As filed with the Securities and Exchange Commission on March 7, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Amer Sports, Inc.
(Exact name of Registrant as specified in its charter)
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Cayman Islands
(State or Other Jurisdiction of
Incorporation or Organization)
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Not Applicable
(I.R.S. Employer Identification Number)
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Cricket Square, Hutchins Drive,
P.O. Box 2681,
Grand Cayman, KY1-1111,
Cayman Islands
+1 345 945 3901
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Amer Sports Company
One Prudential Plaza
130 East Randolph Street #600
Chicago, IL 60601
+1 773 714-6400
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copy to:
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Michael Kaplan
Li He
Roshni Banker Cariello
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
+1 212 450-4000
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Jutta Karlsson
General Counsel
Siltasaarenkatu 8-10
FI-00530 Helsinki
Finland
+358(0)20 712 2500
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Approximate date of commencement of proposed sale to the public: From time to time after the effectiveness of this registration statement.
If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act 1933. Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards † provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
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The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standard Codification after April 5, 2012.
PROSPECTUS
Amer Sports, Inc.
Ordinary Shares
Debt Securities
We or any selling security holder, as applicable, may offer and sell from time to time, in one or more offerings, the securities covered by this prospectus. We or any selling security holder may offer and sell the applicable securities at times, in amounts, at prices and on terms to be determined at or prior to the time of each offering.
This prospectus describes the general terms that apply to the securities and the general manner in which the securities will be offered. We will provide the specific terms of the securities, the specific manner in which these securities will be offered and sold and, if applicable, information about any selling security holder in supplements to this prospectus. The prospectus supplements and any related free writing prospectus may also add, update or change the information contained in this prospectus. You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the documents we incorporate by reference herein and therein, carefully before you invest.
The securities covered by this prospectus may be offered through one or more underwriters, dealers and agents, or directly to purchasers or through a combination of such methods. Supplements to this prospectus will set forth the names of the underwriters, dealers or agents, if any, any applicable commissions or discounts payable to them and the specific terms of the plan of distribution. For general information about the distribution of securities offered, see “Plan of Distribution” beginning on page 16 of this prospectus. Our ordinary shares are listed on the New York Stock Exchange under the symbol “AS”.
Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Investing in our securities involves risks. See “Risk Factors” beginning on page 4 of this prospectus, under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the documents that are incorporated by reference herein and therein.
The date of this prospectus is March 7, 2025.
TABLE OF CONTENTS
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Neither we nor any selling security holders, underwriters, dealers or agents have authorized anyone to provide any information or to make any representations other than that contained in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we may have referred you. Neither we nor any selling security holders, underwriters, dealers or agents take responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. Neither we nor any selling security holders, underwriters, dealers or agents have authorized any other person to provide you with different or additional information. Neither we nor any selling security holders, underwriters, dealers or agents are making an offer to sell the securities in any jurisdiction where the offer or sale is not permitted. This offering is being made in the United States and elsewhere solely on the basis of the information contained in this prospectus. You should assume that the information appearing in this prospectus is accurate only as of the date on the front cover of this prospectus, regardless of the time of delivery of this prospectus or any sale of the securities. Our business, financial condition, results of operations and prospects may have changed since the date on the front cover of this prospectus.
For investors outside the United States: Neither we nor any selling security holders, underwriters, dealers or agents have done anything that would permit this offering or the possession or distribution of this prospectus in any jurisdiction where action for those purposes is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, this offering of securities and the distribution of this prospectus outside the United States.
We are a company incorporated under the laws of the Cayman Islands. Under the rules of the U.S. Securities and Exchange Commission (the “SEC”) we are currently eligible for treatment as a “foreign private issuer.” As a foreign private issuer, we will not be required to file periodic reports and financial statements with the SEC as frequently or as promptly as domestic registrants whose securities are registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Moreover, a number of our directors and executive officers are not residents of the United States, and all or a substantial portion of the assets of such persons are located outside the United States. As a result, it may not be possible for investors to effect service of process within the United States upon us or upon such persons or to enforce against them judgments obtained in U.S. courts, including judgments in actions predicated upon the civil liability provisions of the federal securities laws of the United States.
PRESENTATION OF FINANCIAL AND OTHER INFORMATION
Certain Definitions
Unless otherwise indicated or the context otherwise requires, all references in this prospectus to “Amer Sports, Inc.,” the “Company,” “we,” “our,” “ours,” “us” or similar terms refer to Amer Sports, Inc., together with its subsidiaries. All references to “U.S. dollars,” “dollars” or “$” are to the U.S. dollar and all references to “EUR” or “€” are to the euro and all references to “CNY” are to the Chinese yuan. Unless otherwise indicated or the context otherwise requires, all references to “Americas” refers to United States, Canada, and certain other countries in Latin America, “EMEA” refers to Europe, the Middle East and Africa, “Greater China” refers to mainland China, Hong Kong, Macau and Taiwan and “Asia Pacific” excludes Greater China.
Financial Statements
Unless otherwise indicated, all financial information contained or incorporated by reference in this prospectus is prepared and presented in accordance with IFRS Accounting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”). Certain differences exist between IFRS and generally accepted accounting principles in the United States of America (“U.S. GAAP”) which might be material to the financial information herein. We have not prepared a reconciliation of our consolidated financial statements and related footnote disclosures between IFRS and U.S. GAAP. Potential investors should consult their own professional advisers for an understanding of the differences between IFRS and U.S. GAAP and how these differences might affect the financial information herein. Our fiscal year ends on December 31 of each year.
Non-IFRS Financial Measures
Management uses certain non-IFRS financial measures to supplement the financial measures prepared in accordance with IFRS, which include constant currency revenue, EBITDA, Adjusted EBITDA, Adjusted EBITDA Margin and Adjusted net income/(loss) attributable to equity holders. We use constant currency revenue information to provide a framework to assess how our business segments performed excluding the effects of foreign currency exchange rate fluctuations. Management believes that EBITDA, Adjusted EBITDA and Adjusted EBITDA Margin enhance an investor’s understanding of our financial and operating performance from period to period, because they exclude certain material items relating to income tax expense, finance costs and depreciation and amortization which are not reflective of our ongoing operations and performance. Management believes Adjusted net income/(loss) attributable to equity holders enhances an investor’s understanding of our financial and operating performance because it excludes certain material items relating to discontinued operations and impairment losses on goodwill and intangible assets which are not reflective of our ongoing operations and performance. In addition, management believes constant currency revenue, EBITDA, Adjusted EBITDA, Adjusted EBITDA Margin and Adjusted net income/(loss) attributable to equity holders are measures commonly used by investors to evaluate companies in the apparel, footwear, sports equipment, protective gear and accessories industries.
However, there are limitations to the use of these non-IFRS financial measures as analytical tools and they should not be considered in isolation or as a substitute for other financial measures calculated and presented in accordance with IFRS and may not be comparable to similarly titled non-IFRS measures used by other companies. Constant currency revenue is limited as a metric to review the Company’s financial results as it does not reflect impacts of foreign currency on revenue. Some of the limitations of EBITDA, Adjusted EBITDA and Adjusted EBITDA Margin include: excluding certain tax payments that may reduce cash available to us; not reflecting any cash capital expenditure requirements for the assets being depreciated and amortized that may have to be replaced in the future; not reflecting changes in, or cash requirements for, our working capital needs; and not reflecting the interest expense, or the cash requirements necessary to service interest or principal payments, on our debt. Some of the limitations of Adjusted net income/(loss) attributable to equity holders include: excluding the impact of restructuring expenses, expenses related to transaction activities and expenses related to certain legal proceedings.
Rounding
We have made rounding adjustments to some of the figures included in this prospectus. Accordingly, numerical figures shown as totals in some tables may not be an arithmetic aggregation of the figures that preceded them. With respect to financial information set out in this prospectus, a dash (“—”) signifies that the relevant figure is not available or not applicable, while a zero (“0.0”) signifies that the relevant figure is available but is or has been rounded to zero.
Market and Industry Data
Market data and certain industry forecast data used in this prospectus were obtained from internal reports, where appropriate, as well as third-party sources, including independent industry publications, as well as other publicly available information. Data regarding the industries in which we compete and our market position and market share within these industries are inherently imprecise and are subject to significant business, economic and competitive uncertainties beyond our control, but we believe they generally indicate size, position and market share. In addition, assumptions and estimates of our and our industries’ future performance are necessarily subject to a high degree of uncertainty and risk due to a variety of factors. These and other factors could cause our future performance to differ materially from our assumptions and estimates. As a result, you should be aware that market, ranking and other similar industry data included in this prospectus, and estimates and beliefs based on that data, may not be reliable. See “Cautionary Statement Regarding Forward-Looking Statements.”
Trademarks and Trade Names
We own various trademark registrations and applications, and unregistered trademarks, including Arc’teryx, Salomon, Wilson, Peak Performance, Atomic, Armada, Louisville Slugger, DeMarini, EvoShield and ATEC, among others, and our other registered and common law trade names, trademarks and service marks, including our corporate logo. Solely for convenience, some of the trademarks, service marks and trade names referred to in this prospectus are listed without the ® and ™ symbols, but we will assert, to the fullest extent under applicable law, rights to such trademarks, service marks and trade names.
SUMMARY
This summary does not contain all of the information you should consider before investing in our securities. You should read this entire prospectus carefully, including the information incorporated by reference in this prospectus and any free writing prospectus prepared by us or on our behalf, including in particular the section titled “Risk Factors” in this prospectus, “Item 3. Key Information,” “Item 5. Operating and Financial Review and Prospects” and “Item 8. Financial Information” in our Annual Report on Form 20-F for the year ended December 31, 2024, as filed with the SEC on March 7, 2025 (our “Annual Report on Form 20-F”), the other sections of the documents incorporated by reference in this prospectus and the financial statements and the related notes incorporated by reference in this prospectus, before making an investment in our securities.
Our Purpose
Elevating the world through sport — from courts to slopes, from cities to mountains, and everywhere in between, we aim to inspire people to explore and experience the joy of sports and outdoor activities, and lead better, healthier lives. Our vision is to be the global leader in premium sports and outdoor brands.
Company Overview
Amer Sports is a global group of iconic sports and outdoor brands, including Arc’teryx, Salomon, Wilson, Atomic and Peak Performance. Our brands are known for their detailed craftsmanship, unwavering authenticity, premium market positioning and compelling market shares in their categories. We pride ourselves on cutting-edge innovation, technical performance and ground-breaking designs that allow athletes and everyday consumers to perform better every day. Through partnerships with industry influencers and elite athletes, and in collaboration with the various communities we serve, we develop next-generation products that define winning moments in sports. Our brands are creators of exceptional apparel, footwear, equipment, protective gear and accessories that we believe give our consumers the confidence and comfort to excel.
Our brands are our stars, constantly elevating the consumer experience and creating thriving communities. We empower our brands to pursue market-shaping leadership and set the standard for quality, performance and brand experience globally. While our brands have established heritage and market leadership today, significant runway remains ahead. We are excited about our future and the opportunity to drive growth in each of our three reportable segments: Technical Apparel, Outdoor Performance and Ball & Racquet Sports. Our segments comprise our “brand clusters,” which reflect both how our consumers engage with our products and how we manage our business.
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Technical Apparel
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Outdoor Performance
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Ball & Racquet Sports
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Each segment is led by one of our core brands: Arc’teryx, Salomon and Wilson. Each of these brands creates high-quality technical products that stand out in their respective categories, and possesses key differentiated attributes.
Arc’teryx
Arc’teryx is a technical outdoor apparel brand inspired by the Canadian Coast Mountains and built on the principle of obsessive, precise design and production. Arc’teryx gear pushes the boundaries of performance and enables adventurers to excel in their outdoor pursuits in the mountains, in the backcountry and on some of the world’s most technical climbs. The products are known for their minimalist design and sleek and streamlined aesthetic, along with new, innovative features that continually advance outdoor activities.
Product quality, from the materials to the design, allows Arc’teryx to command premium pricing as evidenced by its best-selling “hardshell” jacket in North America, the Alpha SV. Overall, Arc’teryx combines beautiful, innovative products and an authentic brand experience that extends beyond apparel, fostering communities and bringing people together across all regions of the world who share a passion for the outdoors.
Salomon
Born in the French Alps in 1947, Salomon creates premium innovative footwear, apparel, winter sports equipment and accessories. Since its founding, Salomon has been fueled by a culture of design, craftsmanship, continuous innovation, and performance inspired by progress, the mountains and athletes. The brand first produced metal ski edges and expanded into releasable ski bindings before launching industry changing rear-entry ski boots and monocoque skis. The brand’s leadership in winter sports helped to propel it into a diverse portfolio of sports and products including footwear and apparel. Today, Salomon is a market leader in global trail running footwear and premium hiking footwear, with products recognized for their performance, style, durability and sustainability. Over 68% of Salomon’s revenue in 2024 came from footwear, while also having leading market positions in its legacy winter sports equipment categories (skis, snowboards, boots, bindings, goggles, helmets, etc.), creating a 365-day, year-round brand serving all seasons for mountain sport consumers.
Wilson Sporting Goods
Founded in 1914 in Chicago, Illinois, Wilson Sporting Goods is a leading manufacturer of high-performance sports equipment, apparel, footwear and accessories. The Wilson Sporting Goods portfolio is made up of the iconic Wilson brand, as well as Louisville Slugger, DeMarini, EvoShield and ATEC. Collectively, these brands bring more than three centuries of innovation, history and heritage to a variety of mainstream sports. As a multi-sports platform, Wilson drives innovation and product excellence by leveraging learnings across the brands’ various disciplines, including tennis, football, baseball and basketball, among other sports. The Wilson brand has a legacy as the top-of-the-line sports equipment and is associated with legendary athletes, including Roger Federer, Caitlin Clark and Jamal Murray. In addition, Wilson is the official partner of professional sports leagues, including the NBA, WNBA, NFL, the US Open, Roland Garros, and more. These athletes and leagues are a testament to the credibility and reputation of Wilson’s track record of innovation and superior products.
While Arc’teryx, Salomon and Wilson stand tall and lead our three segments, our other brands appropriately fit our sports-oriented portfolio. Brands such as Atomic and Peak Performance enhance our scale, competitive positioning and diversification across sports categories. Together, our brands enable us to lead and compete in various sports segments and drive the continued success of our portfolio.
The Amer Sports Group
We excel at identifying, developing and defining brands that meet our corporate vision. We empower these brands to autonomously connect with consumers and develop products to drive growth. Our platform supports the brands via scaled infrastructure and financial controls to accelerate performance. We believe that the size and diversification of our platform mitigates risks and provides financial flexibility to invest prudently to meet the continuously evolving needs of consumers, to develop competitive advantages and to drive growth across the brands through a relentless focus on innovation. We also believe that our platform enables efficient integration, scaling and optimization of target opportunities that fit within our portfolio, as well as critical insight to inform divestiture decisions.
We govern our brands through management across the finance, supply chain, sustainability, communications, legal and compliance functions, among other areas. At the same time, we enable our brands through our group’s incubator model that provides shared learnings from data analytics across the platform as well as from the economies of scale and synergies of shared resources, including supplier services, distribution and logistics, human resources and enterprise IT infrastructure. We further serve our brands through access to shared, centralized business services, including customer service and treasury management functions. Together, these resources empower our brand leadership teams to focus on serving consumers through brand, product and go-to-market strategies that drive performance, and our global and scaled operating model enables larger, robust brand organizations to independently flourish.
Corporate Information
We were incorporated as Amer Sports Management Holding (Cayman) Limited in the Cayman Islands as an exempted company with limited liability on January 3, 2020. On August 4, 2023, we changed our name to Amer Sports, Inc. Our registered offices are located at Cricket Square, Hutchins Drive, P.O. Box 2681, Grand Cayman, KY1-1111, Cayman Islands. Our telephone number at this address is +1 345 945 3901. Our corporate offices are located at Siltasaarenkatu 8-10, FI-00530 Helsinki, Finland. Our telephone number at this address is +358 (0)20 712 2500. Investors should contact us for any inquiries through the address and telephone number of our corporate offices. Our principal website is www.amersports.com. The information on, or accessible through, our website is not a part of, and is not incorporated into, this prospectus. We have included our website address only as an inactive textual reference and do not intend it to be an active link to our website.
