United Kingdom, whose maturity is closest to the maturity of the Sterling notes to be redeemed, or if such Independent Investment Banker in its discretion determines that such similar bond is not in issue, such other UK government bond as such Independent Investment Banker may, with the advice of three brokers of, and/or market makers in, UK government bonds selected by such Independent Investment Banker, determine to be appropriate for determining the Comparable Government Bond Rate.

 

“Comparable Government Bond Rate” means the yield to maturity, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), on the third business day prior to the date fixed for redemption, of the applicable comparable government bond on the basis of the middle market price of such comparable government bond prevailing at 11:00 a.m. (London time) on such business day as determined by an independent investment banker selected by us.

 

“Independent Investment Banker” means an investment bank of international standing appointed by us.

 

 

“Remaining Scheduled Payments” means, with respect to each Sterling note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related redemption date but for such redemption calculated as if the maturity date of such Sterling note was the par call date; provided, however, that, if such redemption date is not an interest payment date with respect to such Sterling note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to, but excluding, such redemption date.

 

On and after the redemption date, interest will cease to accrue on the Sterling notes or any portion of the Sterling notes called for redemption (unless we default in the payment of the redemption price and accrued interest). On or before any redemption date, we will deposit with the paying agent (or the trustee) money sufficient to pay the redemption price of and accrued interest on the Sterling notes to be redeemed on such date.

 

If less than all of the Sterling notes are to be redeemed, the Sterling notes to be redeemed shall be selected by such method as the trustee deems fair and appropriate, subject to the procedures of Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société anonyme, Luxembourg (“Clearstream, Luxembourg”) as to global notes.

 

Repurchase at the Option of Holders Upon Change of Control Triggering Event

 

Upon the occurrence of a Change of Control Triggering Event (as defined below), unless OCHP has exercised its option to redeem the Sterling notes as described under “-Optional Redemption,” each holder of Sterling notes will have the right to require OCHP to repurchase all or a portion of such holder’s Sterling notes pursuant to a change of control offer described below (a “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of repurchase (the “Change of Control Payment”), subject to the right of holders of Sterling notes on the relevant record date to receive interest due on the relevant interest payment date.

 

Within 30 days following the date upon which OCHP becomes aware that a Change of Control Triggering Event has occurred, or at OCHP’s option, prior to any Change of Control but after the public announcement of the pending Change of Control, OCHP will be required to send, by first class mail or electronic delivery, a notice to each holder of Sterling notes, with a copy to the trustee, which notice will govern the terms of the Change of Control Offer. Such notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is mailed or delivered, other than as may be required by law (the “Change of Control Payment Date”). The notice, if mailed or delivered prior to the date of consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

 

OCHP will not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by OCHP and such third party purchases all Sterling notes properly tendered and not withdrawn under its offer.

 

To the extent that OCHP is required to offer to repurchase the Sterling notes upon the occurrence of a Change of Control Triggering Event, it may not have sufficient funds to purchase the Sterling notes in cash at such time. In addition, OCHP’s ability to purchase the Sterling notes for cash may be limited by law or the terms of other agreements relating to its indebtedness outstanding at the time. The failure to make such purchase would result in a default under the Sterling notes.

 

OCHP will be required to comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Sterling notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Offer provisions of the Sterling Notes Indenture and the Sterling notes, OCHP will be required to comply with those securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions of the Sterling Notes Indenture and the Sterling notes by virtue of any such compliance.

 

On each Change of Control Payment Date, the Sterling Notes Indenture provides that OCHP will, to the extent lawful:

 

●

accept for payment all Sterling notes or portions of Sterling notes properly tendered and not withdrawn pursuant to the Change of Control Offer;

 

 

●

deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Sterling notes or portions of Sterling notes properly tendered and not withdrawn; and

 

●

deliver or cause to be delivered to the trustee the Sterling notes properly accepted together with an officer’s certificate stating the aggregate principal amount of Sterling notes or portions of Sterling notes being repurchased.

 

“Below Investment Grade Rating Event” occurs if both the rating on the Sterling notes is lowered by each of the Rating Agencies and such Sterling notes are rated below Investment Grade by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating of the Sterling notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Triggering Event hereunder) if any of the Rating Agencies making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).

 

“Change of Control” means the occurrence of any of the following:

 

(1)

the sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of Omnicom Group Inc. and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to Omnicom Group Inc. or one of its subsidiaries;

 

(2)

the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than Omnicom Group Inc. or one of its wholly owned subsidiaries, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the then outstanding shares of Omnicom Group Inc.’s Voting Stock, measured by voting power rather than number of shares; or

 

(3)

the adoption of a plan relating to the liquidation or dissolution of Omnicom Group Inc.

 

Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i) Omnicom Group Inc. becomes a wholly owned subsidiary of a holding company and (ii) the holders of the Voting Stock of such holding company immediately following such transaction are substantially the same as the holders of Omnicom Group Inc.’s Voting Stock immediately prior to such transaction.

 

The definition of Change of Control includes a phrase relating to the sale, transfer, conveyance or other disposition of “all or substantially all” of the assets of Omnicom Group Inc. and its subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of Sterling notes to require OCHP to repurchase such Sterling notes as a result of a sale, transfer, conveyance or other disposition of less than all of the assets of Omnicom Group Inc. and its subsidiaries taken as a whole to another Person or group may be uncertain.

 

“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

 

“Investment Grade” means a rating equal to or higher than Baa3 (or its equivalent under any successor rating categories) by Moody’s and BBB- (or its equivalent under any successor rating categories) by S&P, or, in each case, if such Rating Agency ceases to rate the Sterling notes or fails to make a rating of such Sterling notes publicly available for reasons outside of OCHP’s and Omnicom Group Inc.’s control, the equivalent investment grade credit rating by the replacement agency selected by OCHP in accordance with the procedures described below.

 

 

“Moody’s” means Moody’s Investors Service, Inc., and its successors.

 

“Rating Agencies” means (1) each of Moody’s and S&P; and (2) if any of Moody’s or S&P ceases to rate the Sterling notes or fails to make a rating of the Sterling notes publicly available for reasons outside of OCHP’s and Omnicom Group Inc.’s control, a “nationally recognized statistical rating organization,” as defined in Section 3(a)(62) of the Exchange Act, selected by OCHP as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

 

“S&P” means S&P Global Ratings, and its successors.

 

“Voting Stock” means, with respect to any person, capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such person, even if the right so to vote has been suspended by the happening of such a contingency.

 

Payment of Additional Amounts

 

Unless otherwise required by law, none of OCHP or Omnicom Group Inc. will deduct or withhold from payments made by OCHP or Omnicom Group Inc. under or with respect to the Sterling notes and the guarantee on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”). In the event that OCHP or Omnicom Group Inc. is required to withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Sterling notes or the related guarantee, as the case may be, OCHP or Omnicom Group Inc., as the case may be, will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each holder of Sterling notes (including Additional Amounts) after such withholding or deduction will equal the amount that such holder would have received if such Taxes had not been required to be withheld or deducted.

 

Additional Amounts will not be payable with respect to a payment made to a holder of Sterling notes or a holder of beneficial interests in global securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for or on account of:

 

●

any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such Sterling notes) or a fiduciary, settlor, beneficiary, member, shareholder or other equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability company, corporation or other entity:

 

●

is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such Sterling notes, without another presence or business in such Taxing Jurisdiction);

 

●

has or had any present or former connection (other than the mere fact of ownership of such Sterling notes) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof, being treated as being or having been a resident thereof or being or having been physically present therein;

 

●

(in relation to payments by Omnicom Group Inc. only) is or was a personal holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax; or

 

 

●

(in relation to payments by Omnicom Group Inc. only) is or was a “10-percent shareholder” of Omnicom Group Inc. within the meaning of Section 871(h)(3) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or any successor provisions;

 

●

Taxes imposed on any holder that is not the sole beneficial owner of the Sterling notes, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner, or member received directly its beneficial or distributive share of the payment;

 

●

any estate, inheritance, gift, sales, transfer, excise, personal property or similar Taxes imposed with respect to the Sterling notes, except as otherwise provided in the Sterling Notes Indenture;

 

●

any Taxes imposed solely as a result of the presentation of such Sterling notes (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the Sterling notes been presented for payment on any date during such 30-day period;

 

●

any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, or identity of such holder or connection with any Taxing Jurisdiction by such holder, if such compliance is required by statute, regulation, ruling or administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;

 

●

any Taxes that are payable by any method other than withholding or deduction by OCHP or Omnicom Group Inc. or any paying agent from payments in respect of such Sterling notes;

 

●

any Taxes required to be withheld by any paying agent from any payment in respect of the Sterling notes if such payment can be made without such withholding by at least one other paying agent in the United States or the United Kingdom;

 

●

any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, any intergovernmental agreement, or any law, rule, guidance or administrative practice implementing an intergovernmental agreement entered into in connection with such sections of the Code; or

 

●

any combination of the above conditions.

 

Each of OCHP and Omnicom Group Inc., as applicable, also:

 

●

will make such withholding or deduction of Taxes;

 

●

will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws;

 

●

will use its commercially reasonable efforts to obtain from each Taxing Jurisdiction imposing such Taxes certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld; and

 

●

upon request, will make available to the holders of the Sterling notes, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by OCHP or Omnicom Group Inc. or if, notwithstanding OCHP’s or Omnicom Group Inc.’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments.

 

 

At least 30 days prior to each date on which any payment under or with respect to the Sterling notes or related guarantee is due and payable, if OCHP or Omnicom Group Inc. will be obligated to pay Additional Amounts with respect to such payment, OCHP or Omnicom Group Inc. will deliver to the trustee an officer’s certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and such other information as is necessary to enable the trustee to pay such Additional Amounts to holders of such Sterling notes on the payment date.

 

In addition, OCHP will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in the United Kingdom or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the Sterling notes.

 

The foregoing provisions shall survive any termination or the discharge of the Sterling Notes Indenture and shall apply to any jurisdiction in which OCHP or Omnicom Group Inc. or any successor to OCHP or Omnicom Group Inc., as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein.

 

Whenever in the Sterling Notes Indenture, any Sterling notes or the related guarantee there is mentioned, in any context, the payment of principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any Sterling notes, such mention includes the payment of Additional Amounts to the extent payable in the particular context.

 

Redemption Upon Changes in Withholding Taxes

 

OCHP may redeem all, but not less than all, of the Sterling notes at a redemption price equal to 100% of the principal amount thereof, together with accrued interest, if any, to the redemption date and Additional Amounts, if any, under the following conditions:

 

●

if there is an amendment to, or change in, the laws, regulations, rulings or treaties of the United Kingdom, the United States or other jurisdiction in which OCHP or Omnicom Group Inc. or, in each case, any successor thereof (including a successor person formed by a consolidation with OCHP or Omnicom Group Inc., into which OCHP or Omnicom Group Inc. is merged, or that acquires or leases all or substantially all of the property and assets of OCHP or Omnicom Group Inc.) may be incorporated, organized, or otherwise resident for tax purposes, or engaged in business for tax purposes, as applicable, or any political subdivision thereof or therein having the power to tax, or any jurisdiction from or through which payment is made by or on behalf of OCHP or Omnicom Group Inc. (a “Taxing Jurisdiction”), or any change in the application or official interpretation of such laws, regulations, rulings or treaties, including any action taken by, or a change in published administrative practice of, a taxing authority or a holding by a court of competent jurisdiction, regardless of whether such action, change or holding is with respect to OCHP or Omnicom Group Inc.;

 

●

as a result of such amendment or change, OCHP or Omnicom Group Inc. becomes, or there is a substantial probability that OCHP or Omnicom Group Inc. will become, obligated to pay Additional Amounts on the next payment date with respect to the Sterling notes (but, in the case of Omnicom Group Inc., only if the payment giving rise to such requirement cannot be made by OCHP or Omnicom Group Inc. who can make such payment without the obligation to pay Additional Amounts);

 

●

the obligation to pay Additional Amounts cannot be avoided through OCHP’s or Omnicom Group Inc.’s commercially reasonable measures, including, for the avoidance of doubt, the appointment of a new paying agent, but not including substitution of the obligor of the Sterling notes;

 

●

OCHP or Omnicom Group Inc., as the case may be:

 

●

delivers to the trustee a certificate of OCHP or Omnicom Group Inc., as the case may be, stating that the obligation to pay Additional Amounts cannot be avoided by OCHP or Omnicom Group Inc., as the case may be, taking commercially reasonable measures available to it; and

 

 

●

based upon a written opinion of independent tax counsel to OCHP or Omnicom Group Inc., as the case may be, of recognized standing to the effect that OCHP or Omnicom Group Inc., as the case may be, has, or there is a substantial probability that it will become, obligated to pay Additional Amounts as a result of a change, amendment, official interpretation or application described above; and

 

●

following the delivery of the certificate and opinion described in the previous bullet point, OCHP provides notice of redemption not less than 30 days, but not more than 60 days, prior to the date of redemption. The notice of redemption cannot be given more than 60 days before the earliest date on which OCHP or Omnicom Group Inc. would otherwise be, or there is a substantial probability that it would otherwise be, required to pay Additional Amounts.