RISK FACTORS
An investment in our securities involves a high degree of risk. You should carefully consider the risks and uncertainties described under “Risk Factors” in the applicable prospectus supplement and the other information included in this prospectus and applicable prospectus supplement, as well as the section “Item 3. Key Information — D. Risk Factors” in our then most recent Annual Report on Form 20-F, and any updates to those risk factors in our reports on Form 6-K incorporated by reference in the prospectus, before making an investment decision. Our business, prospects, financial condition, or operating results could be harmed by any of these risks, as well as other risks not currently known to us or that we currently consider immaterial. The trading price of our securities could decline due to any of these risks, and, as a result, you may lose all or part of your investment. See also “Cautionary Statement Regarding Forward-Looking Statements.”
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains statements that constitute forward-looking statements. Many of the forward-looking statements contained in this prospectus can be identified by the use of forward-looking words such as “anticipate,” “believe,” “may,” “will,” “expect,” “could,” “target,” “predict,” “potential,” “should,” “plan,” “intend,” “estimate,” and similar expressions, although the absence of these words does not mean that a statement is not forward looking.
Forward-looking statements appear in a number of places in this prospectus and include, but are not limited to, statements regarding our intent, belief or current expectations. These forward-looking statements are based on our management’s beliefs and assumptions and on information currently available to our management. They are not statements of historical fact. Such statements are subject to risks and uncertainties, and actual results may differ materially from those expressed or implied in the forward-looking statements due to various factors, including, but not limited to, those identified under the section titled “Risk Factors” in this prospectus. These risks and uncertainties include factors relating to, but are not limited to:
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the strength of our brands;
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changes in market trends and consumer preferences;
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intense competition that our products, services and experiences face;
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harm to our reputation that could adversely impact our ability to attract and retain consumers and wholesale partners, employees, brand ambassadors, partners, and other stakeholders;
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reliance on technical innovation and high-quality products;
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general economic and business conditions worldwide, including due to inflationary pressures;
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the strength of our relationships with and the financial condition of our third-party suppliers, manufacturers, wholesale partners and consumers;
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ability to expand our DTC channel, including the expansion and success of our retail stores and e-commerce platform;
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our plans to innovate, expand our product offerings and successfully implement our growth strategies that may not be successful, and implementation of these plans that may divert our operational, managerial and administrative resources;
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our international operations, including any related to political uncertainty and geopolitical tensions;
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our and our wholesale partners’ ability to accurately forecast demand for our products and our ability to manage manufacturing decisions;
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our third-party suppliers, manufacturers and other partners, including their financial stability and our ability to find suitable partners to implement our growth strategy;
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the cost of raw materials and our reliance on third-party manufacturers;
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our distribution system and ability to deliver our brands’ products to our wholesale partners and consumers;
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climate change and sustainability related matters, or legal, regulatory or market responses thereto;
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changes and contemplation of changes to trade policies, tariffs, import/export regulations and anti-competition regulations in the United States, European Union (“EU”), Peoples Republic of China (“PRC”) and other jurisdictions, or our failure to comply with such regulations;
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the use and reliance on artificial intelligence can potentially cause intellectual property rights issues, security vulnerabilities, harm our business reputation, negatively impact our operations and impact our financial results;
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ability to obtain approvals from PRC authorities to remain listed on the U.S. exchanges and offer securities in the future;
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ability to obtain, maintain, protect and enforce our intellectual property rights in our brands, designs, technologies and proprietary information and processes;
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ability to defend against claims of intellectual property infringement, misappropriation, dilution or other violations made by third parties against us;
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security breaches or other disruptions to our information technology (“IT”) systems;
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our reliance on a large number of complex IT systems;
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changes in government regulation and tax matters;
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our ability to remediate our material weakness in our internal control over financial reporting;
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our relationship with ANTA Sports Products Limited (“ANTA Sports”);
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our expectations regarding the time during which we will be a foreign private issuer; and
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other risk factors discussed under “Risk Factors” in this prospectus and in the Annual Report on Form 20-F incorporated by reference herein.
Forward-looking statements speak only as of the date they are made, and we do not undertake any obligation to update them in light of new information or future developments or to release publicly any revisions to these statements in order to reflect later events or circumstances or to reflect the occurrence of an unanticipated event.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the principal purpose of an offering would be to increase our capitalization and financial flexibility and the net proceeds from our sale of the securities will be used for general corporate purposes and other business opportunities. Unless otherwise indicated in a prospectus supplement, we will not receive any proceeds from an offering of securities by a selling security holder.
DIVIDEND POLICY
We have never declared nor paid any cash dividends on our ordinary shares. Our second amended and restated memorandum and articles of association permits us to pay dividends. We currently intend to retain all available funds and any future earnings to fund the development and expansion of our business, and we do not anticipate paying any cash dividends but our board of directors may choose to do so at any point if it is in the best interests of the Company and our security holders. Any future determination regarding the declaration and payment of dividends, if any, will be at the discretion of our board of directors subject to applicable laws, and will depend on then-existing conditions, including our financial condition, results of operation, contractual restrictions, capital requirements, business prospects and other factors our board of directors may deem relevant. Our existing indebtedness restricts our ability to make distributions, including dividends, subject to certain exceptions. See “Item 5. Operating and Financial Review and Prospects — Indebtedness” in our Annual Report on Form 20-F incorporated by reference herein.
DESCRIPTION OF SHARE CAPITAL
The following description of our share capital is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to our second amended and restated memorandum and articles of association, which is filed as an exhibit to the Annual Report on Form 20-F of which this exhibit is a part. We encourage you to read the second amended and restated memorandum and articles of association for additional information.
General
We are a Cayman Islands exempted company and our affairs are governed by our second amended and restated memorandum and articles of association, as amended from time to time, and the Companies Act, and the common law of Cayman Islands. We were incorporated under the name of “Amer Sports Management Holding (Cayman) Limited” in the Cayman Islands as an exempted company with limited liability on January 3, 2020. On August 4, 2023, we changed our name to Amer Sports, Inc.
Our ordinary shares are listed on the NYSE under the symbol “AS.”
The following is a summary of the material provisions of our share capital and our articles of association.
Share Capital
As of February 1, 2025, we had issued and outstanding 553,845,331 ordinary shares, par value EUR 0.0300580119630888 per ordinary share.
Memorandum and Articles of Association
When we refer to our articles of association in this Form F-3, we refer to our second amended and restated memorandum and articles of association conditionally adopted on January 3, 2024 and in effect from February 5, 2024.
Objects of Our Company. Under our second amended and restated memorandum and articles of association, the objects of our company are unrestricted, and we are capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit, as provided by section 27(2) of the Companies Act.
Ordinary Shares. Our ordinary shares are issued in registered form and are issued when registered in our register of members. We may not issue shares to bearer. Our shareholders who are non-residents of the Cayman Islands may freely hold and vote their shares.
Dividends. The holders of our ordinary shares are entitled to such dividends as may be declared by our board of directors. Our second amended and restated memorandum and articles of association provide that dividends may be declared and paid out of the funds of our company lawfully available therefor. Under the laws of the Cayman Islands, our company may pay a dividend out of either profit or share premium account; provided that in no circumstances may a dividend be paid out of our share premium if this would result in our company being unable to pay its debts as they fall due in the ordinary course of business.
Voting Rights. Voting at any meeting of shareholders is by way of a poll save that in the case of a physical meeting, the chairman of the meeting may decide that a vote be on a show of hands unless a poll is demanded by:
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at least three shareholders present in person or by proxy or (in the case of a shareholder being a corporation) by its duly authorized representative for the time being entitled to vote at the meeting;
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shareholder(s) present in person or by proxy or (in the case of a shareholder being a corporation) by its duly authorized representative representing not less than one-tenth of the total voting rights of all shareholders having the right to vote at the meeting; or
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shareholder(s) present in person or by proxy or (in the case of a shareholder being a corporation) by its duly authorized representative and holding ordinary shares in us conferring a right to vote at
the meeting being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all shares conferring that right.
An ordinary resolution to be passed at a meeting by the shareholders requires the affirmative vote of a simple majority of the votes attaching to the ordinary shares cast at a meeting, while a special resolution requires the affirmative vote of no less than two-thirds of the votes cast attaching to the issued and outstanding ordinary shares at a meeting. A special resolution will be required for important matters such as a change of name, making changes to our second amended and restated memorandum and articles of association, a reduction of our share capital and a voluntary winding up of our company (unless our company is unable to pay its debts in which case such voluntary winding up can be authorized by an ordinary resolution). Our shareholders may, among other things, divide or combine their shares by ordinary resolution.
Shareholder Nomination Rights. Each of ANTA Sports and Anamered Investments Inc. (“Anamered”) has the right to nominate a number of candidates to serve as directors on our board of directors, to be designated by such shareholder.
For so long as ANTA Sports and its affiliates together continue to beneficially hold (i) at least 30% of our then issued and outstanding ordinary shares, it shall have the right to nominate a total of five directors (the “ANTA Directors”); (ii) at least 25% (but less than 30%) of our then issued and outstanding ordinary shares, it shall have the right to nominate a total of four ANTA Directors; (iii) at least 20% (but less than 25%) of our then issued and outstanding ordinary shares, it shall have the right to nominate a total of three ANTA Directors; (iv) at least 15% (but less than 20%) of our then issued and outstanding ordinary shares, it shall have the right to nominate a total of two ANTA Directors; and (v) at least 10% (but less than 15%) of our then issued and outstanding ordinary shares, it shall have the right to nominate a total of one ANTA Director. At the time ANTA Sports and its affiliates together beneficially hold less than 10% of our then issued and outstanding ordinary shares, it shall no longer have the right to nominate for election any ANTA Directors.
For so long as Anamered and its affiliates together continue to beneficially hold at least 10% of our then issued and outstanding ordinary shares, it shall have the right to nominate a total of one director (the “Anamered Director”). At the time Anamered and its affiliates together beneficially hold less than 10% of our then issued and outstanding ordinary shares, it shall no longer have the right to nominate for election any Anamered Directors.
Quorum for Meetings of the Board of Directors. A quorum for any meeting of the board of directors consists of, at the time when the meeting proceeds to business, a majority of the directors then in office, including at least (i) three ANTA Directors for so long as ANTA Sports has the right to nominate at least four ANTA Directors; (ii) two ANTA Directors for so long as ANTA Sports has the right to nominate three ANTA Directors; and (iii) one ANTA Director for so long as ANTA Sports has the right to nominate two ANTA Directors. At the time ANTA Sports has the right to nominate one or fewer directors, no ANTA Directors shall be required to meet a quorum for meetings of the board of directors.
General Meetings of Shareholders. As a Cayman Islands exempted company, we are not obliged by the Companies Act to call shareholders’ annual general meetings. Our second amended and restated memorandum and articles of association provide that we shall, if required by the Companies Act, in each year hold a general meeting as our annual general meeting, and shall specify the meeting as such in the notices calling it, and the annual general meeting shall be held at such time and place as may be determined by our directors. All general meetings (including an annual general meeting, any adjourned general meeting or postponed meeting) may be held as a physical meeting at such times and in any part of the world and at one or more locations, as a hybrid meeting or as an electronic meeting, as may be determined by our board of directors in its absolute discretion.
Shareholders’ general meetings may be convened by the chairperson of our board of directors or by a majority of our board of directors. Advance notice of not less than ten clear days is required for the convening of our annual general shareholders’ meeting (if any) and any other general meeting of our shareholders. No business other than the appointment of a chairman of the meeting shall be transacted at any general meeting unless a quorum is present at the commencement of the business. A quorum required for any general meeting of shareholders consists of shareholders holding ordinary shares which carry in aggregate (or
representing by proxy) not less than one-third of all issued and outstanding ordinary shares entitled to vote throughout such general meeting.
The Companies Act does not provide shareholders with any right to requisition a general meeting or to put any proposal before a general meeting. However, these rights may be provided in a company’s memorandum and articles of association. Our second amended and restated memorandum and articles of association provides that upon the requisition of any one or more of our shareholders holding ordinary shares which carry in aggregate not less than one-third of all issued and outstanding ordinary shares entitled to vote at general meetings, our board will convene an extraordinary general meeting and put the resolutions so requisitioned to a vote at such meeting within two months after the deposit of such requisition. If within twenty-one days of such deposit, our board fails to proceed to convene such meeting, the requisitionist(s) may do so in the same manner, and all reasonable expenses incurred by the requisitionist(s) as a result of the failure of our board to convene such meeting shall be reimbursed by the Company.
Shareholder Proposals. Shareholder proposals to be considered and voted on by our shareholders at a general meeting may be submitted only by any one or more shareholders holding not less than one-third of all issued and outstanding ordinary shares entitled to vote at such meeting.
Transfer of Ordinary Shares. Any of our shareholders may transfer all or any of his or her ordinary shares by an instrument of transfer in the usual or common form or in a form prescribed by the relevant stock exchange or any other form approved by our board of directors. Notwithstanding the foregoing, ordinary shares may also be transferred in accordance with the applicable rules and regulations of the relevant stock exchange.
Our board of directors may, in its absolute discretion, decline to register any transfer of any ordinary share which is not fully paid up or on which we have a lien. Our board of directors may also decline to register any transfer of any ordinary share unless:
•
the instrument of transfer is lodged with us, accompanied by the certificate for the ordinary shares to which it relates and such other evidence as our board of directors may reasonably require to show the right of the transferor to make the transfer;
•
the instrument of transfer is in respect of only one class of ordinary shares;
•
the instrument of transfer is properly stamped, if required;
•
in the case of a transfer to joint holders, the number of joint holders to whom the ordinary share is to be transferred does not exceed four; and
•
a fee of such maximum sum as the relevant stock exchange may determine to be payable or such lesser sum as our directors may from time to time require is paid to us in respect thereof.
If our directors refuse to register a transfer they shall, within two months after the date on which the instrument of transfer was lodged, send to each of the transferor and the transferee notice of such refusal.
The registration of transfers may, after compliance with any notice required in accordance with the rules of the relevant stock exchange, be suspended and the register closed at such times and for such periods as our board of directors may from time to time determine; provided, however, that the registration of transfers shall not be suspended nor the register closed for more than 30 days in any year as our board may determine, subject to extension for a further period or periods not exceeding 30 days if approved by the shareholders.
Liquidation. On the winding up of our company, if the assets available for distribution amongst our shareholders shall be more than sufficient to repay the whole of the share capital at the commencement of the winding up, the surplus shall be distributed amongst our shareholders in proportion to the par value of the ordinary shares held by them at the commencement of the winding up, subject to a deduction from those ordinary shares in respect of which there are monies due, of all monies payable to our company for unpaid calls or otherwise. If our assets available for distribution are insufficient to repay all of the paid-up capital, such the assets will be distributed so that, as nearly as may be, the losses are borne by our shareholders in proportion to the par value of the ordinary shares held by them.
Calls on Ordinary Shares and Forfeiture of Ordinary Shares. Our board of directors may from time to time make calls upon shareholders for any amounts unpaid on their ordinary shares in a notice served to such shareholders at least 14 days prior to the specified time and place of payment. The ordinary shares that have been called upon and remain unpaid are subject to forfeiture.
Redemption, Repurchase and Surrender of Ordinary Shares. We may issue ordinary shares on terms that such ordinary shares are subject to redemption, at our option or at the option of the holders of these ordinary shares, on such terms and in such manner as may be determined by our board of directors. Our company may also repurchase any of our ordinary shares on such terms and in such manner as have been approved by our board of directors. Under the Companies Act, the redemption or repurchase of any share may be paid out of our company’s profits, share premium account or out of the proceeds of a new issue of shares made for the purpose of such redemption or repurchase, or out of capital if our company can, immediately following such payment, pay its debts as they fall due in the ordinary course of business. In addition, under the Companies Act, no such share may be redeemed or repurchased (a) unless it is fully paid up, (b) if such redemption or repurchase would result in there being no shares outstanding or (c) if the company has commenced liquidation. In addition, our company may accept the surrender of any fully paid share for no consideration.