 

Upon the occurrence of each of the bullet points above, OCHP may redeem the Sterling notes at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the redemption date.

 

Certain Covenants

 

Limitation on Liens

 

Omnicom Group Inc. will not, and will not permit any of its Subsidiaries to, create or suffer to exist any Lien on or with respect to any of Omnicom Group Inc.’ properties, whether now owned or hereafter acquired, to secure any Debt of Omnicom Group Inc., any direct or indirect Subsidiary or any other Person without securing the Sterling notes equally and ratably with such Debt to which such Liens relate for so long as such Debt shall be so secured, other than:

 

●

Permitted Liens;

 

●

purchase money Liens upon or in any real property or equipment acquired or held by Omnicom Group Inc. or any Subsidiary in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition of such property or equipment, or Liens existing on such property or equipment at the time of its acquisition (other than any such Liens created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover any properties of any character other than the real property or equipment being acquired and fixed improvements thereon or accessions thereto, and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or replaced;

 

●

Liens existing on November 17, 2021;

 

●

Liens on property of a Person existing at the time such Person is merged into, consolidated with, or acquired by Omnicom Group Inc. or any Subsidiary of Omnicom Group Inc. or becomes a Subsidiary of Omnicom Group Inc.; provided that such Liens were not created in contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person so merged into or consolidated with Omnicom Group Inc. or such Subsidiary or acquired by Omnicom Group Inc. or such Subsidiary;

 

●

Liens granted by Subsidiaries of Omnicom Group Inc. (other than OCHP) to secure Debt owed to Omnicom Group Inc. or a wholly owned Subsidiary of Omnicom Group Inc.;

 

●

Liens arising out of a judgment, decree or order of court being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of Omnicom Group Inc. or the books of its Subsidiaries, as the case may be, in conformity with U.S. GAAP;

 

●

Debt of a Person existing at the time such Person is merged into or consolidated with Omnicom Group Inc. or becomes a Subsidiary of Omnicom Group Inc. provided that such Debt was not created in contemplation of such merger, consolidation or acquisition and provided further that the aggregate principal amount of such Debt shall not exceed $50,000,000 at any time outstanding;

 

 

●

Liens to secure any extension, renewal, refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Debt secured by Liens referred to above or Liens created in connection with any amendment, consent or waiver relating to such Debt, so long as such Lien does not extend to any other property, the amount of Debt secured is not increased (other than by the amount equal to any costs and expenses incurred in connection with any extension, renewal, refinancing or refunding) and the Debt so secured does not exceed the fair market value (as determined by the board of directors of Omnicom Group Inc. in good faith) of the assets subject to such Liens at the time of such extension, renewal, refinancing or refunding, or such amendment, consent or waiver, as the case may be;

 

●

any assignment of accounts receivable (a) by and among Omnicom Group Inc. and its Subsidiaries or (b) pursuant to non-recourse factoring or similar arrangements or otherwise in an aggregate amount not to exceed in any fiscal year the greater of $500,000,000 (measured as the face value of such accounts receivable at the time of assignment) and 10.0% of the consolidated accounts receivable of Omnicom Group Inc. and its Subsidiaries as reflected in the consolidated balance sheet of Omnicom Group Inc. as of the end of the fiscal year of Omnicom Group Inc. most recently ended prior to such assignment for which financial statements are available; and

 

●

Liens otherwise prohibited by this covenant, securing Debt or other obligations in an aggregate amount at any time outstanding plus (b) the aggregate face value at the time of assignment of such accounts receivable assigned, the assignment of which is not otherwise permitted by the foregoing exceptions, in an aggregate amount not to exceed 20% of Consolidated Net Worth of Omnicom Group Inc. and its Subsidiaries as set forth in Omnicom Group Inc.’s most recently available financial statements.

 

Certain Definitions

 

Set forth below are certain defined terms used herein:

 

“Consolidated Net Worth” means the consolidated net worth of Omnicom Group Inc., as determined in accordance with generally accepted accounting principles in the United States of America or U.S. GAAP.

 

“Debt” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than earn-out payment obligations of such Person in connection with the purchase of property or services to the extent they are still contingent), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under leases to the extent that such leases have been or should be, in accordance with U.S. GAAP, recorded as finance leases, (f) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all obligations of such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g) above or clause (i) below and other payment obligations guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to in clauses (a) through (h) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt.

 

“Hedge Agreements” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other similar agreements.

 

 

“Lien” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement intended to provide security for the payment or performance of an obligation, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.

 

“Permitted Liens” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent not yet due and payable, or being contested in good faith by appropriate proceedings; (b) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings that prevent the forfeiture or sale of the asset subject to such Lien; (c) pledges or deposits to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations or, in any such case, to secure reimbursement obligations under letters of credit or bonds issued to support such obligations; and (d) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes.

 

“Person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding voting stock of such Person, (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other subsidiaries or by one or more of such Person’s other subsidiaries.

 

Consolidation, Merger or Sale

 

OCHP and Omnicom Group Inc. may not consolidate with or merge into, or convey, transfer or lease their respective properties and assets as an entirety or substantially as an entirety to, any person, referred to as a “successor person,” except in the case of OCHP with, into or to Omnicom Group Inc. or any other subsidiary of Omnicom Group Inc. (provided that the successor person (if any) expressly assumes by a supplemental indenture OCHP’s obligations on the Sterling notes and under the Sterling Notes Indenture), unless:

 

●

either (a) OCHP or Omnicom Group Inc., as applicable, is the successor person or (b) the successor person is an entity organized under the laws of (i) in the case of OCHP, the United Kingdom, any member country of the European Union or the United States or (ii) in the case of Omnicom Group Inc., the United States;

 

●

the successor person expressly assumes (a) in the case of OCHP, OCHP’s obligations with respect to the Sterling notes and the Sterling Notes Indenture or (b) in the case of Omnicom Group Inc., Omnicom Group Inc.’s obligations with respect to its guarantee of Sterling notes and the Sterling Notes Indenture;

 

●

immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing; and

 

●

OCHP or Omnicom Group Inc., as applicable, or the successor person has delivered to the trustee the certificates and opinions required under the Sterling Notes Indenture.

 

Listing

 

The Sterling notes are listed on the New York Stock Exchange under the symbol “OMC/33”.

 

 

Defeasance

 

The Sterling Notes Indenture will provide that OCHP may specify with respect to the Sterling notes that after OCHP or Omnicom Group Inc. has deposited with the trustee, cash or government securities, in trust for the benefit of the holders sufficient to pay the principal of, premium, if any, and interest on and any mandatory sinking fund payments in respect of the Sterling notes when due, then OCHP and Omnicom Group Inc.:

 

●

will be deemed to have paid and satisfied their obligations on all outstanding Sterling notes, which is known as “defeasance and discharge”; or

 

●

will cease to be under any obligation, other than to pay when due the principal of, premium, if any, and interest on and any mandatory sinking fund payments in respect of such debt securities, relating to the Sterling notes, which is known as “covenant defeasance.”

 

In each case, OCHP or Omnicom Group Inc. must also deliver to the trustee an opinion of counsel to the effect that the holders of the Sterling notes will have no United States federal income tax consequences as a result of such deposit.

 

In addition, the Sterling Notes Indenture will provide that if Omnicom Group Inc. chooses to have the defeasance and discharge provision applied to the Sterling notes, the subordination provisions of the Sterling Notes Indenture will become ineffective upon full defeasance of the Sterling notes.

 

When there is a defeasance and discharge, with limited exceptions, (1) the Sterling Notes Indenture will no longer govern the Sterling notes, (2) neither OCHP nor Omnicom Group Inc. will be liable for payment, and (3) the holders of the Sterling notes will be entitled only to the deposited funds. When there is a covenant defeasance, however, OCHP will continue to be obligated to make payments when due if the deposited funds are not sufficient.

 

Modification of the Sterling Notes Indenture

 

Under the Sterling Notes Indenture, OCHP, Omnicom Group Inc., and the trustee may enter into supplemental indentures without obtaining the consent of any holder of Sterling notes:

 

●

to cure any ambiguity, defect or inconsistency;

 

●

to comply with the Sterling Notes Indenture’s provisions regarding successor corporations;

 

●

to comply with any requirements of the SEC in connection with the qualification of the Sterling Notes Indenture under the Trust Indenture Act of 1939, as amended;

 

●

to provide for global notes in addition to or in place of certificated notes;

 

●

to add to, change or eliminate any of the provisions of the Sterling Notes Indenture with respect to the Sterling notes; although no such addition, change or elimination may apply to the Sterling notes created prior to the execution of such amendment and entitled to the benefit of such provision, nor may any such amendment modify the rights of a holder of any such Sterling notes with respect to such provision, unless the amendment becomes effective only when there is no outstanding Sterling notes created prior to such amendment and entitled to the benefit of such provision;

 

●

to secure the Sterling notes or any guarantee thereof;

 

●

to add an additional guarantor of any series of Sterling notes;

 

●

to add to OCHP’s or Omnicom Group Inc.’s covenants or obligations under the Sterling Notes Indenture for the protection of the holders of the Sterling notes or surrender any right, power or option conferred by the Sterling Notes Indenture on OCHP or Omnicom Group Inc.;

 

●

to make any change that does not materially adversely affect in any material respect the legal rights of any holder; or

 

●

to establish additional series of Sterling notes as permitted by the Sterling Notes Indenture.

 

 

OCHP, Omnicom Group Inc. and the trustee may, with the consent of the holders of at least a majority in aggregate principal amount of the Sterling notes, modify the Sterling Notes Indenture or the rights of the holders of the Sterling notes. No modifications may, without the consent of the holder of the Sterling notes, be made that, as to any non-consenting holders:

 

●

reduce the percentage of Sterling notes whose holders need to consent to the modification;

 

●

reduce the rate or change the time of payment of interest on the Sterling notes;

 

●

reduce the principal amount of or the premium, if any, on the Sterling notes;

 

●

change the fixed maturity of any of the Sterling notes;

 

●

reduce the amount of, or postpone the date fixed for, the payment of any sinking fund;

 

●

reduce the principal amount payable upon acceleration of the maturity of any Sterling notes issued originally at a discount;

 

●

waive a default in the payment of the principal amount of, the premium, if any, or any interest on the Sterling notes;

 

●

change the currency in which any of the Sterling notes are payable;

 

●

impair the right to sue for the enforcement of any payment on or after the maturity of the Sterling notes;

 

●

release Omnicom Group Inc. from its obligations in respect of the guarantee of the Sterling notes or modify Omnicom Group Inc.’s obligations thereunder other than in accordance with the provisions of the Sterling Notes Indenture; or

 

●

waive a redemption payment with respect to the Sterling notes.

 

Events of Default

 

The Sterling Notes Indenture provides that events of default regarding the Sterling notes are:

 

●

failure to pay required interest on the Sterling notes for 30 days;

 

●

failure to pay principal, other than a scheduled installment payment, or premium, if any, on the Sterling notes when due;

 

●

failure to make any required deposit of any sinking fund payment when due;

 

●

failure to perform for 60 days after notice any other covenant in the Sterling Notes Indenture (other than a covenant included in the Sterling Notes Indenture solely for the benefit of a series of notes other than the Sterling notes);

 

●

(A) OCHP’s or Omnicom Group Inc.’s failure to make any payment by the end of any applicable grace period after maturity of their respective indebtedness, which term as used in this clause means obligations (other than nonrecourse obligations) of OCHP or Omnicom Group Inc., as applicable, for borrowed money or evidenced by bonds, debentures, notes or similar instruments in an amount (taken together with amounts in (B)) in excess of $100 million and continuance of such failure, or (B) the acceleration of their respective indebtedness in an amount (taken together with the amounts in (A)) in excess of $100 million because of a default with respect to such indebtedness without such indebtedness having been discharged or such acceleration having been cured, waived, rescinded or annulled in case of (A) or (B) above, for a period of 30 days after written notice to OCHP and Omnicom Group Inc. by the trustee or to OCHP, Omnicom Group Inc., and the trustee by the holders of not less than 25% in aggregate principal amount of the outstanding Sterling notes; however, if any such failure or acceleration referred to in (A) or (B) above shall cease or be cured or be waived, rescinded or annulled in accordance with the terms of the Sterling notes, then the event of default by reason thereof shall be deemed not to have occurred;

 

 

●

Omnicom Group Inc.’s guarantee applicable to the Sterling notes ceases to be in full force and effect or is declared null and void or Omnicom Group Inc. denies that it has any further liability under its guarantee of the Sterling notes to the holders of such Sterling notes, or has given notice to such effect (other than by reason of the release of such guarantee in accordance with the Sterling Notes Indenture), and such condition shall have continued for a period of 30 days after written notice has been given to OCHP and Omnicom Group Inc. by the trustee or to OCHP, Omnicom Group Inc. and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding Sterling notes;

 

●

certain events of bankruptcy or insolvency, whether voluntary or not; or

 

●

any other event of default described in the Sterling Notes Indenture.

 

If an event of default (other than the bankruptcy provision) regarding any series of Sterling notes issued under the Sterling Notes Indenture should occur and be continuing, either the trustee or the holders of 25% in the principal amount of outstanding Sterling notes may declare the Sterling notes due and payable. If a bankruptcy event occurs, the principal of and accrued and unpaid interest on the Sterling notes shall immediately become due and payable without any declaration or other act on the part of the trustee or the holders of the Sterling notes. The holders of a majority in principal amount of Sterling notes may rescind any other declaration or acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing events of default have been cured or waived (other than nonpayment of principal or interest that has become due solely as a result of acceleration). OCHP and Omnicom Group Inc. are required to file annually with the trustee a statement of an officer as to the fulfillment by OCHP and Omnicom Group Inc. of their respective obligations under the Sterling Notes Indenture during the preceding year.

 

Holders of a majority in principal amount of the outstanding Sterling notes will be entitled to control certain actions of the trustee under the Sterling Notes Indenture. Holders of a majority in principal amount of the outstanding Sterling notes also will be entitled to waive past defaults regarding the Sterling notes, except for a default in payment of principal, premium or interest or a default in a covenant or provision which may not be modified or amended without the consent of each holder of the Sterling notes. The trustee generally may not be ordered or directed by any of the holders of Sterling notes to take any action, unless one or more of the holders shall have offered to the trustee security or indemnity satisfactory to it.

 

If an event of default occurs and is continuing regarding the Sterling notes, the trustee may use any sums that it holds under the Sterling Notes Indenture for its own reasonable compensation and expenses incurred prior to paying the holders of Sterling notes.

 

Before any holder of the Sterling notes may institute action for any remedy, except payment on the holder’s Sterling notes when due, the holders of not less than 25% in principal amount of the Sterling notes outstanding must request the trustee to take action. Holders must also offer and give the trustee security and indemnity satisfactory to it against liabilities incurred by the trustee for taking such action.

 

Book-Entry; Delivery and Form

 

The information in this section concerning Euroclear and Clearstream, Luxembourg and their book-entry systems and procedures has been obtained from sources that we believe to be reliable, but none of OCHP or Omnicom Group Inc. takes any responsibility for the accuracy of this information. In addition, the description of the clearing systems in this section reflects OCHP’s understanding of the rules and procedures of Euroclear and Clearstream, Luxembourg as they are currently in effect. Those clearing systems could change their rules and procedures at any time.

 

The Sterling notes were initially represented by one or more fully registered global notes without interest coupons. Each such global note was deposited with, or on behalf of, a common depositary, and registered in the name of the nominee of the common depositary for the accounts of Euroclear and Clearstream, Luxembourg. Except as described herein, certificates will not be issued in exchange for beneficial interests in the global notes.

 

 

Except as set forth below, the global notes may be transferred, in whole and not in part, only to Euroclear or Clearstream, Luxembourg or their respective nominees. Holders may hold their interests in the global notes through Euroclear or Clearstream, Luxembourg, either as a participant in such systems or indirectly through organizations which are participants in such systems. Beneficial interests in the global notes are in denominations of £100,000 and integral multiples of £1,000 in excess thereof. Euroclear and Clearstream, Luxembourg will hold interests in the global notes on behalf of their respective participating organizations or customers through customers’ securities accounts in Euroclear or Clearstream, Luxembourg’s names on the books of their respective depositaries. Book-entry interests in the Sterling notes and all transfers relating to the Sterling notes will be reflected in the book-entry records of Euroclear and Clearstream, Luxembourg. The address of Euroclear is 1 Boulevard Roi Albert II, 1210 Brussels, Belgium, and the address of Clearstream, Luxembourg is 42 Avenue JF Kennedy, L-1855 Luxembourg, Luxembourg.

 

The distribution of the Sterling notes was cleared through Euroclear and Clearstream, Luxembourg. Any secondary market trading of book-entry interests in the notes will take place through Euroclear and Clearstream, Luxembourg participants and will settle in same-day funds. Owners of book-entry interests in the Sterling notes will receive payments relating to their notes in Sterling, except as otherwise set forth in the Sterling Notes Indenture.

 

Euroclear and Clearstream, Luxembourg have established electronic securities and payment transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow the Sterling notes to be issued, held and transferred among the clearing systems without the physical transfer of certificates. Special procedures to facilitate clearance and settlement have been established among these clearing systems to trade securities across borders in the secondary market.

 

The policies of Euroclear and Clearstream, Luxembourg govern payments, transfers, exchanges and other matters relating to the investor’s interest in the Sterling notes held by them. We have no responsibility for any aspect of the records kept by Euroclear or Clearstream, Luxembourg or any of their direct or indirect participants. We also do not supervise these systems in any way.

 

Euroclear and Clearstream, Luxembourg and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. Investors should be aware that they are not obligated to perform or continue to perform these procedures and may modify them or discontinue them at any time.

 

Certificated Notes

 

If the depositary for the Sterling notes represented by a registered global note is at any time unwilling, unable or no longer qualified to continue as depositary for the registered global note and a successor is not appointed by OCHP within 90 days, OCHP will issue Sterling notes in definitive form in exchange for the registered global note that had been held by the depositary. Any Sterling notes issued in definitive form in exchange for a registered global note will be registered in the name or names that the depositary gives to the trustee or other relevant agent of the trustee. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global note that had been held by the depositary.

 

 

45

 

Exhibit 5.1

 

 

 

250 Vesey Street ● New York, New York 10281.1047 

Telephone: +1.212.326.3939 ● jonesday.com

 

October 21, 2024

Omnicom Group Inc
280 Park Avenue
New York, New York 10017

 

Omnicom Finance Holdings plc
Bankside 3, 90-100 Southwark Street
London, SE 0SW, United Kingdom

 

Omnicom Capital Holdings plc
Bankside 3, 90-100 Southwark Street
London, SE 0SW, United Kingdom

 

Re:

Registration Statement on Form S-3 Filed by Omnicom Group Inc., Omnicom Finance Holdings plc and Omnicom Capital Holdings plc

 

Ladies and Gentlemen :

 

We have acted as counsel for Omnicom Group Inc., a New York corporation (“OGI”), Omnicom Finance Holdings plc, a public limited company organized under the laws of England and Wales (“OFHP”), and Omnicom Capital Holdings plc, a public limited company organized under the laws of England and Wales (“OCHP”), in connection with the authorization of the issuance and sale from time to time, on a delayed basis, (i) by OGI of debt securities of OGI (the “U.S. Debt Securities”), in one or more series, certain of which may be convertible into or exchangeable for Common Stock (as defined below), (ii) by OFHP of debt securities of OFHP (the “OFHP International Debt Securities”), in one or more series, certain of which may be convertible into or exchangeable for Common Stock, (iii) by OCHP of debt securities of OCHP (the “OCHP International Debt Securities”), in one or more series, certain of which may be convertible into or exchangeable for Common Stock, (iv) by OGI of OGI’s guarantee of OFHP’s or OCHP’s, as applicable, obligations in respect of any OFHP International Debt Securities issued by OFHP or any OCHP International Debt Securities issued by OCHP (the “Guarantee”) and (v) by OGI of: (A) shares of common stock, par value $.15 per share, of OGI (the “Common Stock”); (B) shares of preferred stock, par value $1.00 per share, of OGI (the “Preferred Stock”), in one or more series, certain of which may be convertible into or exchangeable for Common Stock; (C) warrants to purchase Common Stock or Preferred Stock (the “Warrants”); and (D) subscription rights to purchase Common Stock, Preferred Stock or Warrants (“Subscription Rights”), in each case, as contemplated by the Registration Statement on Form S-3 to which this opinion has been filed as an exhibit (the “Registration Statement”). The U.S. Debt Securities, the OFHP International Debt Securities, the OCHP International Debt Securities, the Common Stock, the Preferred Stock, the Guarantee, the Warrants and the Subscription Rights are collectively referred to herein as the “Securities.” The Securities may be offered and sold from time to time pursuant to Rule 415 under the Securities Act of 1933 (the “Securities Act”).

 

 

 

AMSTERDAM ● ATLANTA ● BEIJING ● BOSTON ● BRISBANE ● BRUSSELS ● CHICAGO ● CLEVELAND ● COLUMBUS ● DALLAS
DETROIT ● DUBAI ● DÜSSELDORF ● FRANKFURT ● HONG KONG ● HOUSTON ● IRVINE ● LONDON ● LOS ANGELES ● MADRID
MELBOURNE ● MEXICO CITY ● MIAMI ● MILAN ● MINNEAPOLIS ● MUNICH ● NEW YORK ● PARIS ● PERTH ● PITTSBURGH
SAN DIEGO ● SAN FRANCISCO ● SÃO PAULO ● SHANGHAI ● SILICON VALLEY ● SINGAPORE ● SYDNEY ● TAIPEI ● TOKYO ● WASHINGTON
 

 

 

Omnicom Group Inc.
Omnicom Finance Holdings plc
Omnicom Capital Holding plc
October 21, 2024

Page 2

 

In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of this opinion. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that:

 

(1)

The U.S. Debt Securities, upon receipt by OGI of such lawful consideration therefor as OGI’s Board of Directors (or an authorized committee thereof) may determine, will constitute valid and binding obligations of OGI, enforceable against OGI in accordance with their terms.

 

(2)

The OFHP International Debt Securities, upon receipt by OFHP of such lawful consideration therefor as OFHP’s Board of Directors (or an authorized committee thereof) may determine, will constitute valid and binding obligations of OFHP, enforceable against OFHP in accordance with their terms.

 

(3)

The OCHP International Debt Securities, upon receipt by OCHP of such lawful consideration therefor as OCHP’s Board of Directors (or an authorized committee thereof) may determine, will constitute valid and binding obligations of OCHP, enforceable against OCHP, in accordance with their terms.

 

(4)

The shares of Common Stock, upon receipt by OGI of such lawful consideration therefor having a value not less than the par value therefor as OGI’s Board of Directors (or an authorized committee thereof) may determine, will be validly issued, fully paid and nonassessable.

 

(5)

The shares of Preferred Stock, upon receipt by OGI of such lawful consideration therefor having a value not less than the par value therefor as OGI’s Board of Directors (or an authorized committee thereof) may determine, will be validly issued, fully paid and nonassessable.

 

 

 

Omnicom Group Inc.
Omnicom Finance Holdings plc
Omnicom Capital Holding plc
October 21, 2024

Page 3

 

(6)

The Guarantee, upon receipt by OGI of such lawful consideration as OGI’s Board of Directors (or an authorized committee thereof) may determine, will constitute valid and binding obligations of OGI, enforceable against OGI in accordance with its terms.

 

(7)

The Warrants, upon receipt by OGI of such lawful consideration therefor as OGI’s Board of Directors (or an authorized committee thereof) may determine, will constitute valid and binding obligations of OGI.

 

(8)

The Subscription Rights, upon receipt by OGI of such lawful consideration therefor as OGI’s Board of Directors (or an authorized committee thereof) may determine, will constitute valid and binding obligations of OGI.