Variations of Rights of Shares. Whenever the capital of our company is divided into different classes the rights attached to any such class may, subject to any rights or restrictions for the time being attached to any class, only be varied with the sanction of a resolution passed by a majority of two-thirds of the votes cast at a separate meeting of the holders of the shares of that class. The rights conferred upon the holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation, allotment or issue of further shares ranking pari passu with such existing class of shares.
Issuance of Additional Ordinary Shares. Our second amended and restated memorandum and articles of association authorizes our board of directors to issue additional ordinary shares from time to time as our board of directors shall determine, to the extent of available authorized but unissued shares. Since completion of our IPO, our authorized share capital is EUR 75,000,000 divided into 2,495,175,000 shares of a par value of EUR 0.0300580119630888 each.
Our second amended and restated memorandum and articles of association also authorizes our board of directors to establish from time to time one or more series of preference shares and to determine, with respect to any series of preference shares, the terms and rights of that series, including, among other things:
•
the designation of the series;
•
the number of shares of the series;
•
the dividend rights, dividend rates, conversion rights and voting rights; and
•
the rights and terms of redemption and liquidation preferences.
Our board of directors may issue preference shares without action by our shareholders to the extent of available authorized but unissued shares. Issuance of these shares may dilute the voting power of holders of ordinary shares.
Inspection of Books and Records. Holders of our ordinary shares will have no general right under Cayman Islands law to inspect or obtain copies of our list of shareholders or our corporate records. However, our second amended and restated memorandum and articles of association have provisions that provide our register of shareholders be opened to inspection for such times and on such days as our board of directors shall determine without charge by our shareholders, and to receive our annual audited financial statements.
Anti-Takeover Provisions. Certain provisions of our second amended and restated memorandum and articles of association may discourage, delay or prevent a change of control of our company or management that shareholders may consider favorable, including provisions that:
•
divide our board of directors into three classes of directors, with the classes to be as equal in number as possible and serving staggered three-year terms;
•
limit the ability to remove directors to removal for cause only;
•
authorize our board of directors to issue additional shares of any class of shares authorized by our second amended and restated memorandum and articles of association for any purpose without any further vote or action by our shareholders;
•
limit the ability of shareholders of less than one-third of all issued and outstanding ordinary shares entitled to vote at a general meeting of shareholders to requisition and convene such a meeting;
•
provide that shareholder action can be taken only at an annual or extraordinary general meeting of shareholders and cannot be taken by written consent; and
•
prescribe that only the board of directors, and not the shareholders, can change the size of the board or fill vacancies thereon.
However, under Cayman Islands law, our directors may only exercise the rights and powers granted to them under our second amended and restated memorandum and articles of association for a proper purpose and for what they believe in good faith to be in the best interests of our company.
Exempted Company. We are an exempted company with limited liability under the Companies Act. The Companies Act distinguishes between ordinary resident companies and exempted companies. Any company that is registered in the Cayman Islands but conducts business mainly outside of the Cayman Islands may apply to be registered as an exempted company. The requirements for an exempted company are essentially the same as for an ordinary company except that an exempted company:
•
does not have to file an annual return of its shareholders with the Registrar of Companies;
•
is not required to open its register of members for inspection;
•
does not have to hold an annual general meeting;
•
may issue shares with no par value;
•
may obtain an undertaking against the imposition of any future taxation (such undertakings are usually given for 20 years in the first instance);
•
may register by way of continuation in another jurisdiction and be deregistered in the Cayman Islands;
•
may register as an exempted limited duration company; and
•
may register as a segregated portfolio company.
“Limited liability” means that the liability of each shareholder is limited to the amount unpaid by the shareholder on that shareholder’s shares of the company (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil).
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities, which may be secured or unsecured and may be exchangeable for and/or convertible into other securities, including our ordinary shares. The debt securities will be issued under one or more separate indentures between us and a designated trustee. The terms of each series of debt securities being offered, including the terms, if any, on which a series of debt securities may be convertible into or exchangeable for other securities, and the material terms of the indenture will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will set forth, to the extent required and as applicable, the following terms (non-exhaustive) of the debt securities in respect of which the prospectus supplement is delivered:
•
the title of the series;
•
the aggregate principal amount;
•
the issue price or prices, expressed as a percentage of the aggregate principal amount of the debt securities;
•
any limit on the aggregate principal amount;
•
the date or dates on which principal is payable;
•
the interest rate or rates (which may be fixed or variable) or, if applicable, the method used to determine such rate or rates;
•
the date or dates on which interest, if any, will be payable and any regular record date for the interest payable;
•
the place or places where principal and, if applicable, premium and interest, is payable;
•
the terms and conditions upon which we may, or the holders may require us to, redeem or repurchase the debt securities;
•
the denominations in which such debt securities may be issuable, if other than denomination of $1,000 or any integral multiple of that number;
•
whether the debt securities are to be issuable in the form of certificated debt securities or global debt securities;
•
the portion of principal amount that will be payable upon declaration of acceleration of the maturity date if other than the principal amount of the debt securities;
•
the currency of denomination;
•
the designation of the currency, currencies or currency units in which payment of principal and, if applicable, premium and interest, will be made;
•
if payments of principal and, if applicable, premium or interest, on the debt securities are to be made in one or more currencies or currency units other than the currency of denominations, the manner in which exchange rate with respect to such payments will be determined;
•
if amounts of principal and, if applicable, premium and interest 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, then the manner in which such amounts will be determined;
•
the provisions, if any, relating to any collateral provided for such debt securities;
•
any events of default;
•
the terms and conditions, if any, for conversion into or exchange for ordinary shares;
•
any depositaries, interest rate calculation agents, exchange rate calculation agents, or other agents; and
•
the terms and conditions, if any, upon which the debt securities shall be subordinated in right of payment to other indebtedness of our company.
SELLING SECURITY HOLDERS
Selling security holders are persons or entities that, directly or indirectly, have acquired or will from time to time acquire from us, our securities in various private transactions. Such selling security holders may be parties to registration rights agreements with us, or we otherwise may have agreed or will agree to register their securities for resale. The initial purchasers of our securities, as well as their transferees, pledgees, donees or successors, all of whom we refer to as “selling security holders,” may from time to time offer and sell the securities pursuant to this prospectus and any applicable prospectus supplement.
The applicable prospectus supplement will set forth the name of each selling security holder and the number of securities beneficially owned by such selling security holder that are covered by such prospectus supplement. The applicable prospectus supplement also will disclose whether any of the selling security holders have held any position or office with, have been employed by or otherwise have had a material relationship with us during the three years prior to the date of the prospectus supplement.
PLAN OF DISTRIBUTION
We and/or any selling security holder may sell the securities in one or more of the following ways (or in any combination) from time to time:
•
through underwriters or dealers;
•
directly to a limited number of purchasers or to a single purchaser;
•
in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, into an existing trading market on an exchange or otherwise;
•
through agents; or
•
through any other method permitted by applicable law and described in the applicable prospectus supplement.
The prospectus supplement will state the terms of the offering of the securities, including:
•
the name or names of any underwriters, dealers or agents;
•
the purchase price of such securities and the proceeds to be received by us, if any;
•
any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
•
any public offering price;
•
any discounts or concessions allowed or reallowed or paid to dealers; and
•
any securities exchanges on which the securities may be listed.
Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including:
•
negotiated transactions;
•
at a fixed public offering price or prices, which may be changed;
•
at market prices prevailing at the time of sale;
•
at prices related to prevailing market prices; or
•
at negotiated prices.
Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions and the underwriters will be obligated to purchase all of the securities, if any are purchased.
The securities may be sold through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions paid to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
Sales to or through one or more underwriters or agents in at-the-market offerings will be made pursuant to the terms of a distribution agreement with the underwriters or agents. Such underwriters or agents may act on an agency basis or on a principal basis. During the term of any such agreement, shares may be sold on a daily basis on any stock exchange, market or trading facility on which the securities are traded, in privately negotiated transactions or otherwise as agreed with the underwriters or agents. The distribution agreement will provide that any ordinary share sold will be sold at negotiated prices or at prices related to the then prevailing market prices for our securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement, we may also agree to sell, and the
relevant underwriters or agents may agree to solicit offers to purchase, blocks of our securities. The terms of each such distribution agreement will be described in a prospectus supplement.
We and/or any selling security holder may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions paid for solicitation of these contracts.
Underwriters and agents may be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the underwriters or agents may be required to make.
The prospectus supplement may also set forth whether or not underwriters may over-allot or effect transactions that stabilize, maintain or otherwise affect the market price of the securities at levels above those that might otherwise prevail in the open market, including, for example, by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids.
Underwriters and agents may be customers of, engage in transactions with, or perform services for us and our affiliates in the ordinary course of business.
EXPENSES OF THE OFFERING
The following table sets forth the expenses (other than underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation, if any) expected to be incurred by us in connection with a possible offering of securities registered under this registration statement:
|
Expenses
|
|
|
Amount
|
|
|
U.S. Securities and Exchange Commission registration fee
|
|
|
(1)(2)
|
|
|
FINRA filing fee
|
|
|
|
$ |
225,000 |
|
|
|
Printing and engraving expenses
|
|
|
(1)
|
|
|
Legal fees and expenses
|
|
|
(1)
|
|
|
Transfer agent and registrar fee
|
|
|
(1)
|
|
|
Accounting fees and expenses
|
|
|
(1)
|
|
|
Miscellaneous costs
|
|
|
(1)
|
|
|
Total
|
|
|
$ (1)
|
|
(1)
These fees and expenses depend on the securities offered and the number of offerings, and accordingly cannot be estimated at this time and will be reflected in the applicable prospectus supplement.
(2)
Omitted because the registration fee is being deferred pursuant to Rule 456(b) and Rule 457(r) under the Securities Act.
LEGAL MATTERS
The validity of the securities and certain other matters of Cayman Islands law have been passed upon for us by Conyers Dill & Pearman. Certain matters of U.S. federal and New York State law have been passed upon for us by Davis Polk & Wardwell LLP, New York, New York. Any underwriters, dealers or agents will be advised by their own legal counsel concerning issues relating to any offering.
EXPERTS
Our consolidated financial statements as of December 31, 2024 and 2023, and for each of the years in the three-year period ended December 31, 2024, have been incorporated by reference herein in reliance upon the report of KPMG AB (“KPMG”), independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
The registered business address of KPMG is Vasagatan 16, 111 20 Stockholm, Sweden.
ENFORCEABILITY OF CIVIL LIABILITIES
Our company is an exempted company incorporated with limited liability under the laws of the Cayman Islands. We are incorporated in the Cayman Islands because of certain benefits associated with being a Cayman Islands exempted company, such as political and economic stability, an effective judicial system, a favorable tax system, the absence of foreign exchange control or currency restrictions and the availability of professional and support services. However, the Cayman Islands has a less developed body of securities laws as compared to the United States and these securities laws provide less protection for investors as compared to the United States. In addition, Cayman Islands companies may not have standing to sue before the U.S. federal courts.
The majority of our operations and current assets are conducted and located outside the United States. The majority of the directors and executive officers of the Company reside outside the United States and substantially all of their assets are located outside the United States. As a result, it may not be possible for investors to effect service of process within the United States upon us or any such persons, or to enforce in the United States any judgment obtained in the U.S. courts against us or any of such persons, including judgments based upon the civil liability provisions of the U.S. securities laws or any U.S. state or territory.
Conyers Dill & Pearman, our counsel as to Cayman Islands law, has advised us that there is uncertainty as to whether the courts of the Cayman Islands would (i) recognize or enforce judgments of the United States courts obtained against us or our directors or executive officers that are predicated upon the civil liability provisions of the securities laws of the United States or any state in the United States; or (ii) entertain original actions brought in the Cayman Islands against us or our directors or executive officers that are predicated upon the securities laws of the United States or the securities laws of any state in the United States.
We have been advised by our Cayman Islands counsel Conyers Dill & Pearman that although there is no statutory enforcement in the Cayman Islands of judgments obtained in the federal or state courts of the United States (and the Cayman Islands are not a party to any treaties for the reciprocal enforcement or recognition of such judgments with the United States), the courts of the Cayman Islands would recognize as a valid judgment, a final and conclusive judgment in personam obtained in the federal or state courts of the United States against the Company under which a sum of money is payable (other than a sum of money payable in respect of multiple damages, taxes or other charges of a like nature or in respect of a fine or other penalty) or, in certain circumstances, an in personam judgment for non-monetary relief, and would give a judgment based thereon provided that (a) such courts had proper jurisdiction over the parties subject to such judgment; (b) such courts did not contravene the rules of natural justice of the Cayman Islands; (c) such judgment was not obtained by fraud; (d) the enforcement of the judgment would not be contrary to the public policy of the Cayman Islands; (e) no new admissible evidence relevant to the action is submitted prior to the rendering of the judgment by the courts of the Cayman Islands; and (f) there is due compliance with the correct procedures under the laws of the Cayman Islands. A Cayman Islands court may stay enforcement proceedings if concurrent proceedings are being brought elsewhere.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the U.S. Securities and Exchange Commission a “shelf” registration statement (including amendments and exhibits to the registration statement) on Form F-3 under the Securities Act. This prospectus, which is part of the registration statement, does not contain all of the information set forth in the registration statement and the exhibits and schedules to the registration statement. For further information, we refer you to the registration statement and the exhibits and schedules filed as part of the registration statement. If a document has been filed as an exhibit to the registration statement, we refer you to the copy of the document that has been filed. Each statement in this prospectus relating to a document filed as an exhibit is qualified in all respects by the filed exhibit.
We are subject to the informational requirements of the Exchange Act. Accordingly, we are required to file or furnish reports and other information with the SEC, including annual reports on Form 20-F and reports on Form 6-K. The SEC maintains an Internet website at www.sec.gov that contains reports, proxy and information statements and other information we have filed electronically with the SEC.
As a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our executive officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
We maintain a corporate website at www.amersports.com. The reference to our website is an inactive textual reference only and information contained therein or connected thereto are not incorporated into this prospectus or the registration statement of which it forms a part.
INFORMATION INCORPORATED BY REFERENCE
The rules of the SEC allow us to incorporate information into this prospectus by reference. The information incorporated by reference is considered to be a part of this prospectus. This prospectus incorporates by reference the documents listed below (including any exhibits, except where otherwise noted):
•
•
the description of our ordinary shares contained in Exhibit 2.1 to our Annual Report on Form 20-F for the fiscal year ended December 31, 2024 filed on March 7, 2025, including all amendments and reports filed for the purpose of updating such description.
Any statement made in a document incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
All subsequent annual reports on Form 20-F, Form 40-F or Form 10-K that we file with the SEC and all subsequent filings on Forms 10-Q and 8-K filed by us with the SEC pursuant to the Exchange Act (excluding, in each case, any information or documents deemed to be furnished and not filed with the SEC), after the date hereof and prior to the termination or expiration of the registration statement of which this prospectus forms a part, shall be incorporated by reference. We may incorporate by reference any reports on Form 6-K that we furnish to the SEC that we specifically identify in such form or in any applicable prospectus supplement as being incorporated by reference into this prospectus or such prospectus supplement (i) after the filing of the registration statement of which this prospectus forms a part and prior to the effectiveness of such registration statement and (ii) after the date of this prospectus and prior to the completion of an offering of securities under this prospectus.
You can obtain any of the filings incorporated by reference into this prospectus through us or from the SEC through the SEC’s website at http://www.sec.gov. We will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of such person, a copy of any or all of the reports and documents referred to above which have been or may be incorporated by reference into this prospectus. You should direct requests for those documents to:
Amer Sports, Inc.
Cricket Square, Hutchins Drive,
P.O. Box 2681,
Grand Cayman, KY1-1111, Cayman Islands
+1 345 945 3901
We maintain an internet site at http://www.amersports.com. Our website and the information contained on or connected to it shall not be deemed to be incorporated into this prospectus or the registration statement of which it forms a part.