 

In rendering the foregoing opinions, we have assumed that: (i) the Registration Statement, and any amendments thereto, will have become effective (and will remain effective at the time of issuance of any Securities thereunder); (ii) a prospectus supplement describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law and relevant rules and regulations of the Securities and Exchange Commission (the “Commission”), will be timely filed with the Commission; (iii) the definitive terms of each class or series of Securities will have been established in accordance with the authorizing resolutions adopted by each of OGI’s, OFHP’s, and OCHP’s Board of Directors, as applicable (or an authorized committee thereof), OGI’s restated certificate of incorporation (the “Restated Certificate of Incorporation”) and applicable law; (iv) OFHP, OCHP and OGI, as applicable, will issue and deliver the Securities in the manner contemplated by the Registration Statement and any Securities issuable upon conversion, exchange or exercise of any other Security, will have been authorized and reserved for issuance, in each case within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities; (v) the resolutions authorizing OGI, OFHP and OCHP to issue, offer and sell the Securities will have been adopted by OGI’s, OFHP’s and OCHP’s Board of Directors, as applicable (or an authorized committee thereof), and will be in full force and effect at all times at which the Securities are offered or sold by OFHP, OCHP and OGI, as applicable; (vi) all Securities will be issued in compliance with applicable federal and state securities laws; and (vii) any U.S. Debt Indenture, International Debt Indenture, Warrant Agreement or Subscription Rights Agreement (each as defined below) will be governed by and construed in accordance with the laws of the State of New York.

 

 

 

Omnicom Group Inc.
Omnicom Finance Holdings plc
Omnicom Capital Holding plc
October 21, 2024

Page 4

 

With respect to any Securities consisting of any series of U.S. Debt Securities, we have further assumed that: (i) such U.S. Debt Securities will have been issued pursuant to an indenture (the “U.S. Debt Indenture”), in a form approved by us, that has been authorized, executed and delivered by OGI and one or more entities selected by OGI to act as trustee (the “U.S. Debt Trustee”), and the U.S. Debt Indenture will have been qualified under the Trust Indenture Act of 1939 (the “TIA”); (ii) all terms of such U.S. Debt Securities not provided for in the U.S. Debt Indenture will have been established in accordance with the provisions of the U.S. Debt Indenture and reflected in appropriate documentation approved by us and, if applicable, executed and delivered by OGI and the U.S. Debt Trustee; and (iii) such U.S. Debt Securities will be executed, authenticated, issued and delivered in accordance with the provisions of the U.S. Debt Indenture.

 

With respect to any Securities consisting of any series of OFHP International Debt Securities or OCHP International Debt Securities, we have further assumed that: (i) such OFHP International Debt Securities or OCHP International Debt Securities and any related Guarantee will have been issued pursuant to an indenture (the “International Debt Indenture”), in a form approved by us, that has been authorized, executed and delivered by OFHP, OCHP, OGI and one or more entities selected by OFHP or OCHP, as applicable, to act as trustee (the “International Debt Trustee”), and the International Debt Indenture will have been qualified under the TIA; (ii) all terms of such OFHP International Debt Securities or OCHP International Debt Securities and any related Guarantee not provided for in the International Debt Indenture will have been established in accordance with the provisions of the International Debt Indenture and reflected in appropriate documentation approved by us and, if applicable, executed and delivered by OFHP, OCHP, OGI and the International Debt Trustee; and (iii) such OFHP International Debt Securities or OCHP International Debt Securities and any related Guarantee will be executed, authenticated, issued and delivered in accordance with the provisions of the International Debt Indenture.

 

With respect to any Securities consisting of Preferred Stock, we have further assumed that OGI will issue and deliver the shares of the Preferred Stock being issued and delivered after the filing with the Secretary of State of the State of New York of a certificate of amendment to the Restated Certificate of Incorporation, approved by us, establishing the designations, preferences and rights of the class or series of the Preferred Stock being issued and delivered.

 

With respect to any Securities consisting of Warrants, we have further assumed that: (i) the warrant agreement, approved by us, relating to the Warrants (the “Warrant Agreement”) to be entered into between OGI and an entity selected by OGI to act as the warrant agent (the “Warrant Agent”) will have been authorized, executed and delivered by OGI and the Warrant Agent; and (ii) the Warrants will be authorized, executed and delivered by OGI and the Warrant Agent in accordance with the provisions of the Warrant Agreement.

 

With respect to any Securities consisting of Subscription Rights, we have further assumed that: (i) the subscription rights agreement, approved by us, relating to the Subscription Rights (the “Subscription Rights Agreement”) to be entered into between OGI and an entity selected by OGI to act as the subscription rights agent (the “Subscription Rights Agent”) will have been authorized, executed and delivered by OGI and the Subscription Rights Agent; and (ii) the Subscription Rights will be authorized, executed and delivered by OGI and the Subscription Rights Agent in accordance with the provisions of the Subscription Rights Agreement.

 

 

 

Omnicom Group Inc.
Omnicom Finance Holdings plc
Omnicom Capital Holding plc
October 21, 2024

Page 5

 

For purposes of our opinions set forth in paragraphs 2 and 3, we have further assumed that (i) OFHP is, and will be at the time of issuance of any OFHP International Debt Securities, a public limited company existing and in good standing under the laws of England and Wales, (ii) OCHP is, and will be at the time of issuance of any OCHP International Debt Securities, a public limited company existing and in good standing under the laws of England and Wales, (iii) the OFHP International Debt Securities and the OCHP International Debt Securities (A) will have been authorized by all necessary corporate action of OFHP and OCHP, as applicable, and (B) will have been executed and delivered by OFHP and OCHP, as applicable, under the laws of England and Wales and (iv) the execution, delivery, performance and compliance with the terms and provisions of the OFHP International Debt Securities and the OCHP International Debt Securities by OFHP and OCHP, respectively, do not violate or conflict with the laws of England and Wales or the terms and provisions of OFHP’s or OCHP’s Certificate of Incorporation and Memorandum and Articles of Association, or any rule, regulation, order, decree judgment, instrument or agreement binding upon or applicable to OFHP or OCHP, or OFHP’s or OCHP’s properties.

 

The opinions set forth in paragraphs 1, 2, 3, 6, 7 and 8 are limited by (i) bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws, and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors’ rights and remedies generally, and (ii) general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or equity.

 

As to facts material to the opinions and assumptions expressed herein, we have relied upon oral or written statements and representations of officers and other representatives of OGI, OFHP, OCHP and others. The opinions expressed herein are limited to the laws of the State of New York, as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction.

 

We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to Jones Day under the caption “Validity of Securities” in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

	Very truly yours,
	/s/ Jones Day

 

 

 

Exhibit 5.2

 

 

AUTHORISED AND REGULATED BY THE SOLICITORS REGULATION AUTHORITY

SRA NO. 223597

21 Tudor Street ● London EC4Y 0DJ

telephone: +44.20.7039.5959

 

Ref/CAM	EJN/JP592393/799841-601004
E-mail	enalbantian@jonesday.com
Direct	020 7039 5145
Date	21 October 2024

 

Omnicom Finance Holdings plc
Bankside 3, 90 - 100 Southwark Street
London
SE1 0SW

Omnicom Capital Holdings plc
Bankside 3, 90 - 100 Southwark Street
London
SE1 0SW

 

Re:

Registration Statement on Form S-3 Filed by Omnicom Finance Holdings plc, Omnicom Capital Holdings plc and Omnicom Group Inc. relating to the Registration (as defined below)

 

Ladies and Gentleman:

 

We have acted as English counsel to Omnicom Finance Holdings plc, a public limited company organised under the laws of England and Wales with registered number 11432221 (the “First Issuer”) and Omnicom Capital Holdings plc, a public limited company organised under the laws of England and Wales with registered number 13671874 (the “Second Issuer” and together with the First Issuer, the “Issuers”, each an “Issuer”) in connection with the Registration Statement on Form S-3 to which this opinion letter (this “Opinion”) has been filed as an exhibit (the “Registration Statement”). The Registration Statement relates to the proposed registration (the “Registration”) under the US Securities Act of 1933 (the “Securities Act”) of debt securities of the Issuers (the “Debt Securities”) which, if issued, will be fully and unconditionally guaranteed by Omnicom Group Inc. (the “Company”). The Debt Securities, if issued by the First Issuer will be issued pursuant to the base indenture, dated as of 6^th March, 2024 (the “First Issuer Indenture”) by and among the First Issuer, the Company and one or more entities selected by the First Issuer to act as trustee in respect of the Debt Securities, and if issued by the Second Issuer will be issued pursuant to the base indenture, dated as of 22^nd November, 2021 (the “Second Issuer Indenture”, and together with the First Issuer Indenture, the “Indentures”, each an “Indenture”) by and among the Second Issuer, the Company and one or more entities selected by the Second Issuer to act as trustee in respect of the Debt Securities. The Debt Securities, if issued, will be guaranteed by the Company.

 

 

 

A LIST OF PARTNERS AND THEIR PROFESSIONAL QUALIFICATIONS IS AVAILABLE AT
21 TUDOR STREET ● LONDON EC4Y 0DJ

 

AMSTERDAM ● ATLANTA ● BEIJING ● BOSTON ● BRISBANE ● BRUSSELS ● CHICAGO ● CLEVELAND ● COLUMBUS ● DALLAS
DETROIT ● DUBAI ● DÜSSELDORF ● FRANKFURT ● HONG KONG ● HOUSTON ● IRVINE ● LONDON ● LOS ANGELES ● MADRID
MELBOURNE ● MEXICO CITY ● MIAMI ● MILAN ● MINNEAPOLIS ● MUNICH ● NEW YORK ● PARIS ● PERTH ● PITTSBURGH
SAN DIEGO ● SAN FRANCISCO ● SÃO PAULO ● SHANGHAI ● SILICON VALLEY ● SINGAPORE ● SYDNEY ● TAIPEI ● TOKYO ● WASHINGTON

 

 

Continued 2

 

1. SCOPE OF REVIEW AND RELIANCE

 

The following agreements and other related documents have been examined (items (a) through (g), inclusive, are referred to herein, collectively, as the “Opinion Documents”):

 

(a) a signed scanned copy of the First Issuer Indenture included as an exhibit to the Registration Statement (including the forms of Debt Securities to be issued pursuant to the First Issuer Indenture (the “First Issuer Debt Securities”) attached as exhibits to the First Issuer Indenture);

 

(b) a signed scanned copy of the Second Issuer Indenture included as an exhibit to the Registration Statement (including the forms of Debt Securities to be issued pursuant to the Second Issuer Indenture (the “Second Issuer Debt Securities”) attached as exhibits to the Second Issuer Indenture);

 

(c) a copy of the Certificate of Incorporation of the First Issuer, and a copy of the Articles of Association of the First Issuer, in each case, obtained from the Company Search referred to below (the “First Issuer Articles of Association”);

 

(d) a copy of the Certificate of Incorporation of the Second Issuer, and a copy of the Articles of Association of the Second Issuer, in each case, obtained from the Company Search referred to below (the “Second Issuer Articles of Association” and together with the First Issuer Articles of Association, the “Articles of Association”);

 

(e) a certified copy of the minutes (the “First Issuer Minutes”) of a meeting of the board of directors of the First Issuer held on 15 October 2024 at which the directors of the First Issuer, amongst other things, passed resolutions (the “First Issuer Resolutions”) relating to the Opinion Documents;

 

(f) a certified copy of the minutes (the “Second Issuer Minutes” and together with the First Issuer Minutes, the “Minutes”) of a meeting of the board of directors of the Second Issuer held on 15 October 2024 at which the directors of the Second Issuer, amongst other things, passed resolutions (the “Second Issuer Resolutions”, and together with the First Issuer Resolutions, the “Resolutions”) relating to the Opinion Documents; and

 

(g) the Registration Statement.

 

We have not reviewed any documents other than the Opinion Documents. The only search and enquiry that we have made for the purpose of giving this Opinion is an online search in England and Wales on 21 October 2024 of the public documents of each Issuer kept at Companies House in Cardiff (the “Company Search”). The Registration Statement, the Indentures and the Debt Securities are hereinafter collectively referred to as the “Transaction Documents”.

 

2. ASSUMPTIONS

 

For the purposes of giving this Opinion, we have assumed, with your consent and without further investigation on our part, that, so far as the laws of every jurisdiction other than England and Wales are concerned, all restrictions, laws, guidelines, regulations or reporting requirements that apply to the Indentures and any issue of Debt Securities thereunder have been or will be complied with and that such laws do not qualify or affect our opinions in this Opinion as set out below.

 

 

Continued 3

 

We have also made the following assumptions with your consent and without investigation on our part:

 

(a) insofar as any obligation falls to be performed in any jurisdiction outside England, its performance will not be illegal or ineffective by virtue of the laws of that jurisdiction;

 

(b) all signatures on the executed documents which, or copies (whether photocopies, certified copies, facsimile copies or electronic copies) of which, we have examined are genuine, and that such copies conform to the original documents executed;

 

(c) where a signatory signs a Transaction Document by electronic signature, (i) such signatory intends to authenticate such document and (ii) any formalities relating to the execution of such document are satisfied;

 

(d) each of the parties to the Transaction Documents, other than the Issuers, is able lawfully to enter into such Transaction Documents

 

(e) that each corporate party (other than the Issuers) is duly organised, validly existing and in good standing (where such concept is legally relevant) under the laws of its jurisdiction of incorporation and has the capacity, power and authority to execute and deliver the Transaction Documents to which it is a party, and to exercise its respective rights and perform its respective obligations under the Transaction Documents to which it is a party;

 

(f) the execution and delivery of the Transaction Documents have been or will be duly authorised by each of the parties thereto in accordance with all applicable laws, other than in the case of the Issuers the laws of England and Wales, that such documents have been or will be duly executed and unconditionally delivered by each of the relevant parties thereto with effect from the date it is expressed to be effective in accordance with all applicable laws and is not or will not be (when delivered) subject to any escrow or similar arrangement, that all conditions precedent to the effectiveness of the Transaction Documents contained therein have been satisfied and such documents are unconditional in all respects, and that such documents shall constitute the valid and binding obligations of each of such parties enforceable in accordance with all applicable laws (other than the laws of England and Wales in the case of the Issuers with respect to the Debt Securities) and, if the laws or regulations of any other jurisdiction may be relevant to the obligations or rights of any of the parties in any of the Transaction Documents or any of the transactions contemplated by any Transaction Document, such laws do not prohibit, and are not inconsistent with, the entry into and performance of any such obligations, rights or transactions;

 

(g) each of the parties to the Transaction Documents who is carrying on, or purporting to carry on, any regulated activity in the United Kingdom is an authorised person permitted to carry on that relevant regulated activity or an exempt person in respect of that regulated activity under the Financial Services and Markets Act 2000 (the “FSMA”) and no such agreement was or will be entered into in consequence of a communication made in breach of section 21(1) of the FSMA;

 

 

Continued 4

 

(h) the Debt Securities will be issued pursuant to the Indentures, as authorised, executed and delivered by the Issuers, the Company and one or more entities selected by the Issuers to act as trustee, and the Debt Securities will be duly prepared and completed in accordance with the provisions and arrangements contained or described in the Indentures and will be in the form of the Debt Securities as provided for and set out in the Indentures;

 

(i) the Articles of Association, which we have examined, are those in force and the Resolutions which we have examined were passed at a board meeting of the each Issuer duly convened and held (using the correct procedure) and that a duly qualified quorum of directors of each Issuer voted in favour of approving the applicable Resolutions, and that the facts on which the Minutes were based were true and the directors’ decisions were taken in good faith and on reasonable grounds for believing that the transactions contemplated thereby would be most likely to promote the success of the applicable Issuer for the benefit of its members as a whole and that the Resolutions have not been subsequently amended, rescinded, modified, superseded or revoked and are in full force and effect and the certifications referred to in 1(c) to (d) above are true and accurate;

 

(j) the issue of Debt Securities will not cause any limit on borrowings to which either Issuer is subject to be exceeded;

 

(k) the absence of mutual mistake of fact, of any facts or matters which were not revealed by the Transaction Documents or of any other arrangements, documents, agreements or course of dealing between any of the parties to the Transaction Documents which modify or supersede any of their terms or that would result in the inclusion of any additional terms in any of them or would affect this Opinion;

 

(l) each of the Transaction Documents has been entered into, and the transactions referred to therein are carried out, by each of the parties in good faith, for bona fide commercial reasons, for the purpose of carrying on their respective businesses (and, in the case of each Issuer, in furtherance of its objects, whether contained in its Articles of Association or otherwise), for the benefit of each of them respectively and on arm’s length commercial terms and each Transaction Document will promote the success of each Issuer for the benefit of its members as a whole;

 

(m) each of the Transaction Documents has not been entered into in consequence of bad faith, fraud, coercion, duress, misrepresentation or undue influence or on the basis of a mistake of fact or law or believing that the Transaction Documents are fundamentally different in substance or in kind from what it is, or in connection with money laundering or any other unlawful activity;

 

(n) none of the parties to the Transaction Documents is or will be seeking to achieve any purpose not apparent from the Transaction Documents which might render any of them illegal, void or unenforceable;

 

 

Continued 5

 

(o) the truth, accuracy, correctness and completeness in all respects of all information, statements, certifications, acknowledgements, confirmations and representations and warranties (with the exception of representations and warranties on matters on which we have specifically and expressly given our opinion in this Opinion) contained in the Opinion Documents and that all the terms and conditions of the Transaction Documents will be observed and performed by all the parties thereto;

 

(p) each Issuer is neither an authorised person nor an exempt person in relation to the regulated activity of accepting deposits under the FSMA;

 

(q) no request will be made to admit any Debt Securities to trading on a regulated market situated or operating in the United Kingdom;

 

(r) all applicable provisions of the FSMA and any applicable secondary legislation made under it have been complied with respect to the Transaction Documents;

 

(s) all documents presented to us as originals are true, complete and accurate and all documents submitted to us as copies conform with the originals and that any documents in draft or specimen form which we have examined for the purposes hereof will not change when it will be or has been executed;

 

(t) each Transaction Party is able to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or would otherwise be solvent pursuant to any legislation applicable to it at the time of executing any of the Transaction Documents, and will not, as a consequence of executing any of the Transaction Documents, become unable to pay its debts within the meaning of that section or otherwise be insolvent pursuant to any applicable legislation and:

 

(i) none of the Transaction Parties has passed a resolution for its winding up or dissolution;

 

(ii) no proceedings have been commenced or steps taken for the winding up of any Transaction Party or for the appointment of any administrator, an administrative receiver or receiver or manager in relation to any Transaction Party or any assets or revenue of any Transaction Party; and/or

 

(iii) no analogous procedure or step described in paragraphs (i) and (ii) above has been taken in any jurisdiction in relation to any Transaction Party;

 

(u) each Transaction Party either (i) physically distributed to the other parties to the Transaction Documents (or their legal advisors) complete execution versions of the Transaction Documents to which it is a party signed by it which are identical to the forms of the Transaction Documents that we have received pursuant to paragraph 1 above or (ii) delivered signed versions of the Transaction Documents to which it is a party which are identical to the forms of the Transaction Documents that we received pursuant to paragraph 3 above as part of a virtual signing in accordance with options 1 or 2 (as applicable) of the Law Society’s practice note in respect of the execution of documents at virtual signings or closings dated 16 February 2010, in each case on an unconditional basis with effect from the date it is expressed to be effective;

 

 

Continued 6

 

(v) each Transaction Party’s entry into, exercise of its rights under, performance of its obligations under, and compliance with the terms of the Transaction Documents do not and will not violate any contract, agreement or undertaking to which it is a party;

 

(w) all consents, licenses, approvals, notices, filings, publications and registrations that are necessary under any applicable laws or regulations (other than the laws of England and Wales) in order to permit the execution, delivery or performance of the Transaction Documents or to protect or preserve any of the interests (whether by way of security or otherwise) created by the Transaction Documents have been made or obtained or will be made or obtained within the period permitted by these laws or regulations;

 

(x) the choice of law and jurisdiction provisions relating to each Transaction Document were made for bona fide purposes and are valid and binding under all relevant laws (other than the laws of England and Wales) and that none of the opinions in this Opinion as expressed below would be affected by any law or public policy of any jurisdiction other than England;

 

(y) in respect of a judgment entered in any suit, action or proceeding arising out of or in connection with the Transaction Documents such judgment was entered by the relevant New York court which had jurisdiction to determine such suit, action or proceeding;

 

(z) the information revealed by the Company Search was true, accurate, complete and up to date in all respects and has not since then been altered or supplemented;

 

(aa) each Transaction Party’s “centre of main interests” (as that term is used in Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (“EU Recast Insolvency Regulation”) as incorporated in its unamended version into English law pursuant to the European Union (Withdrawal) Act 2018, and in The Insolvency (Amendment) (EU Exit) Regulations 2019 (SI 2019/146) and in The Cross-Border Insolvency Regulations 2006 (SI 2006/1030) (which implement the UNCITRAL Model Law on Cross-Border Insolvency in the UK) (“Cross-Border Insolvency Regulations”)) is, and always has been, situated in the England and Wales and it has no “establishment” (as that term is defined in Article 2(10) of the EU Recast Insolvency Regulation and in the Cross-Border Insolvency Regulations) in any other jurisdiction;

 

(bb) the parties to the Transaction Documents have complied (and will continue to comply) with all applicable anti-terrorism, sanctions, anti-corruption, anti-money laundering and human rights laws and regulations, and there is nothing in the transactions contemplated by the Transaction Documents that is inconsistent with all such laws and regulations;

 

(cc) no part of the Transaction Documents will constitute unlawful financial assistance for the purposes of section 678 or section 679 of the Companies Act 2006; and

 

(dd) the meaning of the terms of the Transaction Documents would not differ from the meaning of the terms of the Transaction Documents if governed by English law.

 

 

Continued 7

 

3. LIMITATIONS

 

This Opinion is given only with respect to English law in force and published at the date of this Opinion as applied by the English courts as at the date of this Opinion. We have made no investigation of, and therefore express or imply no opinion as to, the laws of any other jurisdiction or as to the application of English or any other law by any other courts. In particular we express no opinion on European Union law (as assimilated within English law, following the United Kingdom’s departure from the European Union) as it affects any jurisdiction other than England. To the extent that the laws of any jurisdiction other than England may be relevant, we have made no independent investigation thereof and our opinions in this Opinion is subject to the effect of such laws, including as to matters of New York law.

 

The Indentures are and the Debt Securities will be governed by the laws of the State of New York. We have made no investigation of such laws and do not express or imply any opinion on such laws. In addition, we have assumed that, so far as the laws of the State of New York and US securities laws are concerned, the Indentures are and the Debt Securities will, on issue in accordance with the Indentures, constitute legal, valid and binding obligations of the Issuer and that such laws do not qualify or affect our opinions in this Opinion as set out below.

 

4. OPINIONS

 

Based on the assumptions set out in this Opinion and subject to the reservations, qualifications, limitations and observations set out in this Opinion, we are of the opinion that as at the date of this Opinion:

 

4.1

Each Issuer has been incorporated and registered as a public limited company in England and Wales under the Companies Act 2006.

 

4.2

The First Issuer has corporate power to enter into and perform its obligations under the First Issuer Indenture and to issue and perform its obligations under the First Issuer Debt Securities.

 

4.3

The Second Issuer has corporate power to enter into and perform its obligations under the Second Issuer Indenture and to issue and perform its obligations under the Second Issuer Debt Securities.

 

4.4

The issue of the First Issuer Debt Securities has been duly authorised by all necessary corporate action by the First Issuer and when (a) the Registration Statement has become effective under the Securities Act and (b) the First Issuer Debt Securities have been duly executed by the First Issuer and authenticated in accordance with the terms of the First Issuer Indenture and delivered in the manner provided in the First Issuer Indenture, we would expect the English courts to recognise the choice of law of New York law as the governing law of the First Issuer Debt Securities. We would expect the English courts to enforce a final and conclusive judgment for a sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty) entered against the First Issuer by a court of competent jurisdiction in the State of New York in connection with the enforcement of the contractual obligations in the First Issuer Debt Securities, would be registerable in England pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the “1933 Act”) and, upon such registration, would be of the same force and effect as if the judgment had been a judgment originally given in the High Court of England and entered on the date of registration.

 

 

Continued 8

 

4.5

The issue of the Second Issuer Debt Securities has been duly authorised all necessary corporate action by the Second Issuer and when (a) the Registration Statement has become effective under the Securities Act and (b) the Second Issuer Debt Securities have been duly executed by the Second Issuer and authenticated in accordance with the terms of the Second Issuer Indenture and delivered in the manner provided in the Second Issuer Indenture, we would expect the English courts to recognise the choice of law of New York law as the governing law of the Second Issuer Debt Securities. We would expect the English courts to enforce a final and conclusive judgment for a sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty), entered against the Second Issuer by a court of competent jurisdiction in the State of New York in connection with the enforcement of the contractual obligations in the Second Issuer Debt Securities, would be registerable in England pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the “1933 Act”) and, upon such registration, would be of the same force and effect as if the judgment had been a judgment originally given in the High Court of England and entered on the date of registration.