Amer Sports, Inc.
Ordinary Shares
Debt Securities
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 8. Indemnification of Directors and Officers
Cayman Islands law does not limit the extent to which a company’s memorandum and articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime.
Our second amended and restated memorandum and articles of association provides that we shall indemnify our directors and officers, and their personal representatives, against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by such persons, other than by reason of such person’s dishonesty, willful default or fraud, in or about the conduct of our Company’s business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of his duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by such director or officer in defending (whether successfully or otherwise) any civil proceedings concerning our Company or its affairs in any court whether in the Cayman Islands or elsewhere.
We have entered into indemnification agreements with each of our directors and officers. These agreements require us to indemnify these individuals to the fullest extent permitted under Cayman Islands law against liabilities that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified, subject to our Company reserving its rights to recover the full amount of such advances in the event that he or she is subsequently found to have been negligent or otherwise have breached his or her trust or fiduciary duties to our Company or to be in default thereof, or where the Cayman Islands courts have declined to grant relief.
The form of underwriting agreement to be filed as Exhibit 1.1 to this registration statement will also provide for indemnification of us and our officers and directors.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 9. Exhibits and Financial Statement Schedules
Exhibits
The Exhibit index attached hereto is incorporated herein by reference.
Financial Statement Schedules
All schedules have been omitted because they are not required or are not applicable, or the information is otherwise set forth in the consolidated financial statements and related notes thereto.
Item 10. Undertakings
The undersigned hereby undertakes:
(a)
to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(1)
to include any prospectus required by section 10(a)(3) of the Securities Act;
(2)
to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” table in the effective registration statement; and
(3)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1), (a)(2) and (a)(3) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(b)
that, for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
(c)
to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;
(d)
to file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (d) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Form F-3;
(e)
that, for the purpose of determining liability under the Securities Act to any purchaser:
(1)
each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(2)
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; and
(f)
that, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(1)
any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(2)
any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(3)
the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(4)
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser;
The undersigned hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless, in the opinion of its counsel, the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under Section 310(a) of the Trust Indenture Act (“Trust Indenture Act”) in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
EXHIBIT INDEX
The following documents are filed as part of this registration statement:
*
To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of the offered securities.
†
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Helsinki on March 7, 2025.
Amer Sports, Inc.
By:
/s/ Jie (James) Zheng
Name: Jie (James) Zheng
Title: Chief Executive Officer and Director
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Andrew E. Page and Jutta Karlsson and each of them, individually, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead in any and all capacities, in connection with this registration statement, including to sign in the name and on behalf of the undersigned, this registration statement and any and all amendments thereto, including post-effective amendments and registrations filed pursuant to Rule 462 under the U.S. Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons on March 7, 2025 in the capacities indicated:
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Jie (James) Zheng
Jie (James) Zheng
|
|
|
Chief Executive Officer and Director (principal executive officer)
|
|
|
March 7, 2025
|
|
| |
/s/ Andrew E. Page
Andrew E. Page
|
|
|
Chief Financial Officer (principal financial officer and principal accounting officer)
|
|
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March 7, 2025
|
|
| |
/s/ Mingwei Bi
Mingwei Bi
|
|
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Director
|
|
|
March 7, 2025
|
|
| |
/s/ Shizhong Ding
Shizhong Ding
|
|
|
Director and Chair
|
|
|
March 7, 2025
|
|
| |
/s/ Bruno Sälzer
Bruno Sälzer
|
|
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Director
|
|
|
March 7, 2025
|
|
| |
/s/ Catherine (Trina) Spear
Catherine (Trina) Spear
|
|
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Director
|
|
|
March 7, 2025
|
|
| |
/s/ Frank K. Tang
Frank K. Tang
|
|
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Director
|
|
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March 7, 2025
|
|
| |
Signature
|
|
|
Title
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|
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Date
|
|
| |
/s/ Tak Yan (Dennis) Tao
Tak Yan (Dennis) Tao
|
|
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Director
|
|
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March 7, 2025
|
|
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/s/ Carrie Teffner
Carrie Teffner
|
|
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Director
|
|
|
March 7, 2025
|
|
| |
/s/ Dennis J. (Chip) Wilson
Dennis J. (Chip) Wilson
|
|
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Director
|
|
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March 7, 2025
|
|
| |
/s/ Ling Xiong
Ling Xiong
|
|
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Director
|
|
|
March 7, 2025
|
|
| |
/s/ Kin Wah Stephen Yiu
Kin Wah Stephen Yiu
|
|
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Director
|
|
|
March 7, 2025
|
|
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE
Under the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Amer Sports, Inc., has signed this registration statement or amendment thereto on March 7, 2025.
Authorized U.S. Representative
By:
/s/ Andrew E. Page
Name: Andrew E. Page
Title: Chief Financial Officer
Exhibit 4.1
Amer Sports, Inc.
as the Company
and
[ ]
as Trustee
Senior Indenture
Dated as of [ ], [ ]
TABLE OF CONTENTS
Page
Article 1
Definitions and Incorporation by Reference
| Section 1.01. Definitions |
1 |
| Section 1.02. Other Definitions |
4 |
| Section 1.03. Incorporation by Reference of Trust Indenture Act |
5 |
| Section 1.04. Rules of Construction |
5 |
|
Article 2
The Securities
|
| Section 2.01. Form and Dating |
6 |
| Section 2.02. Execution and Authentication |
6 |
| Section 2.03. Amount Unlimited; Issuable in Series |
8 |
| Section 2.04. Denomination and Date of Securities; Payments of Interest |
10 |
| Section 2.05. Registrar and Paying Agent; Agents Generally |
10 |
| Section 2.06. Paying Agent to Hold Money in Trust |
11 |
| Section 2.07. Transfer and Exchange |
12 |
| Section 2.08. Replacement Securities |
14 |
| Section 2.09. Outstanding Securities |
14 |
| Section 2.10. Temporary Securities |
15 |
| Section 2.11. Cancellation |
16 |
| Section 2.12. CUSIP Numbers |
16 |
| Section 2.13. Defaulted Interest |
16 |
| Section 2.14. Series May Include Tranches |
16 |
| |
|
|
Article 3
Redemption
|
| Section 3.01. Applicability of Article |
17 |
| Section 3.02. Notice of Redemption; Partial Redemptions |
17 |
| Section 3.03. Payment of Securities Called for Redemption |
18 |
| Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption |
19 |
| Section 3.05. Mandatory and Optional Sinking Funds |
19 |
| |
|
|
Article 4
Covenants
|
| Section 4.01. Payment of Securities |
21 |
| Section 4.02. Maintenance of Office or Agency |
22 |
| Section 4.03. Securityholders’ Lists |
22 |
| Section 4.04. Certificate to Trustee |
22 |
| Section 4.05. Reports by the Company |
23 |
| Section 4.06. Additional Amounts |
23 |
|
Article 5
Successor
Corporation
|
| Section 5.01. When Company May Merge, Etc |
24 |
| Section 5.02. Successor Substituted |
24 |
| |
|
|
Article 6
Default
and Remedies
|
| Section 6.01. Events of Default |
25 |
| Section 6.02. Acceleration |
26 |
| Section 6.03. Other Remedies |
27 |
| Section 6.04. Waiver of Past Defaults |
27 |
| Section 6.05. Control by Majority |
27 |
| Section 6.06. Limitation on Suits |
28 |
| Section 6.07. Rights of Holders to Receive Payment |
28 |
| Section 6.08. Collection Suit by Trustee |
28 |
| Section 6.09. Trustee May File Proofs of Claim |
29 |
| Section 6.10. Application of Proceeds |
29 |
| Section 6.11. Restoration of Rights and Remedies |
30 |
| Section 6.12. Undertaking for Costs |
30 |
| Section 6.13. Rights and Remedies Cumulative |
30 |
| Section 6.14. Delay or Omission not Waiver |
30 |
| |
|
|
Article 7
Trustee
|
| Section 7.01. General |
31 |
| Section 7.02. Certain Rights of Trustee |
31 |
| Section 7.03. Individual Rights of Trustee |
32 |
| Section 7.04. Trustee’s Disclaimer |
33 |
| Section 7.05. Notice of Default |
33 |
| Section 7.06. Reports by Trustee to Holders |
33 |
| Section 7.07. Compensation and Indemnity |
33 |
| Section 7.08. Replacement of Trustee |
34 |
| Section 7.09. Acceptance of Appointment by Successor |
35 |
| Section 7.10. Successor Trustee By Merger, Etc |
36 |
| Section 7.11. Eligibility |
36 |
| Section 7.12. Money Held in Trust |
36 |
| |
|
|
Article 8
Satisfaction
and Discharge of Indenture; Unclaimed Moneys
|
| Section 8.01. Satisfaction and Discharge of Indenture |
37 |
| Section 8.02. Application by Trustee of Funds Deposited for Payment of Securities |
38 |
| Section 8.03. Repayment of Moneys Held by Paying Agent |
38 |
| Section 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
38 |
| Section 8.05. Defeasance and Discharge of Indenture |
38 |
| Section 8.06. Defeasance of Certain Obligations |
40 |
| Section 8.07. Reinstatement |
41 |
| Section 8.08. Indemnity |
41 |
| Section 8.09. Excess Funds |
41 |
| Section 8.10. Qualifying Trustee |
41 |
| |
|
|
Article 9
Amendments,
Supplements and Waivers
|
| Section 9.01. Without Consent of Holders |
42 |
| Section 9.02. With Consent of Holders |
42 |
| Section 9.03. Revocation and Effect of Consent |
43 |
| Section 9.04. Notation on or Exchange of Securities |
44 |
| Section 9.05. Trustee to Sign Amendments, Etc |
44 |
| Section 9.06. Conformity with Trust Indenture Act |
44 |
| |
|
|
Article 10
Miscellaneous
|
| Section 10.01. Trust Indenture Act of 1939 |
44 |
| Section 10.02. Notices |
44 |
| Section 10.03. Certificate and Opinion as to Conditions Precedent |
45 |
| Section 10.04. Statements Required in Certificate or Opinion |
46 |
| Section 10.05. Evidence of Ownership |
46 |
| Section 10.06. Rules by Trustee, Paying Agent or Registrar |
46 |
| Section 10.07. Payment Date Other Than a Business Day |
46 |
| Section 10.08. Governing Law |
47 |
| Section 10.09. No Adverse Interpretation of Other Agreements |
47 |
| Section 10.10. Successors |
47 |
| Section 10.11. Duplicate Originals |
47 |
| Section 10.12. Separability |
47 |
| Section 10.13. Table of Contents, Headings, Etc |
47 |
| Section 10.14. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability |
47 |
| Section 10.15. Judgment Currency |
48 |
| Section 10.16. Waiver of Jury Trial |
48 |
| Section 10.17. Force Majeure |
48 |
SENIOR INDENTURE, dated as of [ , ], between Amer
Sports, Inc., an exempted company incorporated under the laws of the Cayman Islands, as the Company, and [ ], as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue
from time to time of its senior debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”)
up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide,
among other things, for the authentication, delivery and administration thereof, the Company has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, all things necessary to make this Indenture
a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of the Securities by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit
of the respective holders from time to time of the Securities or of any and all series thereof as follows:
Article 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.
“Affiliate” of any Person means
any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For
the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled
by” and “under common control with”) when used with respect to any Person means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities,
by contract or otherwise.
“Agent” means any Registrar,
Paying Agent, transfer agent or Authenticating Agent.
“Board Resolution” means one
or more resolutions of the board of directors of the Company or any authorized committee thereof, certified by the secretary or an assistant
secretary to have been duly adopted and to be in full force and effect on the date of certification, and delivered to the Trustee.
“Business Day” means any day,
other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by
law or regulation to close (i) with respect to any Security the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits in The City of New York or Frankfurt or (ii) with respect to Securities denominated in a specified
currency other than United States dollars, in the principal financial center of the country of the specified currency.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
“Company” means the party named
as such in the first paragraph of this Indenture until a successor replaces it pursuant to Article 5
of this Indenture and thereafter means the successor.
“Corporate Trust Office” means
the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be administered, which office
is, at the date of this Indenture, located at [ ].
“Default” means any event that
is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” means, with respect
to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary
by the Company pursuant to Section 2.03 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean
or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary”
as used with respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of
that series.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Holder” or “Securityholder”
means the registered holder of any Security.
“IFRS” means International Financial
Reporting Standards as issued by the International Accounting Standards Board, as in effect as of the date hereof.
“Indenture” means this Indenture
as originally executed and delivered or as it may be amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this Indenture and shall include the forms and terms of the Securities
of each series established as contemplated pursuant to Sections 2.01
and 2.03.
“Officer” means, with respect
to the Company, the chairman of the board of directors, the president or chief executive officer, any executive vice president, any senior
vice president, any vice president, the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant
secretary.
“Officers’ Certificate”
means a certificate signed in the name of the Company (i) by the chairman of the board of directors, president or chief executive
officer, an executive vice president, a senior vice president or a vice president, and (ii) by the chief financial officer, the treasurer
or any assistant treasurer, or the secretary or any assistant secretary, and delivered to the Trustee. Each such certificate shall comply
with Section 314 of the Trust Indenture Act, if applicable, and include (except as otherwise expressly provided in this Indenture)
the statements provided in Section 10.04, if applicable.
“Opinion of Counsel” means a
written opinion signed by legal counsel, who may be an employee of or counsel to the Company, satisfactory to the Trustee. Each such opinion
shall comply with Section 314 of the Trust Indenture Act, if applicable, and include the statements provided in Section 10.04,
if and to the extent required thereby.
“original issue date” of any
Security (or portion thereof) means the earlier of (a) the date of authentication of such Security or (b) the date of any Security
(or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
“Original Issue Discount Security”
means any Security that provides for an amount less than the Principal amount thereof to be due and payable upon a declaration of acceleration
of the maturity thereof pursuant to Section 6.02.
“Periodic Offering” means an
offering of Securities of a series from time to time, the specific terms of which Securities, including, without limitation, the rate
or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Company or its agents upon the issuance of such Securities.
“Person” means an individual,
a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“Principal” of a Security means
the principal amount of, and, unless the context indicates otherwise, includes any premium payable on, the Security.
“Registered Global Security”
means a Security evidencing all or a part of a series of Securities, issued to the Depositary for such series in accordance with Section 2.02,
and bearing the legend prescribed in Section 2.02.
“Responsible Officer” when used
with respect to the Trustee, shall mean an officer of the Trustee in the Corporate Trust Office, having direct responsibility for the
administration of this Indenture, and also, with respect to a particular matter, any other officer to whom such matter is referred because
of such officer’s knowledge of and familiarity with the particular subject.
“Securities” means any of the
securities, as defined in the first paragraph of the recitals hereof, that are authenticated and delivered under this Indenture.
“Securities Act” means the Securities
Act of 1933, as amended.
“Subsidiary” means, with respect
to any Person, any corporation, association or other business entity of which a majority of the capital stock or other ownership interests
having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person.
“Trustee” means the party named
as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of Article 7
and thereafter 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.
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb), as it may be amended from time to time.
“U.S. Government Obligations”
means securities that 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 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 shall also include a depository 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 depository receipt.
“Yield to Maturity” means, as
the context may require, the yield to maturity (i) on a series of Securities or (ii) if the Securities of a series are issuable
from time to time, on a Security of such series, calculated at the time of issuance of such series in the case of clause (i) or at
the time of issuance of such Security of such series in the case of clause (ii), or, if applicable, at the most recent redetermination
of interest on such series or on such Security, and calculated in accordance with the constant interest method or such other accepted
financial practice as is specified in the terms of such Security.