 

5. QUALIFICATIONS

 

Nothing in this Opinion shall be taken as implying that an English court would exercise jurisdiction in any proceedings relating to the Indentures or the Debt Securities or accordingly that any remedy would be available in England for the enforcement of obligations arising under the Indentures or the Debt Securities.

 

This Opinion is subject to the following:

 

(a) The opinions in this Opinion are strictly limited to the matters stated in paragraph 4 above and do not extend to any other matters. We express no opinion as to matters of fact. We have not been responsible for investigating or verifying the accuracy of the facts (including statements of foreign law), or the reasonableness of any statement of opinion or intention, contained in or relevant to any document referred to in this Opinion, or that no material facts have been omitted therefrom.

 

(b) The Company Search is not capable of revealing conclusively whether or not (i) a winding up order has been made or a resolution passed for the winding up of a company, (ii) an administration order has been made, or (iii) a receiver, administrative receiver, administrator, moratorium monitor or liquidator has been appointed, since notice of these matters may not be filed with the Registrar of Companies immediately and, when filed, may not be entered on the public database or recorded on the public microfiches of the relevant company immediately. In addition, the Company Search is not capable of revealing, prior to the making of the relevant order, whether or not a winding up petition has been presented or an application for an administration order has been made nor will the search conclusively reveal whether a charge or other restriction or prohibition has been created in relation to the real property owned by the relevant party.

 

 

Continued 9

 

(c) Laws relating to liquidation or administration or other laws or procedures affecting generally the enforcement of creditors’ rights may affect any obligations of the Issuers under the Transaction Documents and the remedies available.

 

(d) An English court may, in its discretion, order a claimant in an action who is not ordinarily resident in some part of England and Wales to provide security for costs.

 

(e) The Registration Statement has been prepared by the Issuers and the Company, who have accepted responsibility for the information contained therein. We have not investigated or verified the truth or accuracy of the information contained in the Registration Statement, nor have we been responsible for ensuring that no material information has been omitted from it.

 

(f) An English Court will not apply a chosen foreign law if: (i) it is not pleaded and proved; (ii) to do so would be contrary to the mandatory rules of English law or of such chosen foreign law or manifestly incompatible with English public policy; or (iii) the choice is not valid under the chosen law. In the English courts, foreign law is treated as a matter of fact and must be pleaded by the party relying on that law and, save in limited exceptions, must be proved by evidence. We express no opinion as to whether satisfactory evidence of the laws of any jurisdiction could be pleaded and proved as a fact in any proceedings before the English courts.

 

(g) There are no reciprocal arrangements in force between the State of New York or the United States of America and the United Kingdom for the recognition or enforcement of judgments. Accordingly, a judgment by the courts of the State of New York, United States of America or, as the case may be, any federal court of the United States of America (each such court being a “US Court”) is not enforceable directly in England but may be recognised by the English courts according to common law principles. A judgment by a US Court will not be enforced by the English courts if:

 

(i) that US Court had no jurisdiction, as a matter of English law, over the defendant;

 

(ii) the judgment was given in default of appearance and the defendant was not served with process in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

 

(iii) the proceedings in which the judgment was given were opposed to natural justice;

 

(iv) the judgment was obtained by fraud;

 

(v) the enforcement of the judgment would be contrary to English public policy or the Human Rights Act 1998;

 

 

Continued 10

 

(vi) an order has been made and remains effective under section 9 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 applying that section to judgments of that US Court;

 

(vii) before the date on which the US Court gave judgment, the matter in dispute had been the subject of a final judgment of another court having jurisdiction between the same parties or their privies, that judgment is enforceable in England, and that judgment conflicts with the judgment intended to be enforced in England;

 

(viii) the judgment is for multiple damages within the meaning of section 5(3) of the Protection of Trading Interests Act 1980 or based on a claim for contribution in respect of the same;

 

(ix) the judgment is based on a rule of law specified by the Secretary of State for Foreign, Commonwealth and Development Affairs as concerned with the prohibition of restrictive trade practices or based on a claim for contribution in respect of the same (within the meaning of section 5(4) of the Protection of Trading Interests Act 1980);

 

(x) the judgment is based on foreign measures which the Secretary of State for Foreign, Commonwealth and Development Affairs specifies as regulating and controlling international trade and which, in so far as they apply to persons carrying on business in the United Kingdom, are damaging or threaten to damage the trading interests of the United Kingdom (within the meaning of section 1 of the Protection of Trading Interests Act 1980); or

 

(xi) the bringing of proceedings in that US Court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in that US Court.

 

If the English court gives judgment for the sum payable under a judgment of a US Court, the English judgment would be enforceable by the methods generally available for the enforcement of English judgments. These give the court a discretion whether to allow enforcement by any particular method. In addition, it may not be possible to obtain an English judgment or to enforce any English judgment if the judgment debtor is subject to any insolvency or similar proceedings, if there is delay, if an appeal is pending or anticipated against the English judgment in England or against the foreign judgment in the US courts or if the judgment debtor has any set-off or counterclaim against the judgment creditor.

 

Furthermore, there is doubt as to the enforceability in England and Wales of judgments of US Courts in respect of civil judgments predicated purely on US securities law.

 

(h) English courts can give judgments in currencies other than pounds sterling if, subject to the terms of the contract, it is the currency which most fairly expresses the claimant’s loss but judgments of this nature may be required to be converted into pounds sterling for execution purposes.

 

(i) Under the rules of procedure, an English court may, in certain circumstances, order a claimant in an action to provide security for costs.

 

 

Continued 11

 

(j) No account has been taken in this Opinion of the future exercise of powers by the UK Government pursuant to section 5(4) of the Protection of Trading Interests Act 1980.

 

(k) We express no opinion as to compliance or otherwise with the financial limitations on borrowings by each Issuer contained in their respective Articles of Association.

 

(l) We give no opinion as to tax or as to any liability to tax.

 

(m) We have not considered the particular circumstances of any party to the Transaction Documents nor the effect of any such particular circumstances on the Transaction Documents or the effect of the transaction contemplated by the Transaction Documents on any such particular circumstances.

 

This Opinion is given on the basis that it and any non-contractual obligations arising out of it are governed by and shall be construed in accordance with English law as at the date of this Opinion, and is given to the Issuers in connection with the registration under the Securities Act of the Debt Securities. The English courts shall have exclusive jurisdiction in relation to all disputes arising out of or in connection with this Opinion.

 

This Opinion is rendered to you and is solely for your benefit in connection with the transactions covered hereby. This Opinion may not be relied upon by you for any other purpose, or furnished to, quoted to or relied upon by any other person, firm or corporation for any purpose, without our prior written consent. Notwithstanding the foregoing, we consent to the filing of this Opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Validity of Securities” in the prospectus that is a part of the Registration Statement. In giving such consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the US Securities and Exchange Commission thereunder.

 

Yours faithfully,

 

/s/ Jones Day

 

 

 

 

Exhibit 23.1

 

	KPMG LLP 345 Park Avenue New York, NY 10154-0102

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the use of our reports dated February 7, 2024, with respect to the consolidated financial statements of Omnicom Group Inc. and subsidiaries (the Company) including the consolidated balance sheets as of December 31, 2023 and 2022, the related consolidated statements of income, comprehensive income, equity, and cash flows for each of the years in the three-year period ended December 31, 2023, and the related notes and financial statement schedule II (collectively, the consolidated financial statements), and the effectiveness of internal control over financial reporting, incorporated herein by reference, and to the reference to our firm under the heading “Experts” in the prospectus.

 

/s/ KPMG LLP

 

New York, New York
October 21, 2024

 

 

KPMG LLP, a Delaware limited liability partnership and a member firm of the KPMG global organization of independent member firms affiliated with KPMG International Limited, a private English company limited by guarantee.

 

Exhibit 25.1

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM T-1

 

STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

☐ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

(formerly BANKERS TRUST COMPANY)

(Exact name of trustee as specified in its charter)

 

NEW YORK		13-4941247
(Jurisdiction of Incorporation or organization if not a U.S. national bank)		(I.R.S. Employer Identification no.)
ONE COLUMBUS CIRCLE NEW YORK, NEW YORK		10019
(Address of principal executive offices)		(Zip Code)

 

Deutsche Bank Trust Company Americas

1 Columbus Circle

New York, New York 10019

(212) 250 – 2500

(Name, address and telephone number of agent for service)

 

 

Omnicom Group Inc.
(Exact name of obligor as specified in its charter)

 

New York		13-1514814
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
280 Park Avenue New York, NY		10017
(Address of principal executive offices)		(Zip code)

 

 

Debt Securities
(Title of the Indenture securities)

 

 

 

Item 1. General Information.

  

Furnish the following information as to the trustee.

 

(a)

Name and address of each examining or supervising authority to which it is subject.

 

	Name		Address
	Federal Reserve Bank (2nd District)		New York, NY
	Federal Deposit Insurance Corporation		Washington, D.C.
	New York State Banking Department		Albany, NY

 

(b)

Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

Item 2. Affiliations with Obligor.

 

If the obligor is an affiliate of the Trustee, describe each such affiliation.

 

None.

 

Item 3. -15. Not Applicable

 

Item 16. List of Exhibits.

 

	Exhibit 1 -	Restated Organization Certificate of Bankers Trust Company dated August 6, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 16, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 16, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated February 27, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 2 -	Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 3 -	Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 4 -	A copy of existing By-Laws of Deutsche Bank Trust Company Americas, incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 333-271647.
	Exhibit 5 -	Not applicable.
	Exhibit 6 -	Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 7 -	A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
	Exhibit 8 -	Not Applicable.
	Exhibit 9 -	Not Applicable.

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 7th day of October, 2024.

 

	DEUTSCHE BANK TRUST COMPANY AMERICAS
	By:	/s/ Sebastian Hidalgo
	Name:	Sebastian Hidalgo
	Title:	Assistant Vice President

 

Exhibit 7

 

	Board of Governors of the Federal Reserve System	OMB Number 7100-0036
	Federal Deposit Insurance Corporation	OMB Number 3064-0052
	Office of the Comptroller of the Currency	OMB Number 1557-0081
		Approval expires June 30, 2027
		Page 1 of 85

 

Federal Financial Institutions Examination Council

 

Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041

 

The estimated average burden associated with this information collection is 55.56 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.

 

06/2024

FFIEC 041 Page 16 of 85 RC-1

 

Consolidated Report of Condition for Insured Banks and Savings Associations for June 30, 2024

 

All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.

 

Schedule RC—Balance Sheet

	Dollar Amounts in Thousands			RCON	Amount
Assets
1.	Cash and balances due from depository institutions (from Schedule RC-A)
	a. Noninterest-bearing balances and currency and coin(1)			0081	23,000		1.a.
	b. Interest-bearing balances(2)			0071	15,273,000		1.b.
2.	Securities:
	a. Held-to-maturity securities (from Schedule RC-B, column A)(3)			JJ34	0		2.a.
	b. Available-for-sale debt securities (from Schedule RC-B, column D)			1773	376,000		2.b.
	c. Equity securities with readily determinable fair values not held for trading(4)			JA22	0		2.c.
3.	Federal funds sold and securities purchased under agreements to resell:
	a. Federal funds sold			B987	0		3.a.
	b. Securities purchased under agreements to resell(5, 6)			B989	5,921,000		3.b.
4.	Loans and lease financing receivables (from Schedule RC-C):
	a. Loans and leases held for sale			5369	0		4.a.
	b. Loans and leases held for investment	B528	16,614,000				4.b.
	c. LESS: Allowance for credit losses on loans and leases	3123	26,000				4.c.
	d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c)			B529	16,588,000		4.d.
5.	Trading assets (from Schedule RC-D)			3545	0		5.
6.	Premises and fixed assets (includingr ight-of-use assets)			2145	0		6.
7.	Other real estate owned (from Schedule RC-M)			2150	4,000		7.
8.	Investments in unconsolidated subsidiaries and associated companies			2130	0		8.
9.	Direct and indirect investments in real estate ventures			3656	0		9.
10.	Intangible assets (from Schedule RC-M)			2143	1,000		10.
11.	Other assets (from Schedule RC-F)(6)			2160	2,405,000		11.
12.	Total assets (sum of items 1 through 11)			2170	40,591,000		12.
Liabilities
13.	Deposits:
	a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)			2200	27,997,000		13.a.
	(1) Noninterest-bearing(7)	6631	10,665,000				13.a.(1)
	(2) Interest-bearing	6636	17,332,000				13.a.(2)
	b. Not applicable
14.	Federal funds purchased and securities sold under agreements to repurchase:
	a. Federal funds purchased(8)			B993	0		14.a.
	b. Securities sold under agreements to repurchase(9)			B995	0		14.b.
15.	Trading liabilities (from Schedule RC-D)			3548	0		15.
16.	Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M)			3190	0		16.
17.	and 18. Not applicable
19.	Subordinated notes and debentures(10)			3200	0		19.

 

1.	Includes cash items in process of collection and unposted debits.

2.	Includes time certificates of deposit not held for trading.

3.	Institutions should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B.

4.	Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for “Securities Activities” for further detail on accounting for investments in equity securities.

5.	Includes all securities resale agreements, regardless of maturity.

6.	Institutions should report in items 3.b and 11 amounts net of any applicable allowance for credit losses.

7.	Includes noninterest-bearing demand, time, and savings deposits.

8.	Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.”

9.	Includes all securities repurchase agreements, regardless of maturity.

10.	Includes limited-life preferred stock and related surplus.

 

06/2024

 

FFIEC 041 Page 17 of 85 RC-2

 

Schedule RC—Continued

 

	Dollar Amounts in Thousands	RCON	Amount
Liabilities—continued
20.	Other liabilities (from Schedule RC-G)	2930	2,708,000		20.
21.	Total liabilities (sum of items 13 through 20)	2948	30,705,000		21.
22.	Not applicable
Equity Capital
	Bank Equity Capital
23.	Perpetual preferred stock and related surplus	3838	0		23.
24.	Common stock	3230	2,127,000		24.
25.	Surplus (exclude all surplus related to preferred stock)	3839	935,000		25.
26.	a. Retained earnings	3632	6,860,000		26.a.
	b. Accumulated other comprehensive income(1)	B530	(36,000)		26.b.
	c. Other equity capital components(2)	A130	0		26.c.
27.	a. Total bank equity capital (sum of items 23 through 26.c)	3210	9,886,000		27.a.
	b. Noncontrolling (minority) interests in consolidated subsidiaries	3000	0		27.b.
28.	Total equity capital (sum of items 27.a and 27.b)	G105	9,886,000		28.
29.	Total liabilities and equity capital (sum of items 21 and 28)	3300	40,591,000		29.
Memoranda
To be reported with the March Report of Condition.
1.	Indicate in the box at the right the number of the statement below that best describes the most
	comprehensive level of auditing work performed for the bank by independent external auditors as of	RCON	Number
	any date during 2023	6724	NA		M.1.

 

To be reported with the March Report of Condition.		RCON	Date
2.	Bank’s fiscal year-end date (report the date in MMDD format)	8678	NA		M.2.

 

1.	Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments.

2.	Includes treasury stock and unearned Employee Stock Ownership Plan shares.

 

06/2012

Exhibit 25.2

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM T-1

 

STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

☐ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

(formerly BANKERS TRUST COMPANY)

(Exact name of trustee as specified in its charter)

 

NEW YORK		13-4941247
(Jurisdiction of Incorporation or organization if not a U.S. national bank)		(I.R.S. Employer Identification no.)
ONE COLUMBUS CIRCLE NEW YORK, NEW YORK		10019
(Address of principal executive offices)		(Zip Code)

 

Deutsche Bank Trust Company Americas

1 Columbus Circle

New York, New York 10019

(212) 250 – 2500

(Name, address and telephone number of agent for service)

 

 

Omnicom Finance Holdings plc
(Exact name of obligor as specified in its charter)

 

England and Wales		Not Applicable
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
Bankside 3, 90-100 Southwark Street London, SE1 0SW, United Kingdom		Not Applicable
(Address of principal executive offices)		(Zip code)

 

Omnicom Group Inc.
(Exact name of obligor as specified in its charter)

 

New York		13-1514814
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
280 Park Avenue New York, NY		10017
(Address of principal executive offices)		(Zip code)

 

 

Debt Securities
(Title of the Indenture securities)

 

 

 

Item 1. General Information.

  

Furnish the following information as to the trustee.

 

(a)

Name and address of each examining or supervising authority to which it is subject.

 

	Name		Address
	Federal Reserve Bank (2nd District)		New York, NY
	Federal Deposit Insurance Corporation		Washington, D.C.
	New York State Banking Department		Albany, NY

 

(b)

Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

Item 2. Affiliations with Obligor.

 

If the obligor is an affiliate of the Trustee, describe each such affiliation.

 

None.

 

Item 3. -15. Not Applicable

 

Item 16. List of Exhibits.

 

	Exhibit 1 -	Restated Organization Certificate of Bankers Trust Company dated August 6, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 16, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 16, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated February 27, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 2 -	Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 3 -	Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 4 -	A copy of existing By-Laws of Deutsche Bank Trust Company Americas, incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 333-271647.
	Exhibit 5 -	Not applicable.
	Exhibit 6 -	Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 7 -	A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
	Exhibit 8 -	Not Applicable.
	Exhibit 9 -	Not Applicable.

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 7th day of October, 2024.

 

	DEUTSCHE BANK TRUST COMPANY AMERICAS
	By:	/s/ Sebastian Hidalgo
	Name:	Sebastian Hidalgo
	Title:	Assistant Vice President

 

Exhibit 7

 

	Board of Governors of the Federal Reserve System	OMB Number 7100-0036
	Federal Deposit Insurance Corporation	OMB Number 3064-0052
	Office of the Comptroller of the Currency	OMB Number 1557-0081
		Approval expires June 30, 2027
		Page 1 of 85

 

Federal Financial Institutions Examination Council

 

Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041

 

The estimated average burden associated with this information collection is 55.56 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.

 

06/2024

FFIEC 041 Page 16 of 85 RC-1

 

Consolidated Report of Condition for Insured Banks and Savings Associations for June 30, 2024

 

All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.

 

Schedule RC—Balance Sheet

	Dollar Amounts in Thousands			RCON	Amount
Assets
1.	Cash and balances due from depository institutions (from Schedule RC-A)
	a. Noninterest-bearing balances and currency and coin(1)			0081	23,000		1.a.
	b. Interest-bearing balances(2)			0071	15,273,000		1.b.
2.	Securities:
	a. Held-to-maturity securities (from Schedule RC-B, column A)(3)			JJ34	0		2.a.
	b. Available-for-sale debt securities (from Schedule RC-B, column D)			1773	376,000		2.b.
	c. Equity securities with readily determinable fair values not held for trading(4)			JA22	0		2.c.
3.	Federal funds sold and securities purchased under agreements to resell:
	a. Federal funds sold			B987	0		3.a.
	b. Securities purchased under agreements to resell(5, 6)			B989	5,921,000		3.b.
4.	Loans and lease financing receivables (from Schedule RC-C):
	a. Loans and leases held for sale			5369	0		4.a.
	b. Loans and leases held for investment	B528	16,614,000				4.b.
	c. LESS: Allowance for credit losses on loans and leases	3123	26,000				4.c.
	d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c)			B529	16,588,000		4.d.
5.	Trading assets (from Schedule RC-D)			3545	0		5.
6.	Premises and fixed assets (includingr ight-of-use assets)			2145	0		6.
7.	Other real estate owned (from Schedule RC-M)			2150	4,000		7.
8.	Investments in unconsolidated subsidiaries and associated companies			2130	0		8.
9.	Direct and indirect investments in real estate ventures			3656	0		9.
10.	Intangible assets (from Schedule RC-M)			2143	1,000		10.
11.	Other assets (from Schedule RC-F)(6)			2160	2,405,000		11.
12.	Total assets (sum of items 1 through 11)			2170	40,591,000		12.
Liabilities
13.	Deposits:
	a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)			2200	27,997,000		13.a.
	(1) Noninterest-bearing(7)	6631	10,665,000				13.a.(1)
	(2) Interest-bearing	6636	17,332,000				13.a.(2)
	b. Not applicable
14.	Federal funds purchased and securities sold under agreements to repurchase:
	a. Federal funds purchased(8)			B993	0		14.a.
	b. Securities sold under agreements to repurchase(9)			B995	0		14.b.
15.	Trading liabilities (from Schedule RC-D)			3548	0		15.
16.	Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M)			3190	0		16.
17.	and 18. Not applicable
19.	Subordinated notes and debentures(10)			3200	0		19.

 

1.	Includes cash items in process of collection and unposted debits.

2.	Includes time certificates of deposit not held for trading.

3.	Institutions should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B.

4.	Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for “Securities Activities” for further detail on accounting for investments in equity securities.

5.	Includes all securities resale agreements, regardless of maturity.

6.	Institutions should report in items 3.b and 11 amounts net of any applicable allowance for credit losses.

7.	Includes noninterest-bearing demand, time, and savings deposits.

8.	Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.”

9.	Includes all securities repurchase agreements, regardless of maturity.

10.	Includes limited-life preferred stock and related surplus.

 

06/2024

 

FFIEC 041 Page 17 of 85 RC-2

 

Schedule RC—Continued

 

	Dollar Amounts in Thousands	RCON	Amount
Liabilities—continued
20.	Other liabilities (from Schedule RC-G)	2930	2,708,000		20.
21.	Total liabilities (sum of items 13 through 20)	2948	30,705,000		21.
22.	Not applicable
Equity Capital
	Bank Equity Capital
23.	Perpetual preferred stock and related surplus	3838	0		23.
24.	Common stock	3230	2,127,000		24.
25.	Surplus (exclude all surplus related to preferred stock)	3839	935,000		25.
26.	a. Retained earnings	3632	6,860,000		26.a.
	b. Accumulated other comprehensive income(1)	B530	(36,000)		26.b.
	c. Other equity capital components(2)	A130	0		26.c.
27.	a. Total bank equity capital (sum of items 23 through 26.c)	3210	9,886,000		27.a.
	b. Noncontrolling (minority) interests in consolidated subsidiaries	3000	0		27.b.
28.	Total equity capital (sum of items 27.a and 27.b)	G105	9,886,000		28.
29.	Total liabilities and equity capital (sum of items 21 and 28)	3300	40,591,000		29.
Memoranda
To be reported with the March Report of Condition.
1.	Indicate in the box at the right the number of the statement below that best describes the most
	comprehensive level of auditing work performed for the bank by independent external auditors as of	RCON	Number
	any date during 2023	6724	NA		M.1.

 

To be reported with the March Report of Condition.		RCON	Date
2.	Bank’s fiscal year-end date (report the date in MMDD format)	8678	NA		M.2.

 

1.	Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments.

2.	Includes treasury stock and unearned Employee Stock Ownership Plan shares.

 

06/2012

Exhibit 25.3

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM T-1

 

STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

☐ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)

 

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

(formerly BANKERS TRUST COMPANY)

(Exact name of trustee as specified in its charter)

 

NEW YORK		13-4941247
(Jurisdiction of Incorporation or organization if not a U.S. national bank)		(I.R.S. Employer Identification no.)
ONE COLUMBUS CIRCLE NEW YORK, NEW YORK		10019
(Address of principal executive offices)		(Zip Code)

 

Deutsche Bank Trust Company Americas

1 Columbus Circle

New York, New York 10019

(212) 250 – 2500

(Name, address and telephone number of agent for service)

 

 

Omnicom Capital Holdings plc
(Exact name of obligor as specified in its charter)

 

England and Wales		Not Applicable
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
Bankside 3, 90-100 Southwark Street London, SE1 0SW, United Kingdom		Not Applicable
(Address of principal executive offices)		(Zip code)

 

Omnicom Group Inc.
(Exact name of obligor as specified in its charter)

 

New York		13-1514814
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)
280 Park Avenue New York, NY		10017
(Address of principal executive offices)		(Zip code)

 

 

Debt Securities
(Title of the Indenture securities)

 

 

 

Item 1. General Information.

  

Furnish the following information as to the trustee.

 

(a)

Name and address of each examining or supervising authority to which it is subject.

 

	Name		Address
	Federal Reserve Bank (2nd District)		New York, NY
	Federal Deposit Insurance Corporation		Washington, D.C.
	New York State Banking Department		Albany, NY

 

(b)

Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

Item 2. Affiliations with Obligor.