Section 1.02. Other
Definitions. Each of the following terms is defined in the section set forth opposite such term:
|
Term |
|
Section |
| Authenticating Agent |
|
2.02 |
| cash transaction |
|
7.03 |
| Event of Default |
|
6.01 |
| Judgment Currency |
|
10.15(a) |
| mandatory sinking fund payment |
|
3.05 |
| optional sinking fund payment |
|
3.05 |
| Paying Agent |
|
2.05 |
| record date |
|
2.04 |
| Registrar |
|
2.05 |
| Required Currency |
|
10.15(a) |
| Security Register |
|
2.05 |
| self-liquidating paper |
|
7.03 |
| sinking fund payment date |
|
3.05 |
| Surviving Entity |
|
5.01(a) |
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2.14 |
Section 1.03. Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated
by reference in and made a part of this Indenture. The following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
“indenture securities” means
the Securities;
“indenture security holder”
means a Holder or a Securityholder;
“indenture to be qualified”
means this Indenture;
“indenture trustee” or “institutional
trustee” means the Trustee; and
“obligor” on the indenture securities
means the Company or any other obligor on the Securities.
All other terms used in this Indenture that are
defined by the Trust Indenture Act, defined by reference in the Trust Indenture Act to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them therein.
Section 1.04. Rules of
Construction. Unless the context otherwise requires:
(a) an
accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS;
(b) words
in the singular include the plural, and words in the plural include the singular;
(c) “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(d) all
references to Sections or Articles refer to Sections or Articles of this Indenture unless otherwise indicated; and
(e) use
of masculine, feminine or neuter pronouns should not be deemed a limitation, and the use of any such pronouns should be construed to include,
where appropriate, the other pronouns.
Article 2
The Securities
Section 2.01. Form and
Dating. The Securities of each series shall be substantially in such form or forms (not inconsistent with this Indenture) as shall
be established by or pursuant to one or more Board Resolutions 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 imprinted
or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law, or with any rules of any securities exchange or usage, all as may be determined by the Officers
executing such Securities as evidenced by their execution of the Securities.
Section 2.02. Execution
and Authentication. Two Officers shall execute the Securities for the Company by facsimile or manual signature in the name and on
behalf of the Company. 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.
The Trustee, at the expense of the Company, may
appoint an authenticating agent (the “Authenticating Agent”) to authenticate Securities. The 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 Authenticating Agent.
A Security shall not be valid until the Trustee
or Authenticating Agent signs, manually or by facsimile, the certificate of authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication
together with the applicable documents referred to below in this Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company. In authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the authentication of any Securities of such series, and (subject to Article 7)
shall be fully protected in relying upon, unless and until such documents have been superseded or revoked:
(a) any
Board Resolution and/or executed supplemental indenture referred to in Sections 2.01
and 2.03 by or pursuant to which the forms and terms of the Securities
of that series were established;
(b) an
Officers’ Certificate setting forth the form or forms and terms of the Securities, stating that the form or forms and terms of the
Securities of such series have been, or, in the case of a Periodic Offering, will be when established in accordance with such procedures
as shall be referred to therein, established in compliance with this Indenture; and
(c) an
Opinion of Counsel substantially to the effect that the form or forms and terms of the Securities of such series have been, or, in the
case of a Periodic Offering, will be when established in accordance with such procedures as shall be referred to therein, established
in compliance with this Indenture and that the supplemental indenture, to the extent applicable, and Securities have been duly authorized
and, if executed and authenticated in accordance with the provisions of the Indenture and delivered to and duly paid for by the purchasers
thereof on the date of such opinion, would be entitled to the benefits of the Indenture and would be valid and binding obligations of
the Company, enforceable against the Company in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors’ rights generally, general principles of equity, and covering
such other matters as shall be specified therein and as shall be reasonably requested by the Trustee.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Sections 2.01
and 2.02, if, in connection with a Periodic Offering, all Securities
of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution otherwise required
pursuant to Section 2.01 or the written order, Officers’
Certificate and Opinion of Counsel otherwise required pursuant to Section 2.02
at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
With respect to Securities of a series offered
in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the forms and terms thereof
and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant
to Sections 2.01 and 2.02,
as applicable, in connection with the first authentication of Securities of such series.
If the Company shall establish pursuant to Section 2.03
that the Securities of a series or a portion thereof are to be issued in the form of one or more Registered Global Securities, then the
Company shall execute and the Trustee shall authenticate and deliver one or more Registered Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate Principal amount of all of the Securities of such series issued in such form
and not yet cancelled, (ii) shall be registered in the name of the Depositary for such Registered Global Security or Securities or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or its custodian or pursuant to such Depositary’s
instructions and (iv) shall (unless provided otherwise in the form of such Security) bear a legend substantially to the following
effect: “Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not
be transferred except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary.”
Section 2.03. Amount
Unlimited; 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
and each such series shall rank equally and pari passu with all other unsecured and unsubordinated debt of the Company. There shall
be established in or pursuant to a Board Resolution or one or more indentures supplemental hereto, prior to the initial issuance of Securities
of any series, subject to the last sentence of this Section 2.03,
(a) the
designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities of all other series;
(b) any
limit upon the aggregate Principal amount of the Securities of the series that may be authenticated and delivered under this Indenture
and any limitation on the ability of the Company to increase such aggregate Principal amount after the initial issuance of the Securities
of that series (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
or upon redemption of, other Securities of the series pursuant hereto);
(c) the
date or dates on which the Principal of the Securities of the series is payable (which date or dates may be fixed or extendible);
(d) the
rate or rates (which may be fixed or variable) per annum at which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall be payable and on which a record shall be taken for the determination
of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall be determined;
(e) if
other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series shall be payable, any Securities of the series may be surrendered
for exchange, and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
(f) the
right, if any, of the Company to redeem Securities of the series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed, pursuant to any
sinking fund or otherwise;
(g) the
obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which
and any of 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;
(h) if
other than denominations of $2,000 and any higher integral multiple of $1,000, the denominations in which Securities of the series shall
be issuable;
(i) if
other than the Principal amount thereof, the portion of the Principal amount of Securities of the series which shall be payable upon declaration
of acceleration of the maturity thereof;
(j) if
other than the coin or currency in which the Securities of the series are denominated, the coin or currency in which payment of the Principal
of or interest on the Securities of the series shall be payable or if the amount of payments of principal of and/or interest on the Securities
of the series may be determined with reference to an index based on a coin or currency other than that in which the Securities of the
series are denominated, the manner in which such amounts shall be determined;
(k) if
other than the currency of the United States of America, the currency or currencies, including composite currencies, in which payment
of the Principal of and interest on the Securities of the series shall be payable, and the manner in which any such currencies shall be
valued against other currencies in which any other Securities shall be payable;
(l) whether
the Securities of the series or any portion thereof will be issuable as Registered Global Securities;
(m) whether
the Securities of the series may be exchangeable for and/or convertible into the common stock of the Company or any other security;
(n) whether
and under what circumstances the Company will pay additional amounts on the Securities of the series held by a person who is not a U.S.
person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option
to redeem such Securities rather than pay such additional amounts;
(o) if
the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of
such certificates, documents or conditions;
(p) any
trustees, depositaries, authenticating or paying agents, transfer agents or the registrar or any other agents with respect to the Securities
of the series;
(q) provisions,
if any, for the defeasance of the Securities of the series (including provisions permitting defeasance of less than all Securities of
the series), which provisions may be in addition to, in substitution for, or in modification of (or any combination of the foregoing)
the provisions of Article 8;
(r) if
the Securities of the series are issuable in whole or in part as one or more Registered Global Securities, the identity of the Depositary
or common Depositary for such Registered Global Security or Securities;
(s) any
other or alternative Events of Default or covenants with respect to the Securities of the series; and
(t) any
other terms of the Securities of the series.
All Securities of any one series shall be substantially
identical, except as to date and denomination, except in the case of any Periodic Offering and except as may otherwise be provided by
or pursuant to the Board Resolution referred to above or as set forth in any such indenture supplemental hereto. 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 such Board Resolution or in any such indenture supplemental hereto and any forms and terms of Securities to
be issued from time to time may be completed and established from time to time prior to the issuance thereof by procedures described in
such Board Resolution or supplemental indenture.
Unless otherwise expressly provided with respect
to a series of Securities, the aggregate principal amount of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased.
Section 2.04. Denomination
and Date of Securities; Payments of Interest. The Securities of each series shall be issuable in denominations established as contemplated
by Section 2.03 or, if not so established with respect to Securities
of any series, in denominations of $2,000 and any higher integral multiple of $1,000. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such plan as the Officers of the Company executing the same may
determine, as evidenced by their execution thereof.
Unless otherwise specified with respect to a series
of Securities, each Security shall be dated the date of its authentication. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates, established as contemplated by Section 2.03.
The person in whose name any Security of any series
is registered at the close of business on any record date applicable to a particular series with respect to any interest payment date
for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer
or exchange of such Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Company
shall default in the payment of the interest due on such interest payment date for such series, in which case the provisions of Section 2.13
shall apply. The term “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 Securities of such series established
as contemplated by Section 2.03, 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.
Section 2.05. Registrar
and Paying Agent; Agents Generally. The Company shall maintain an office or agency where Securities may be presented for registration,
registration of transfer or for exchange (the “Registrar”) and an office or agency where Securities may be presented
for payment (the “Paying Agent”), which shall be in the United States of America. The Company shall cause the Registrar
to keep a register of the Securities and of their registration, transfer and exchange (the “Security Register”). The
Company may have one or more additional Paying Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture and the Trust Indenture
Act that relate to such Agent. The Company shall give prompt written notice to the Trustee of the name and address of any Agent and any
change in the name or address of an Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company may remove any Agent upon written notice to such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent to such Agent as evidenced by an appropriate agency agreement
entered into by the Company and such successor Agent and delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in accordance with clause (i) of
this proviso. The Company or any Affiliate of the Company may act as Paying Agent or Registrar; provided that neither the Company
nor an Affiliate of the Company shall act as Paying Agent in connection with the defeasance of the Securities or the discharge of this
Indenture under Article 8.
The Company initially appoints the Trustee as Registrar,
Paying Agent and Authenticating Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall make available to the Trustee
ten days prior to each interest payment date and at such other times as the Trustee may reasonably request the names and addresses of
the Holders as they appear in the Security Register.
Section 2.06. Paying
Agent to Hold Money in Trust. Not later than 10:00 a.m. New York City time on each due date of any Principal or interest on any
Securities, the Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay such Principal or interest.
The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for
the benefit of the Holders of such Securities or the Trustee all money held by the Paying Agent for the payment of Principal of and interest
on such Securities and shall promptly notify the Trustee of any default by the Company in making any such payment. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed, and the Trustee may at
any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for
the money so paid over to the Trustee. If the Company or any affiliate of the Company acts as Paying Agent, it will, on or before each
due date of any Principal of or interest on any Securities, segregate and hold in a separate trust fund for the benefit of the Holders
thereof a sum of money sufficient to pay such Principal or interest so becoming due until such sum of money shall be paid to such Holders
or otherwise disposed of as provided in this Indenture, and will promptly notify the Trustee in writing of its action or failure to act
as required by this Section.
Section 2.07. Transfer
and Exchange. At the option of the Holder thereof, Securities of any series (other than a Registered Global Security, except as set
forth below) may be exchanged for a Security or Securities of such series and tenor having authorized denominations and an equal aggregate
Principal amount, upon surrender of such Securities to be exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 2.05 and upon payment, if the Company
shall so require, of the charges hereinafter provided. Whenever any Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Upon surrender for registration of transfer of
any Security of a series at the agency of the Company that shall be maintained for that purpose in accordance with Section 2.05
and upon payment, if the Company shall so require, of the charges hereinafter provided, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any
authorized denominations and of like tenor and aggregate Principal amount.
All Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities.
No service charge shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.07,
unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global Security representing
all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered
Global Securities of any series notifies the Company that it is unwilling or unable to continue as Depositary for such Registered Global
Securities or if at any time the Depositary for such Registered Global Securities shall no longer be eligible under applicable law, the
Company shall appoint a successor Depositary eligible under applicable law with respect to such Registered Global Securities. If a successor
Depositary eligible under applicable law for such Registered Global Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of the Company’s
order for the authentication and delivery of definitive Securities of such series and tenor, will authenticate and deliver certificated
Securities of such series and tenor, in any authorized denominations, in an aggregate Principal amount equal to the Principal amount of
such Registered Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
and subject to the procedures of the Depositary determine that any Registered Global Securities of any series shall no longer be maintained
in global form. In such event the Company will execute, and the Trustee, upon receipt of the Company’s order for the authentication
and delivery of definitive Securities of such series and tenor, will authenticate and deliver, certificated Securities of such series
and tenor in any authorized denominations, in an aggregate Principal amount equal to the Principal amount of such Registered Global Securities,
in exchange for such Registered Global Securities.
Any time the Securities of any series are not in
the form of Registered Global Securities pursuant to the preceding two paragraphs, the Company agrees to supply the Trustee with a reasonable
supply of certificated Securities without the legend required by Section 2.02
and the Trustee agrees to hold such Securities in safekeeping until authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03
with respect to any Registered Global Security, the Depositary for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Securities of the same series and tenor in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(a) to
the Person specified by such Depositary new certificated Securities of the same series and tenor, of any authorized denominations as requested
by such Person, in an aggregate Principal amount equal to and in exchange for such Person’s beneficial interest in the Registered
Global Security; and
(b) to
such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the Principal amount of the
surrendered Registered Global Security and the aggregate Principal amount of certificated Securities authenticated and delivered pursuant
to clause (a) above.
Certificated Securities issued in exchange for
a Registered Global Security pursuant to this Section 2.07 shall
be registered in such names and in such authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Company or the Trustee. The Trustee
or such agent shall deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange
of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.
The Registrar shall not be required (i) to
issue, authenticate, register the transfer of or exchange Securities of any series for a period of 15 days before a selection of such
Securities to be redeemed or (ii) to register the transfer of or exchange any Security selected for redemption in whole or in part.
Section 2.08. Replacement
Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate
and deliver, in exchange for such mutilated Security, a new Security of the same series and of like tenor and Principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of any of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and Principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish
to the Company and the Trustee such security or indemnity as may be required by them to save each of them and any agent of any of them
harmless, and in the case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee and any agent of them of
the destruction, loss or theft of such Security and the ownership thereof.
Upon the issuance of any new Security under this
Section, the Company may require 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 or in exchange for any mutilated Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and any such new Security 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) any other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 2.09. Outstanding
Securities. Securities outstanding at any time are all Securities that have been authenticated by the Trustee except for those cancelled
by it, those delivered to it for cancellation, those described in this Section as not outstanding and those that have been defeased
pursuant to Section 8.05.
If a Security is replaced pursuant to Section 2.08,
it ceases to be outstanding unless and until the Trustee and the Company receive proof satisfactory to them that the replaced Security
is held by a holder in due course.
If the Paying Agent (other than the Company or
an affiliate of the Company) holds on the maturity date or any redemption date or date for repurchase of the Securities money sufficient
to pay Securities payable or to be redeemed or repurchased on that date, then on and after that date such Securities cease to be outstanding
and interest on them shall cease to accrue.
A Security does not cease to be outstanding because
the Company or one of its affiliates holds such Security, provided, however, that, in determining whether the Holders of
the requisite Principal amount of the outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Securities owned by the Company or any affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer of the Trustee has received written notice to be so owned
shall be so disregarded. Any Securities so owned which are pledged by the Company, or by any affiliate of the Company, as security for
loans or other obligations, otherwise than to another such affiliate of the Company, shall be deemed to be outstanding, if the pledgee
is entitled pursuant to the terms of its pledge agreement and is free to exercise in its or his discretion the right to vote such securities,
uncontrolled by the Company or by any such affiliate.
Section 2.10. Temporary
Securities. Until definitive Securities of any series are ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities of such series. Temporary Securities of any series shall be substantially in the form of definitive Securities of
such series but may have insertions, substitutions, omissions and other variations determined to be appropriate by the Officers executing
the temporary Securities, as evidenced by their execution of such temporary Securities. If temporary Securities of any series are issued,
the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive
Securities of any series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series and tenor
upon surrender of such temporary Securities at the office or agency of the Company designated for such purpose pursuant to Section 4.02,
without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a like Principal amount of definitive Securities of such series
and tenor and authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series.
Section 2.11. Cancellation.