 

If the obligor is an affiliate of the Trustee, describe each such affiliation.

 

None.

 

Item 3. -15. Not Applicable

 

Item 16. List of Exhibits.

 

	Exhibit 1 -	Restated Organization Certificate of Bankers Trust Company dated August 6, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 16, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 16, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated February 27, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 2 -	Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 3 -	Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 4 -	A copy of existing By-Laws of Deutsche Bank Trust Company Americas, incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 333-271647.
	Exhibit 5 -	Not applicable.
	Exhibit 6 -	Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810.
	Exhibit 7 -	A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
	Exhibit 8 -	Not Applicable.
	Exhibit 9 -	Not Applicable.

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 7th day of October, 2024.

 

	DEUTSCHE BANK TRUST COMPANY AMERICAS
	By:	/s/ Sebastian Hidalgo
	Name:	Sebastian Hidalgo
	Title:	Assistant Vice President

 

Exhibit 7

 

	Board of Governors of the Federal Reserve System	OMB Number 7100-0036
	Federal Deposit Insurance Corporation	OMB Number 3064-0052
	Office of the Comptroller of the Currency	OMB Number 1557-0081
		Approval expires June 30, 2027
		Page 1 of 85

 

Federal Financial Institutions Examination Council

 

Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041

 

The estimated average burden associated with this information collection is 55.56 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.

 

06/2024

FFIEC 041 Page 16 of 85 RC-1

 

Consolidated Report of Condition for Insured Banks and Savings Associations for June 30, 2024

 

All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.

 

Schedule RC—Balance Sheet

	Dollar Amounts in Thousands			RCON	Amount
Assets
1.	Cash and balances due from depository institutions (from Schedule RC-A)
	a. Noninterest-bearing balances and currency and coin(1)			0081	23,000		1.a.
	b. Interest-bearing balances(2)			0071	15,273,000		1.b.
2.	Securities:
	a. Held-to-maturity securities (from Schedule RC-B, column A)(3)			JJ34	0		2.a.
	b. Available-for-sale debt securities (from Schedule RC-B, column D)			1773	376,000		2.b.
	c. Equity securities with readily determinable fair values not held for trading(4)			JA22	0		2.c.
3.	Federal funds sold and securities purchased under agreements to resell:
	a. Federal funds sold			B987	0		3.a.
	b. Securities purchased under agreements to resell(5, 6)			B989	5,921,000		3.b.
4.	Loans and lease financing receivables (from Schedule RC-C):
	a. Loans and leases held for sale			5369	0		4.a.
	b. Loans and leases held for investment	B528	16,614,000				4.b.
	c. LESS: Allowance for credit losses on loans and leases	3123	26,000				4.c.
	d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c)			B529	16,588,000		4.d.
5.	Trading assets (from Schedule RC-D)			3545	0		5.
6.	Premises and fixed assets (includingr ight-of-use assets)			2145	0		6.
7.	Other real estate owned (from Schedule RC-M)			2150	4,000		7.
8.	Investments in unconsolidated subsidiaries and associated companies			2130	0		8.
9.	Direct and indirect investments in real estate ventures			3656	0		9.
10.	Intangible assets (from Schedule RC-M)			2143	1,000		10.
11.	Other assets (from Schedule RC-F)(6)			2160	2,405,000		11.
12.	Total assets (sum of items 1 through 11)			2170	40,591,000		12.
Liabilities
13.	Deposits:
	a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)			2200	27,997,000		13.a.
	(1) Noninterest-bearing(7)	6631	10,665,000				13.a.(1)
	(2) Interest-bearing	6636	17,332,000				13.a.(2)
	b. Not applicable
14.	Federal funds purchased and securities sold under agreements to repurchase:
	a. Federal funds purchased(8)			B993	0		14.a.
	b. Securities sold under agreements to repurchase(9)			B995	0		14.b.
15.	Trading liabilities (from Schedule RC-D)			3548	0		15.
16.	Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M)			3190	0		16.
17.	and 18. Not applicable
19.	Subordinated notes and debentures(10)			3200	0		19.

 

1.	Includes cash items in process of collection and unposted debits.

2.	Includes time certificates of deposit not held for trading.

3.	Institutions should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B.

4.	Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for “Securities Activities” for further detail on accounting for investments in equity securities.

5.	Includes all securities resale agreements, regardless of maturity.

6.	Institutions should report in items 3.b and 11 amounts net of any applicable allowance for credit losses.

7.	Includes noninterest-bearing demand, time, and savings deposits.

8.	Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.”

9.	Includes all securities repurchase agreements, regardless of maturity.

10.	Includes limited-life preferred stock and related surplus.

 

06/2024

 

FFIEC 041 Page 17 of 85 RC-2

 

Schedule RC—Continued

 

	Dollar Amounts in Thousands	RCON	Amount
Liabilities—continued
20.	Other liabilities (from Schedule RC-G)	2930	2,708,000		20.
21.	Total liabilities (sum of items 13 through 20)	2948	30,705,000		21.
22.	Not applicable
Equity Capital
	Bank Equity Capital
23.	Perpetual preferred stock and related surplus	3838	0		23.
24.	Common stock	3230	2,127,000		24.
25.	Surplus (exclude all surplus related to preferred stock)	3839	935,000		25.
26.	a. Retained earnings	3632	6,860,000		26.a.
	b. Accumulated other comprehensive income(1)	B530	(36,000)		26.b.
	c. Other equity capital components(2)	A130	0		26.c.
27.	a. Total bank equity capital (sum of items 23 through 26.c)	3210	9,886,000		27.a.
	b. Noncontrolling (minority) interests in consolidated subsidiaries	3000	0		27.b.
28.	Total equity capital (sum of items 27.a and 27.b)	G105	9,886,000		28.
29.	Total liabilities and equity capital (sum of items 21 and 28)	3300	40,591,000		29.
Memoranda
To be reported with the March Report of Condition.
1.	Indicate in the box at the right the number of the statement below that best describes the most
	comprehensive level of auditing work performed for the bank by independent external auditors as of	RCON	Number
	any date during 2023	6724	NA		M.1.

 

To be reported with the March Report of Condition.		RCON	Date
2.	Bank’s fiscal year-end date (report the date in MMDD format)	8678	NA		M.2.

 

1.	Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments.

2.	Includes treasury stock and unearned Employee Stock Ownership Plan shares.

 

06/2012

Ex-Filing Fees

CALCULATION OF FILING FEE TABLES

S-3

Omnicom Group Inc.

Table 1: Newly Registered and Carry Forward Securities

Line Item Type

Security Type

Security Class Title

Notes

Fee Calculation Rule

Amount Registered

Proposed Maximum Offering Price Per Unit

Maximum Aggregate Offering Price

Fee Rate

Amount of Registration Fee

Newly Registered Securities

Fees to be Paid

Debt

Debt Securities of Omnicom Group Inc.

(1)

457(r)

$

$

0.0001531

$

Fees to be Paid

Equity

Common Stock of Omnicom Group Inc., par value $0.15 per share

(2)

457(r)

0.0001531

Fees to be Paid

Equity

Preferred Stock of Omnicom Group Inc., par value $1.00 per share

(3)

457(r)

0.0001531

Fees to be Paid

Debt

Guarantees of Debt Securities by Omnicom Group Inc. of Omnicom Finance Holdings plc and Omnicom Capital Holdings plc

(4)

Other

0.0001531

0.00

Fees to be Paid

Other

Subscription Rights of Omnicom Group Inc.

(5)

457(r)

0.0001531

Fees to be Paid

Other

Warrants of Omnicom Group Inc.

(6)

457(r)

0.0001531

Fees to be Paid

Debt

Debt Securities of Omnicom Finance Holdings plc

(7)

457(r)

0.0001531

Fees to be Paid

Debt

Debt Securities of Omnicom Capital Holdings plc

(8)

457(r)

$

$

0.0001531

$

Total Offering Amounts:

$

0.00

0.00

Total Fees Previously Paid:

Total Fee Offsets:

0.00

Net Fee Due:

$

0.00

 

__________________________________________
Offering Note(s)

(1)

(a) An indeterminate aggregate initial offering price and number of securities of each identified class is being registered as may from time to time be offered, issued or sold at indeterminate prices. In addition, an indeterminate number of securities that may be issued upon exercise, settlement, conversion or exchange of any offered securities, or pursuant to anti-dilution adjustments, is being registered. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. (b) Pursuant to Rules 456(b) and 457(r) under the Securities Act of 1933 (the “Securities Act”), the registrants are deferring payment of the entire registration fee. Registration fees will be paid subsequently on a “pay-as-you-go” basis.

(2)

See footnotes (1)(a) and (1)(b)

(3)

See footnotes (1)(a) and (1)(b)

(4)

See footnote (1)(a) Pursuant to Rule 457(n) under the Securities Act, no additional registration fee is due for the guarantees

(5)

See footnotes (1)(a) and (1)(b)

(6)

See footnotes (1)(a) and (1)(b)

(7)

See footnotes (1)(a) and (1)(b)

(8)

See footnotes (1)(a) and (1)(b)

v3.24.3

Submission	Oct. 21, 2024
Submission [Line Items]
Central Index Key	0000029989
Registrant Name	Omnicom Group Inc.
Form Type	S-3
Submission Type	S-3ASR
Fee Exhibit Type	EX-FILING FEES

v3.24.3

Offerings	Oct. 21, 2024 USD ($)
Offering: 1
Offering:
Fee Previously Paid	false
Rule 457(r)	true
Security Type	Debt
Security Class Title	Debt Securities of Omnicom Group Inc.
Fee Rate	0.01531%
Offering Note	(a) An indeterminate aggregate initial offering price and number of securities of each identified class is being registered as may from time to time be offered, issued or sold at indeterminate prices. In addition, an indeterminate number of securities that may be issued upon exercise, settlement, conversion or exchange of any offered securities, or pursuant to anti-dilution adjustments, is being registered. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. (b) Pursuant to Rules 456(b) and 457(r) under the Securities Act of 1933 (the “Securities Act”), the registrants are deferring payment of the entire registration fee. Registration fees will be paid subsequently on a “pay-as-you-go” basis.
Offering: 2
Offering:
Fee Previously Paid	false
Rule 457(r)	true
Security Type	Equity
Security Class Title	Common Stock of Omnicom Group Inc., par value $0.15 per share
Fee Rate	0.01531%
Offering Note	See footnotes (1)(a) and (1)(b)
Offering: 3
Offering:
Fee Previously Paid	false
Rule 457(r)	true
Security Type	Equity
Security Class Title	Preferred Stock of Omnicom Group Inc., par value $1.00 per share
Fee Rate	0.01531%
Offering Note	See footnotes (1)(a) and (1)(b)
Offering: 4
Offering:
Fee Previously Paid	false
Other Rule	true
Security Type	Debt
Security Class Title	Guarantees of Debt Securities by Omnicom Group Inc. of Omnicom Finance Holdings plc and Omnicom Capital Holdings plc
Fee Rate	0.01531%
Amount of Registration Fee	$ 0.00
Offering Note	See footnote (1)(a) Pursuant to Rule 457(n) under the Securities Act, no additional registration fee is due for the guarantees
Offering: 5
Offering:
Fee Previously Paid	false
Rule 457(r)	true
Security Type	Other
Security Class Title	Subscription Rights of Omnicom Group Inc.
Fee Rate	0.01531%
Offering Note	See footnotes (1)(a) and (1)(b)
Offering: 6
Offering:
Fee Previously Paid	false
Rule 457(r)	true
Security Type	Other
Security Class Title	Warrants of Omnicom Group Inc.
Fee Rate	0.01531%
Offering Note	See footnotes (1)(a) and (1)(b)
Offering: 7
Offering:
Fee Previously Paid	false
Rule 457(r)	true
Security Type	Debt
Security Class Title	Debt Securities of Omnicom Finance Holdings plc
Fee Rate	0.01531%
Offering Note	See footnotes (1)(a) and (1)(b)
Offering: 8
Offering:
Fee Previously Paid	false
Rule 457(r)	true
Security Type	Debt
Security Class Title	Debt Securities of Omnicom Capital Holdings plc
Fee Rate	0.01531%
Offering Note	See footnotes (1)(a) and (1)(b)

v3.24.3

Fees Summary	Oct. 21, 2024 USD ($)
Fees Summary [Line Items]
Total Offering	$ 0.00
Total Fee Amount	0.00
Total Offset Amount	0.00
Net Fee	$ 0.00

---