The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar, any transfer agent and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The Trustee shall cancel and dispose of in accordance with its customary
procedures all Securities surrendered for transfer, exchange, payment or cancellation and shall deliver a certificate of disposition to
the Company. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.
Section 2.12. CUSIP
Numbers. The Company in issuing the Securities may use “CUSIP,” “ISIN” and/or “CINS” numbers (if
then generally in use), and the Trustee shall use CUSIP numbers, ISIN numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or exchange.
Section 2.13. Defaulted
Interest. If the Company defaults in a payment of interest on the Securities, it shall pay, or shall deposit with the Paying Agent
money in immediately available funds sufficient to pay, the defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established pursuant to Section 2.03)
to the Persons who are Holders on a subsequent special record date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a Business Day. At least 15 days before such special record
date, the Company shall mail to each Holder of such Securities and to the Trustee a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid.
Section 2.14. Series May Include
Tranches. A series of Securities may include one or more tranches (each a “tranche”) of Securities, including Securities
issued in a Periodic Offering. The Securities of different tranches may have one or more different terms, including authentication dates
and public offering prices, but all the Securities within each such tranche shall have identical terms, including authentication date
and public offering price. Notwithstanding any other provision of this Indenture, with respect to Sections 2.02
(other than the fourth, sixth and seventh paragraphs thereof) through 2.04,
2.07, 2.08,
2.10, 3.01
through 3.05, 4.02,
6.01 through 6.14,
8.01 through 8.07,
9.02 and 10.07,
if any series of Securities includes more than one tranche, all provisions of such sections applicable to any series of Securities shall
be deemed equally applicable to each tranche of any series of Securities in the same manner as though originally designated a series unless
otherwise provided with respect to such series or tranche pursuant to Section 2.03.
In particular, and without limiting the scope of the next preceding sentence, any of the provisions of such sections which provide for
or permit action to be taken with respect to a series of Securities shall also be deemed to provide for and permit such action to be taken
instead only with respect to Securities of one or more tranches within that series (and such provisions shall be deemed satisfied thereby),
even if no comparable action is taken with respect to Securities in the remaining tranches of that series.
Article 3
Redemption
Section 3.01. Applicability
of Article. The provisions of this Article shall be applicable to the Securities of any series that are redeemable before their
maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03
for Securities of such series.
Section 3.02. Notice
of Redemption; Partial Redemptions. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or in
part at the option of the Company shall be given by mailing notice of such redemption by first class mail, postage prepaid, at least 10
days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses
as they shall appear upon the Security Register. Any notice which is mailed or published in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a whole or in part, shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall
specify the Principal amount of each Security of such series held by such Holder to be redeemed, the CUSIP numbers of the Securities to
be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the manner of calculation thereof, the
place or places of payment, that payment will be made upon presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease
to accrue. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the Principal
amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series and tenor in Principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series
to be redeemed at the option of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company.
On or before 10:00 a.m. New York City time
on the redemption date specified in the notice of redemption given as provided in this Section, the Company will deposit with the Trustee
or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided
in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If all of the outstanding Securities of a series are to be redeemed, the Company will deliver
to the Trustee at least 10 days prior to the last date on which notice of redemption may be given to Holders pursuant to the first paragraph
of this Section 3.02 (or such shorter period as shall be acceptable
to the Trustee) an Officers’ Certificate stating that all such Securities are to be redeemed. If less than all the outstanding Securities
of a series are to be redeemed, the Company will deliver to the Trustee at least 15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.02
(or such shorter period as shall be acceptable to the Trustee) an Officers’ Certificate stating the aggregate Principal amount of
such Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officers’ Certificate evidencing
compliance with such restriction or condition.
If less than all the Securities of a series are
to be redeemed, the Trustee shall select, pro rata, by lot or in such manner as it shall deem appropriate and fair, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in part in Principal amounts equal to authorized denominations for
Securities of such series. The Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption
and, in the case of any Securities of such series selected for partial redemption, the Principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the portion of the Principal amount of such Security which has
been or is to be redeemed.
Section 3.03. Payment
of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities or portions of Securities
specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on and after such date (unless the Company shall default in
the payment of such Securities at the redemption price, together with interest accrued to such date) interest on the Securities or portions
of Securities so called for redemption shall cease to accrue, and, except as provided in Sections 7.12
and 8.02, such Securities shall cease from and after the date fixed
for redemption to be entitled to any benefit under this Indenture, and the Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender
of such Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided
that payment of interest becoming due on or prior to the date fixed for redemption shall be payable to the Holders registered as such
on the relevant record date subject to the terms and provisions of Sections 2.04
and 2.13 hereof.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
Upon presentation of any Security of any series
redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of such series and tenor, of authorized denominations, in Principal amount
equal to the unredeemed portion of the Security so presented.
Section 3.04. Exclusion
of Certain Securities from Eligibility for Selection for Redemption. Unless otherwise provided with respect to any series of Securities,
Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number
in a written statement signed by an authorized Officer of the Company and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Company or (b) an entity specifically identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
Section 3.05. Mandatory
and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is
herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by
the terms of the Securities of any series is herein referred to as an “optional sinking fund payment.” The date on which a
sinking fund payment is to be made is herein referred to as the “sinking fund payment date.”
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities
of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund payment) by the Company or receive
credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by
the Company and delivered to the Trustee for cancellation pursuant to Section 2.11,
(b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by the Company at the option of the Company pursuant to the
terms of such Securities or through any optional sinking fund payment. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each
sinking fund payment date for any series, or such shorter period as shall be acceptable to the Trustee, the Company will deliver to the
Trustee an Officers’ Certificate (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment
of cash and the portion to be satisfied by credit of specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment
of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and
(d) stating whether or not the Company intends to exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order
for the Company to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered
for cancellation pursuant to Section 2.11 to the Trustee with
such Officers’ Certificate (or reasonably promptly thereafter if acceptable to the Trustee). Such Officers’ Certificate shall
be irrevocable and upon its receipt by the Trustee the Company shall become unconditionally obligated to make all the cash payments or
delivery of Securities therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company,
on or before any such sixtieth day, to deliver such Officer’s Certificate and Securities specified in this paragraph, if any, shall
not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Company (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof and (ii) that the Company will make no optional sinking fund payment
with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory
or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking
fund payments made in cash shall exceed $50,000 (or a lesser sum if the Company shall so request with respect to the Securities of any
series), such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at
the sinking fund redemption price thereof together with accrued interest thereon to the date fixed for redemption. If such amount shall
be $50,000 (or such lesser sum) or less and the Company makes no such request then it shall be carried over until a sum in excess of $50,000
(or such lesser sum) is available. The Trustee shall select, in the manner provided in Section 3.02,
for redemption on such sinking fund payment date a sufficient Principal amount of Securities of such series to absorb said cash, as nearly
as may be, and shall (if requested in writing by the Company) inform the Company of the serial numbers of the Securities of such series
(or portions thereof) so selected. Securities shall be excluded from eligibility for redemption under this Section if they are identified
by registration and certificate number in an Officers’ Certificate delivered to the Trustee at least 60 days prior to the sinking
fund payment date as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Company or (b) an
entity specifically identified in such Officers’ Certificate as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company. The Trustee, in the name and at the expense of the Company (or the Company, if it shall so
request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner
provided in Section 3.02 (and with the effect provided in Section 3.03)
for the redemption of Securities of such series in part at the option of the Company. The amount of any sinking fund payments not so applied
or allocated to the redemption of Securities of such series shall be added to the next cash sinking fund payment for such series and,
together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on
the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held
for the payment or redemption of particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient
for the purpose, to the payment of the Principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time
on each sinking fund payment date, the Company shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed
any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the
sinking fund during the continuance of a Default in payment of interest on such Securities or of any Event of Default except that, where
the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such Default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such Default or Event of Default, be deemed to have been collected under
Article 6 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 6.04
or the Default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such moneys shall thereafter be
applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
Article 4
Covenants
Section 4.01. Payment
of Securities. The Company shall pay the Principal of and interest on the Securities on the dates and in the manner provided in the
Securities and this Indenture. The interest on Securities (together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only to the Holders thereof (subject to Section 2.04)
and at the option of the Company may be paid by mailing checks for such interest payable to or upon the written order of such Holders
at their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture
and the Securities of any series to the contrary, if the Company and a Holder of any Security so agree, payments of interest on, and any
portion of the Principal of, such Holder’s Security (other than interest payable at maturity or on any redemption or repayment date
or the final payment of Principal on such Security) shall be made by the Paying Agent, upon receipt from the Company of immediately available
funds by 11:00 A.M., New York City time (or such other time as may be agreed to between the Company and the Paying Agent), directly to
the Holder of such Security (by Federal funds wire transfer or otherwise) if the Holder has delivered written instructions to the Trustee
15 days prior to such payment date requesting that such payment will be so made and designating the bank account to which such payments
shall be so made and in the case of payments of Principal, surrenders the same to the Trustee in exchange for a Security or Securities
aggregating the same Principal amount as the unredeemed Principal amount of the Securities surrendered. The Trustee shall be entitled
to rely on the last instruction delivered by the Holder pursuant to this Section 4.01
unless a new instruction is delivered 15 days prior to a payment date. The Company will indemnify and hold each of the Trustee and any
Paying Agent harmless against any loss, liability or expense (including attorneys’ fees) resulting from any act or omission to act
on the part of the Company or any such Holder in connection with any such agreement or from making any payment in accordance with any
such agreement.
The Company shall pay interest on overdue Principal,
and interest on overdue installments of interest, to the extent lawful, at the rate per annum specified in the Securities.
Section 4.02. Maintenance
of Office or Agency. The Company will maintain in the United States of America, an office or agency where Securities may be surrendered
for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect
of the Securities and this Indenture may be served. The Company hereby initially designates [ ], as such office or agency of the Company.
The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 10.02.
The Company may also from time to time designate
one or more other offices or agencies where the Securities of any series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the United States of America for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office
or agency.
Section 4.03. Securityholders’
Lists. The Company will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require
of the names and addresses of the holders of the Securities pursuant to Section 312 of the Trust Indenture Act (a) semi-annually
not more than 15 days after each record date for the payment of semi-annual interest on the Securities, as hereinabove specified, as of
such record date, and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company
of any such request as of a date not more than 15 days prior to the time such information is furnished.
Section 4.04. Certificate
to Trustee. The Company will furnish to the Trustee annually, on or before a date not more than four months after the end of its fiscal
year (which, on the date hereof, is a calendar year), a brief certificate (which need not contain the statements required by Section 10.04)
from its principal executive, financial or accounting officer as to his or her knowledge of the compliance of the Company with all conditions
and covenants under this Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided
under this Indenture) which certificate shall comply with the requirements of the Trust Indenture Act.
Section 4.05. Reports
by the Company. The Company covenants to file with the Trustee, within 15 days after the Company files the same with the Commission,
copies of the annual reports and of the information, documents, and other reports which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act.
Section 4.06. Additional
Amounts. If the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first interest
payment date with respect to that series of Securities and at least 10 days prior to each date of payment of Principal of or interest
on the Securities of that series if there has been a change with respect to the matters set forth in the below-mentioned Officers’
Certificate, the Company shall furnish to the Trustee and the principal paying agent, if other than the Trustee, an Officers’ Certificate
instructing the Trustee and such paying agent whether such payment of Principal of or interest on the Securities of that series shall
be made to Holders of the Securities of that series without withholding or deduction for or on account of any tax, assessment or other
governmental charge described in the Securities of that series. If any such withholding or deduction shall be required, then such Officers’
Certificate shall specify by country the amount, if any, required to be withheld or deducted on such payments to such Holders and shall
certify the fact that additional amounts will be payable and the amounts so payable to each Holder, and the Company shall pay to the Trustee
or such paying agent the additional amounts required to be paid by this Section. The Company covenants to indemnify the Trustee and any
paying agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate
furnished pursuant to this Section.
Whenever in this Indenture there is mentioned,
in any context, the payment of the Principal of or interest or any other amounts on, or in respect of, any Security of any series, such
mention shall be deemed to include mention of the payment of additional amounts provided by the terms of such series established hereby
or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to
such terms, and express mention of the payment of additional amounts (if applicable) in any provision hereof shall not be construed as
excluding the payment of additional amounts in those provisions hereof where such express mention is not made.
Article 5
Successor Corporation
Section 5.01. When
Company May Merge, Etc. Unless otherwise provided pursuant to Section 2.03
in connection with the establishment of a series, the Company shall not consolidate or combine with, merge with or into, directly or indirectly,
or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its property and assets to any Person or
Persons in a single transaction or through a series of transactions unless:
(a) the
Company shall be the continuing Person or, if the Company is not the continuing Person, the resulting, surviving or transferee Person
(the “Surviving Entity”) is a company organized and existing under the laws of the United States of America or any
State or territory thereof or under the laws of Canada or any province thereof, the United Kingdom, any member state of the European Union
as in effect on the date of this Indenture, Bermuda, the Cayman Islands, any Channel Island or Switzerland;
(b) the
Surviving Entity shall expressly assume all of the Company’s obligations under the Securities and this Indenture, and shall, if
required by law to effectuate the assumption, execute supplemental indentures which shall be delivered to the Trustee and shall be in
form and substance reasonably satisfactory to the Trustee;
(c) immediately
after giving effect to such transaction or series of transactions on a pro forma basis, no Default has occurred and is continuing; and
(d) the
Company or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel stating that
(x) the transaction or series of transactions and such supplemental indenture, if any, complies with this Section 5.01,
(y) such supplemental indenture (if any) constitutes the legal, valid and binding obligation of the Company and such Surviving Entity
enforceable against such Surviving Entity in accordance with its terms, subject to customary exceptions and (z) all conditions precedent
in this Indenture relating to the transaction or series of transactions have been satisfied.
Section 5.02. Successor
Substituted. Upon any consolidation, combination or merger, or any sale, assignment, conveyance, transfer, lease or other disposition
of all or substantially all of the property and assets of the Company in accordance with Section 5.01
of this Indenture, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such Surviving Entity had been named as the Company herein and thereafter the predecessor
Person, except in the case of (x) a lease or (y) any sale, assignment, conveyance, transfer, lease or other disposition to one
or more Subsidiaries of the Company, shall be discharged from all obligations and covenants under this Indenture and the Securities.
Article 6
Default and Remedies
Section 6.01. Events
of Default. An “Event of Default” shall occur with respect to the Securities of any series if:
(a) the
Company defaults in the payment of the Principal of any Security of such series when the same becomes due and payable at maturity, upon
acceleration, redemption or mandatory repurchase, including as a sinking fund installment, or otherwise;
(b) the
Company defaults in the payment of interest on any Security of such series when the same becomes due and payable, and such default continues
for a period of 30 days;
(c) the
Company defaults in the performance of or breaches any other covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series (other than a covenant or agreement in respect of which noncompliance by the
Company would otherwise be an Event of Default) and such default or breach continues for a period of 90 consecutive days or more after
written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of 25% or more in aggregate Principal amount
of the Securities of all series affected thereby specifying such default or breach and requiring it to be remedied and stating that such
notice is a “Notice of Default” hereunder;
(d) a
court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property or ordering the winding
up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(e) the
Company (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect,
or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or for all
or substantially all of the property and assets of the Company or (iii) effects any general assignment for the benefit of creditors;
or
(f) any
other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
Section 6.02. Acceleration.
(a) If an Event of Default other than as described in clauses (d) or
(e) of Section 6.01
with respect to the Securities of any series then outstanding occurs and is continuing, then, and in each and every such case, except
for any series of Securities the Principal of which shall have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate Principal amount of the Securities of all such series then outstanding hereunder in respect of which an Event
of Default has occurred (all such series voting together as a single class) by notice in writing to the Company (and to the Trustee if
given by Securityholders), may declare the entire Principal (or, if the Securities of any such series are Original Issue Discount Securities,
such portion of the Principal amount as may be specified in the terms of such series established pursuant to Section 2.03)
of all Securities of the affected series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
(b) If
an Event of Default described in clause (d) or (e) of
Section 6.01 occurs and is continuing, then the Principal amount
(or, if any Securities are Original Issue Discount Securities, such portion of the Principal as may be specified in the terms thereof
established pursuant to Section 2.03) of all the Securities
then outstanding and interest accrued thereon, if any, shall be and become immediately due and payable, without any declaration, notice
or other action by any Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject
to the condition that if, at any time after the Principal (or, if the Securities are Original Issue Discount Securities, such portion
of the Principal as may be specified in the terms thereof established pursuant to Section 2.03)
of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared or become due and payable,
and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of each
such series (or of all the Securities, as the case may be) and the Principal of any and all Securities of each such series (or of all
the Securities, as the case may be) which shall have become due otherwise than by acceleration (with interest upon such Principal and,
to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate
as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07,
and if any and all Events of Default under the Indenture, other than the non-payment of the Principal of and interest on Securities which
shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every such
case the Holders of a majority in aggregate Principal amount of all the then outstanding Securities of all such series that have been
accelerated (voting as a single class), by written notice to the Company and to the Trustee, may waive all defaults with respect to all
such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but
no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion
of the Principal of any Original Issue Discount Securities shall have been accelerated and declared or become due and payable pursuant
to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the Principal
amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the Principal thereof
as shall be due and payable as a result of such acceleration, and payment of such portion of the Principal thereof as shall be due and
payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute
payment in full of such Original Issue Discount Securities.
Section 6.03. Other
Remedies. If a payment default or an Event of Default with respect to the Securities of any series occurs and is continuing, the Trustee
may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law or in equity to collect the payment
of Principal of and interest on the Securities of such series or to enforce the performance of any provision of the Securities of such
series or this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the Securities or does not produce any of them in the proceeding.
Section 6.04. Waiver
of Past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in Principal amount
(or, if the Securities are Original Issue Discount Securities, such portion of the Principal as is then accelerable under Section 6.02)
of the outstanding Securities of all series affected (voting as a single class), by notice to the Trustee, may waive an existing Default
or Event of Default with respect to the Securities of such series and its consequences, except a Default in the payment of Principal of
or interest on any Security as specified in clauses (a) or (b) of
Section 6.01 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Security affected.
Upon any such waiver, such Default shall cease
to exist, and any Event of Default with respect to the Securities of such series 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 Event of Default or impair
any right consequent thereto.
Section 6.05. Control
by Majority. Subject to Sections 7.01 and 7.02(e),
the Holders of at least a majority in aggregate Principal amount (or, if any Securities are Original Issue Discount Securities, such portion
of the Principal as is then accelerable under Section 6.02)
of the outstanding Securities of all series affected (voting as a single class) may 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 by this Indenture; provided, that the Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the Trustee determines in good faith may be unduly prejudicial to
the rights of Holders not joining in the giving of such direction; and provided further, that the Trustee may take any other action
it deems proper that is not inconsistent with any directions received from Holders of Securities pursuant to this Section 6.05.
Section 6.06. Limitation
on Suits. No Holder of any Security of any series may institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Securities of such series, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such
Holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of such series;
(b) the
Holders of at least 25% in aggregate Principal amount of outstanding Securities of all such series affected 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 reasonably satisfactory to it against any costs, liabilities or expenses
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) during
such 60-day period, the Holders of a majority in aggregate Principal amount of the outstanding Securities of all such affected series
have not given the Trustee a direction that is inconsistent with such written request.
A Holder may not use this Indenture to prejudice
the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07. Rights
of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive
payment of Principal of or interest, if any, on such Holder’s Security on or after the respective due dates expressed on such Security,
or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without
the consent of such Holder.
Section 6.08. Collection
Suit by Trustee. If an Event of Default with respect to the Securities of any series in payment of Principal or interest specified
in clause (a) or (b) of
Section 6.01 occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company for the whole amount (or such portion thereof as specified
in the terms established pursuant to Section 2.03 of Original
Issue Discount Securities) of Principal of, and accrued interest remaining unpaid on, together with interest on overdue Principal of,
and, to the extent that payment of such interest is lawful, interest on overdue installments of interest on, the Securities of such series,
in each case at the rate or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, and such
further amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07.
Section 6.09. Trustee
May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for amounts due the Trustee under Section 7.07)
and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor on the Securities), its creditors or
its property and shall be entitled and empowered to collect and receive any moneys, securities or other property payable or deliverable
upon conversion or exchange of the Securities or upon 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 to it under Section 7.07.
Nothing herein contained shall be deemed to empower 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 6.10. Application
of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of the Securities of any series shall be
applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of
Principal or interest, upon presentation of the several Securities in respect of which moneys have been collected and noting thereon the
payment, or issuing Securities of such series and tenor in reduced Principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.07 applicable to the Securities of such series
in respect of which moneys have been collected;
SECOND: In case the Principal of the Securities
of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest
on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably
to the persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities
of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of such series for Principal and interest, with interest upon the overdue Principal,
and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series;
and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then
to the payment of such Principal and interest or Yield to Maturity, without preference or priority of Principal over interest or Yield
to Maturity, or of interest or Yield to Maturity over Principal, or of any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such series, ratably to the aggregate of such Principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any,
to the Company or any other person lawfully entitled thereto.
Section 6.11. Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
to their former positions hereunder and thereafter all rights and remedies of the Company, Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 6.12. Undertaking
for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, in either case in respect to the Securities of any series, a court may require any party litigant
in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant (other than the Trustee) in the suit having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Section 6.12
does not apply to a suit by a Holder pursuant to Section 6.07,
a suit instituted by the Trustee or a suit by Holders of more than 10% in Principal amount of the outstanding Securities of such series.
Section 6.13. Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities in Section 2.08, 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 6.14. Delay
or Omission not Waiver. No delay or omission of the Trustee or of any Holder 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 6 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.
Article 7
Trustee
Section 7.01. General.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act and as set forth herein. Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this
Article 7.
Section 7.02. Certain
Rights of Trustee. Subject to Trust Indenture Act Sections 315(a) through (d):
(a) the
Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, Officers’ Certificate,
Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
person or persons. The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit;
(b) before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel, which shall conform
to Section 10.04 and shall cover such other matters as the Trustee
may reasonably request. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate
or opinion. Subject to Sections 7.01 and 7.02,
whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(c) the
Trustee may act through its attorneys and agents not regularly in its employ and shall not be responsible for the misconduct or negligence
of any agent or attorney appointed with due care;
(d) any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate
(unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee
by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction
of any of the Holders, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against
any costs, expenses or liabilities that might be incurred by it in compliance with such request or direction;
(f) the
Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights
or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance with Section 6.05
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;
(g) the
Trustee may consult with counsel and the written 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; and
(h) prior
to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any resolution, certificate, Officers’ Certificate, Opinion
of Counsel, Board Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in writing so to do by the Holders of not less than a majority in
aggregate Principal amount of the Securities of all series affected then outstanding; provided that, if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to proceeding.
Section 7.03. Individual
Rights of Trustee. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with
like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311. For purposes of Trust Indenture Act
Section 311(b)(4) and (6), the following terms shall mean:
(a) “cash
transaction” means any transaction in which full payment for goods or securities sold is made within seven days after delivery
of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “self-liquidating
paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company
for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which
is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received by the
Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
Section 7.04. Trustee’s
Disclaimer. The recitals contained herein and in the Securities (except the Trustee’s certificate of authentication) shall be
taken as statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the correctness of the same. Neither
the Trustee nor any of its agents (a) makes any representation as to the validity or adequacy of this Indenture or the Securities
and (b) shall be accountable for the Company’s use or application of the proceeds from the Securities.
Section 7.05. Notice
of Default. If any Default with respect to the Securities of any series occurs and is continuing and if such Default is known to the
actual knowledge of a Responsible Officer with the Corporate Trust Office of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs to all Holders of Securities of such series in the manner and to
the extent provided in Section 313(a) of the Trust Indenture Act, unless such Default shall have been cured or waived before
the mailing or publication of such notice; provided, however, that, except in the case of a Default in the payment of the
Principal of or interest on any Security, the Trustee shall be protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
Section 7.06. Reports
by Trustee to Holders. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Trustee shall, within 60 days after each May 15 following the date of this Indenture, deliver to Holders
a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.
Section 7.07. Compensation
and Indemnity. The Company shall pay to the Trustee such compensation as shall be agreed upon in writing from time to time for its
services. The compensation of the Trustee shall not be limited by any law on compensation of a Trustee of an express trust. The Company
shall reimburse the Trustee and any predecessor Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee or such predecessor Trustee. Such expenses shall include the reasonable compensation and expenses of the
Trustee’s or such predecessor Trustee’s agents, counsel and other persons not regularly in their employ.
The Company shall indemnify the Trustee and any
predecessor Trustee for, and hold them harmless against, any loss or liability or expense incurred by them without negligence or bad faith
on their part arising out of or in connection with the acceptance or administration of this Indenture and the Securities or the issuance
of the Securities or of series thereof or the trusts hereunder and the performance of duties under this Indenture and the Securities,
including the costs and expenses of defending themselves against or investigating any claim or liability and of complying with any process
served upon them or any of their officers in connection with the exercise or performance of any of their powers or duties under this Indenture
and the Securities.
To secure the Company’s payment obligations
in this Section 7.07, the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in
trust to pay Principal of, and interest on particular Securities.
The obligations of the Company under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge
of this Indenture or the rejection or termination of this Indenture under bankruptcy law. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim. Without prejudice to
any other rights available to the Trustee under applicable law, if the Trustee renders services and incurs expenses following an Event
of Default under Section 6.01(d) or Section 6.01(e) hereof,
the parties hereto and the holders by their acceptance of the Securities hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law.
Section 7.08. Replacement
of Trustee. A resignation or removal of the Trustee as Trustee with respect to the Securities of any series and appointment of a successor
Trustee as Trustee with respect to the Securities of any series shall become effective only upon the successor Trustee’s acceptance
of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect
to the Securities of any series at any time by so notifying the Company in writing. The Holders of a majority in Principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee with respect to the Securities of such series by so notifying the
Trustee in writing and may appoint a successor Trustee with respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the Trustee is no longer eligible under Section 7.11
of this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public officer takes charge
of the Trustee or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee
with respect to the Securities of any series, or if a vacancy exists in the office of Trustee with respect to the Securities of any series
for any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within one year after the successor Trustee
takes office, the Holders of a majority in Principal amount of the outstanding Securities of such series may appoint a successor Trustee
in respect of such Securities to replace the successor Trustee appointed by the Company. If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by Section 7.09
within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in Principal
amount of the outstanding Securities of such series may petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect thereto.
The Company shall give notice of any resignation
and any removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee in respect of
the Securities of such series to all Holders of Securities of such series. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with
respect to the Securities of any series pursuant to this Section 7.08
and Section 7.09, the Company’s obligations under Section 7.07
shall continue for the benefit of the retiring Trustee.
Section 7.09. Acceptance
of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such
successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and subject to the
lien provided for in Section 7.07, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be eligible under this Article and qualified under Section 310(b) of
the Trust Indenture Act.
Section 7.10. 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 or national banking association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named
as the Trustee herein.
Section 7.11. Eligibility.
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Section 310(a). The Trustee shall
have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.
Section 7.12. Money
Held in Trust. The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law and
except for money held in trust under Article 8 of this Indenture.
Article 8
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 8.01. Satisfaction
and Discharge of Indenture. If at any time (a) (i) all Securities of any series issued that have been authenticated and
delivered have been delivered by the Company to the Trustee for cancellation (other than Securities of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section 2.08);
or (ii) all the Securities of any series issued that have not been delivered by the Company to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by such Trustee in the Company’s
name and at the Company’s expense, the Company shall have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the Company in accordance with Section 8.04)
or U.S. Government Obligations, maturing as to principal and interest in such amounts and at such times as will insure (without consideration
of the reinvestment of such interest) the availability of cash, or a combination thereof, sufficient to pay at maturity or upon redemption
all Securities of such series (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.08) not
theretofore delivered to the Trustee for cancellation, including Principal and interest due or to become due on or prior to such date
of maturity or redemption as the case may be; (b) the Company has paid or caused to be paid all other sums then due and payable under
this Indenture; and (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture pursuant to this Section 8.01
have been complied with, then this Indenture shall cease to be of further effect with respect to Securities of such series (except as
to (i) rights of registration of transfer and exchange of securities of such series, and the Company’s right of optional redemption,
if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of holders to receive payments
of Principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration) and remaining rights
of the holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations and immunities of the Trustee hereunder
and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them), and the Trustee, on demand of the Company accompanied by an Officers’ Certificate and an
Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such series; provided that the rights of Holders of the Securities to receive amounts in respect
of Principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable mandatory rules or
policies of any securities exchange upon which the Securities are listed. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of such series.
Section 8.02. Application
by Trustee of Funds Deposited for Payment of Securities. Subject to Section 8.04,
all moneys (including U.S. Government Obligations and the proceeds thereof) deposited with the Trustee pursuant to Section 8.01,
Section 8.05 or Section 8.06
shall be held in trust and applied by it to the payment, either directly or through any paying agent to the Holders of the particular
Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and
to become due thereon for Principal and interest; but such money need not be segregated from other funds except to the extent required
by law.
Section 8.03. Repayment
of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
Section 8.04. Return
of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the Principal of or interest on any Security of any series and not applied but remaining unclaimed for two years
after the date upon which such Principal or interest shall have become due and payable, shall, upon the written request of the Company
and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company
by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Company for any payment
which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon
cease.
Section 8.05. Defeasance
and Discharge of Indenture. The Company shall be deemed to have paid and shall be discharged from any and all obligations in respect
of the Securities of any series, after the deposit referred to in clause (i) hereof
has been made, and the provisions of this Indenture shall no longer be in effect with respect to the Securities of such series (and the
Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except as to: (a) rights of Holders
of the Securities of such series to receive payments of Principal thereof, premium thereto, and interest thereon, upon the original stated
due dates therefor, (b) the Company’s obligations with respect to the issuance of temporary Securities and the registration
of transfer with respect to the Securities of such series, the Company’s right of optional redemption, substitution of mutilated,
defaced, destroyed, lost or stolen Securities of such series and the maintenance of an office or agency for payment for security payments
held in trust pursuant to clause (i) hereof, (c) the rights,
obligations and immunities of the Trustee hereunder, and (d) the defeasance provisions contained in Article 8
of this Indenture; provided that the following conditions shall have been satisfied:
(i) with
reference to this Section 8.05 the Company irrevocably has deposited
or caused to be deposited with the Trustee (or another qualifying trustee satisfying the requirements of Section 7.11)
as trust funds in trust, for the purposes of making the following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series, (A) money in an amount, (B) U.S. Government Obligations which
through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before
the due date of any payment referred to in subclause (x) or (y) of this clause (i),
or (C) a combination thereof, in each case sufficient, in the written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without consideration of reinvestment
and after payment of all federal, state and local taxes or other charges and assessments in respect thereof, and which shall be applied
by the Trustee to pay and discharge (x) all of the Principal of, premium, if any, and each installment of interest on the outstanding
Securities of such series on the maturity or due dates thereof or if the Company has made irrevocable arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee, the redemption date, as the case may be, and (y) any mandatory sinking
fund payments or analogous 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 Securities of such series and the Indenture with respect to the Securities of such series;
(ii) the
Company has delivered to the Trustee an Opinion of Counsel to the effect that, under then applicable U.S. federal income tax law, Holders
of Securities of such series will not recognize gain or loss for U.S. federal income tax purposes as a result of the Company’s exercise
of its option under this Section 8.05 and will be subject to
U.S. 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;
(iii) no
Default under either clause (d) or clause (e) of
Section 6.01 shall have occurred and be continuing at such time;
(iv) if
at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance and discharge;
(v) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge under this Section 8.05
have been complied with; and
(vi) if
the Securities of such series are to be redeemed prior to the final maturity thereof (other than from mandatory sinking fund payments
or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee shall have been made.
Section 8.06. Defeasance
of Certain Obligations. The Company may omit to comply with any term, provision or condition set forth in, and this Indenture will
no longer be in effect with respect to, any covenant established pursuant to Section 2.03(s) and
clause (c) and clause (f) (with
respect to any covenants established pursuant to Section 2.03(s))
of Section 6.01 shall be deemed not to constitute a Default
or an Event of Default with respect to Securities of any series, if:
(a) with
reference to this Section 8.06, the Company has irrevocably
deposited or caused to be deposited with the Trustee (or another qualifying trustee satisfying the requirements of Section 7.11)
as trust funds in trust, for the purposes of making the following payments, specifically pledged as security for, and dedicated solely
to, the benefits of the Holders of the Securities of such series, (i) money in an amount, (ii) U.S. Government Obligations which
through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before
the due date of any payment referred to in subclause (x) or (y) of this clause (a),
or (iii) a combination thereof, in each case sufficient, in the written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without consideration of reinvestment
and after payment of all federal, state and local taxes or other charges and assessments in respect thereof, and which shall be applied
by the Trustee to pay and discharge (x) all of the Principal of, premium, if any, and each installment of interest on the outstanding
Securities of such series on the maturity or due dates thereof or if the Company has made irrevocable arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee, the redemption date, as the case may be, and (y) any mandatory sinking
fund payments or analogous 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 the Securities of such series and the Indenture with respect to the Securities of such series;
(b) the
Company has delivered to the Trustee an Opinion of Counsel to the effect that Holders of Securities of such series will not recognize
gain or loss for U.S. federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.06
and will be subject to U.S. 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 and defeasance had not occurred;
(c) no
Default with respect to the outstanding Securities of such series shall have occurred and be continuing at the time of such deposit immediately
after giving effect to such deposit;
(d) if
at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance and discharge;
(e) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under this Section have been complied with; and
(f) if
the Securities of such series are to be redeemed prior to the final maturity thereof (other than from mandatory sinking fund payments
or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee shall have been made.
Section 8.07. Reinstatement.
If the Trustee or paying agent is unable to apply any monies or U.S. Government Obligations in accordance with Article 8
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, the Company’s obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article until such time as the Trustee or paying agent is permitted
to apply all such monies or U.S. Government Obligations in accordance with Article 8;
provided, however, that if the Company has made any payment of Principal of or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment
from the monies or U.S. Government Obligations held by the Trustee or paying agent.
Section 8.08. Indemnity.
The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.08
and Section 8.02, the “Trustee”) against
any tax, fee or other charge, imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 8.01,
8.05 or 8.06
or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account
of the Holders of the Securities.
Section 8.09. Excess
Funds. Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon request of the Company, any money or U.S. Government Obligations
(or other property and any proceeds therefrom) held by it as provided in Section 8.01,
8.05 or 8.06
which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a discharge or defeasance,
as applicable, in accordance with this Article 8.
Section 8.10. Qualifying
Trustee. Any trustee appointed pursuant to Section 8.05
or 8.06 for the purpose of holding money or U.S. Government Obligations
deposited pursuant to such Sections shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee
a certificate, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein
to the related defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee.
Article 9
Amendments, Supplements and Waivers
Section 9.01. Without
Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of any series without notice
to or the consent of any Holder:
(a) to
cure any ambiguity, defect or inconsistency in this Indenture;
(b) to
comply with Article 5;
(c) to
maintain the qualification of this Indenture under the Trust Indenture Act;
(d) to
evidence and provide for the acceptance of appointment hereunder with respect to the Securities of any or all series by a successor Trustee
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, pursuant to the requirements of Section 7.09;
(e) to
establish the form or forms or terms of Securities of any series as permitted by Section 2.03;
(f) to
provide for uncertificated Securities and to make all appropriate changes for such purpose;
(g) to
conform any provision to the applicable corresponding provision set forth in the offering document for the offering of such series of
Securities; and
(h) to
make any change that does not materially and adversely affect the rights of any Holder.
Section 9.02. With
Consent of Holders. Subject to Sections 6.04 and 6.07,
without prior notice to any Holders, the Company and the Trustee may amend this Indenture and the Securities of any series with the written
consent of the Holders of a majority in Principal amount of the outstanding Securities of each series affected by such amendment (all
such series voting together as a single class), and the Holders of a majority in Principal amount of the outstanding Securities of each
series affected thereby (all such series voting together as a single class) by written notice to the Trustee may waive future compliance
by the Company with any provision of this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.02,
without the consent of each Holder affected thereby, an amendment or waiver, including a waiver pursuant to Section 6.04,
may not:
(a) change
the stated maturity of the Principal of, or any sinking fund obligation or any installment of interest on, such Holder’s Security;
(b) reduce
the Principal amount thereof or the rate of interest thereon (including any amount in respect of original issue discount);
(c) reduce
the above stated percentage of outstanding Securities the consent of whose holders is necessary to modify or amend the Indenture with
respect to the Securities of the relevant series; and
(d) reduce
the percentage in Principal amount of outstanding Securities of the relevant series the consent of whose Holders is required for any supplemental
indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults and their consequences provided
for in this Indenture.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of Holders of Securities of such series with respect to such covenant or provision, shall
be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of any
Holder under this Section 9.02 to approve the particular form
of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under
this Section 9.02 becomes effective, the Company shall give
to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. The Company will mail supplemental indentures
to Holders upon request. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
Section 9.03. Revocation
and Effect of Consent. Until an amendment or waiver becomes effective, a consent to it by a Holder 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 Security of the consenting
Holder, 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 its Security or portion of its Security. Such revocation shall be effective only if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of written consents from the requisite Holders of outstanding Securities
affected thereby.
The Company may, but shall not be obligated to,
fix a record date (which may be not less than five nor more than 60 days prior to the solicitation of consents) for the purpose of determining
the Holders of the Securities of any series affected entitled to consent to any amendment, supplement or waiver. If a record date is fixed,
then, notwithstanding the immediately preceding paragraph, those Persons who were such Holders at such record date (or their duly designated
proxies) and only those Persons shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously
given, whether or not such Persons continue to be such Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes
effective with respect to the Securities of any series affected thereby, it shall bind every Holder of such Securities unless it is of
the type described in any of clauses (a) through (d) of
Section 9.02. In case of an amendment or waiver of the type
described in clauses (a) through (d) of
Section 9.02, the amendment or waiver shall bind each such Holder
who has consented to it and every subsequent Holder of a Security that evidences the same indebtedness as the Security of the consenting
Holder.
Section 9.04. Notation
on or Exchange of Securities. If an amendment, supplement or waiver changes the terms of any Security, the Trustee may require the
Holder thereof to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on any Security of such series thereafter authenticated. Alternatively,
if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a
new Security of the same series and tenor that reflects the changed terms.
Section 9.05. Trustee
to Sign Amendments, Etc. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9
is authorized or permitted by this Indenture, stating that all requisite consents have been obtained or that no consents are required
and stating that such supplemental indenture constitutes the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.06. Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article 9
shall conform to the requirements of the Trust Indenture Act as then in effect.
Article 10
Miscellaneous
Section 10.01. Trust
Indenture Act of 1939. This Indenture shall incorporate and be governed by the provisions of the Trust Indenture Act that are required
to be part of and to govern indentures qualified under the Trust Indenture Act.
Section 10.02. Notices.
Any notice or communication shall be sufficiently given if written and (a) if delivered in person, when received or (b) if mailed
by first class mail, five days after mailing, or (c) as between the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:
| if to the Company: |
| |
| |
Amer Sports, Inc. |
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Konepajankuja 6, P.O. Box 1000 |
| |
FI-00511, Helsinki, Finland |
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Attention: |
Andrew Page, Jutta Karlsson |
| |
| if to the Trustee: |
| |
| |
[ ] |
| |
[ ] |
| |
[ ] |
| |
Facsimile: |
[ ] |
| |
Attention: |
[ ] |
| |
The Company or the Trustee by written notice to
the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently
given to Holders by mailing to such Holders at their addresses as they shall appear on the Security Register. Notice mailed shall be sufficiently
given if so mailed within the time prescribed. Copies of any such communication or notice to a Holder shall also be mailed to the Trustee
and each Agent at the same time.
Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Except as otherwise provided in this Indenture,
if a notice or communication is mailed in the manner provided in this Section 10.02,
it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case it shall be impracticable to give notice
as herein contemplated, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 10.03. Certificate
and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
(a) an
Officers’ 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 10.04. 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 the certificate required by Section 4.04)
shall include:
(a) a
statement that each person signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in such certificate
or opinion is based;
(c) a
statement that, in the opinion of each 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 each such person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates
of public officials.
Section 10.05. Evidence
of Ownership. The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the person in whose name any
Security shall be registered upon the Security Register for such series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on
account of the Principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary.
Section 10.06. Rules by
Trustee, Paying Agent or Registrar. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.
Section 10.07. Payment
Date Other Than a Business Day. Except as otherwise provided with respect to a series of Securities, if any date for payment of Principal
or interest on any Security shall not be a Business Day at any place of payment, then payment of Principal of or interest on such Security,
as the case may be, need not be made on such date, but may be made on the next succeeding Business Day at any place of payment with the
same force and effect as if made on such date and no interest shall accrue in respect of such payment for the period from and after such
date.
Section 10.08. Governing
Law. The laws of the State of New York shall govern this Indenture and the Securities.
Section 10.09. No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture or loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture or agreement may not be used to interpret this Indenture.
Section 10.10. Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 10.11. Duplicate
Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 10.12. Separability.
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 10.13. Table
of Contents, Headings, Etc. The Table of Contents 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 and provisions
hereof.
Section 10.14. Incorporators,
Stockholders, Officers and Directors of Company Exempt from Individual Liability. No recourse under or upon any obligation, covenant
or agreement contained in this Indenture or any indenture supplemental hereto, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, officer, director or employee,
as such, of the Company or of any successor, either directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance of the Securities by the holders thereof and as part of the consideration for the
issue of the Securities.
Section 10.15. Judgment
Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in respect of the Principal of or interest on the Securities
of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment
Currency on the Business Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant
to any judgment (whether or not entered in accordance with subsection (a)),
in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture.
Section 10.16. Waiver
of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 10.17. Force
Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the date first written above.
| |
AMER SPORTS, INC.
as the Company |
| |
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| |
By: |
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|
Name: |
| |
|
Title: |
| |
[ ]
as the Trustee |
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By: |
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Name: |
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Title: |
Exhibit 5.1
| CONYERS
DILL & PEARMAN
29th Floor
One Exchange Square
8 Connaught Place
Central
Hong Kong
T +852 2524 7106 | F +852 2845 9268
conyers.com
|
7 March 2025
Matter No.: 1006125/110671873v2
(852) 2842 9521
Flora.Wong@conyers.com
Amer Sports, Inc.
Cricket Square, Hutchins Drive
P.O. Box 2681
Grand Cayman KY1-1111
Cayman Islands
Dear Sir/ Madam,
Re: Amer Sports, Inc. (the “Company”)
We have acted as special legal counsel in the
Cayman Islands to the Company in connection with a registration statement on Form F-3 filed with the U.S. Securities and Exchange
Commission (the "Commission") on 7 March 2025, including the prospectus set forth therein (the "Registration
Statement", which term does not include any other document or agreement whether or not specifically referred to therein or attached
as an exhibit or schedule thereto), relating to the shelf registration under the U.S. Securities Act of 1933, as amended, (the "Securities
Act") of (i) ordinary shares, par value EUR0.0300580119630888 each ("Ordinary Shares", which term includes
any ordinary shares to be issued pursuant to the conversion, exchange or exercise of any other Securities), (ii) debt securities
of the Company, in one or more series (“Debt Securities”) (the Ordinary Shares and Debt Securities collectively, the
”Securities”) described in the Registration Statement in any combination.
For the purposes of giving this opinion, we have
examined a copy of the following document:
| 1.1. | the Registration Statement. |
We have also reviewed copies of:
| 1.2. | the second amended and restated memorandum of association and the articles of association of the Company,
each certified by the Secretary of the Company on 6 March 2025; |
| 1.3. | resolutions in writing signed by all the
directors of the Company and dated 4 March 2025 (the “Resolutions”); |
| 1.4. | a certificate of good standing issued by the Registry of Companies of the Cayman Islands and dated 6
March 2025 (the “Certificate Date”); and |
| 1.5. | such other documents and made such enquiries as to questions of law as we have deemed necessary in order
to render the opinion set forth below. |
We have assumed:
| 2.1. | the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether
or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken; |
| 2.2. | that where a document has been examined by us in draft form, it will be or has been executed in the form
of that draft and/or the final form of such document will be in the form of that draft, and where a number of drafts of a document have
been examined by us all changes thereto have been marked or otherwise drawn to our attention; |
| 2.3. | the accuracy and completeness of all factual representations made in the Registration Statement and other
documents reviewed by us; |
| 2.4. | that the Resolutions were passed at one or more duly convened, constituted and quorate meetings or by
unanimous written resolutions, remain in full force and effect and have not been rescinded or amended; |
| 2.5. | that there is no provision of the law of any jurisdiction, other than the Cayman Islands, which would
have any implication in relation to the opinions expressed herein; |
| 2.6. | that on the date of allotment (where applicable) and issuance of any Securities by the Company, the Company
is, and after any such allotment and issuance, the Company is and will be able to, pay its debts; |
| 2.7. | that the applicable purchase, underwriting, or similar agreement and any other agreement or other document
relating to any Securities to be offered and sold by the Company will be valid and binding in accordance with its terms pursuant to its
governing law; |
| 2.8. | that neither the Company nor any of its shareholders is a sovereign entity of any state and none of them
is a subsidiary direct or indirect of any sovereign entity or state; |
| 2.9. | that the second amended and restated memorandum and articles of association of the Company will not be
amended in any manner that would affect the opinions expressed herein; |
| 2.10. | that the Company will have sufficient authorised but unissued shares available for the issue of any Ordinary
Shares at the time of issuance, whether as a principal issue or on the conversion, exchange or exercise of any Debt Securities; |
| 2.11. | that the form and terms of any and all Debt Securities, the issuance and sale of any Securities by the
Company, and the Company’s incurrence and performance of its obligations thereunder or in respect thereof (including, without limitation,
its obligations under any related agreement, indenture or supplement thereto) in accordance with the terms thereof will not violate the
second amended and restated memorandum and articles of association of the Company nor any applicable law, regulation, order or decree
in the Cayman Islands; |
| 2.12. | that no invitation has been or will be made by or on behalf of the Company to the public in the Cayman
Islands to subscribe for any Securities; |
| 2.13. | that all necessary corporate action will be taken to authorise and approve any issuance of Securities,
the terms of the offering thereof and related matters, and that the applicable definitive purchase, underwriting or similar agreement,
will be duly approved, executed and delivered by or on behalf of the Company and all other parties thereto; |
| 2.14. | that the Debt Securities to be offered and sold will be valid and binding in accordance with their terms
pursuant to the applicable governing law; |
| 2.15. | that the issuance and sale of and payment for the Securities will be in accordance with the applicable
purchase, underwriting or similar agreement duly approved by the board of directors of the Company and/or where so required, the shareholders
of the Company and the Registration Statement (including the prospectus set forth therein and any applicable supplement thereto); |
| 2.16. | the Company has not appointed any restructuring officer and will not have any restructuring officer appointed
at the time of issuance of any Securities or Ordinary Shares issuable upon the conversion, exchange or exercise of any Debt Securities; |
| 2.17. | that, upon the issue of any Ordinary Shares to be sold by the Company, the Company will receive consideration
for the full issue price thereof which shall be equal to at least the par value thereof; and |
| 2.18. | the validity and binding effect under the laws of the United States of America of the Registration Statement
and that the Registration Statement will be duly filed with the Commission. |
| 3.1. | The obligations of the Company in connection with any offer, issuance and sale of any Securities: |
| (a) | will be subject to the laws from time to time in effect relating to bankruptcy, insolvency, liquidation,
possessory liens, rights of set off, reorganisation, merger, consolidation, moratorium bribery, corruption, money laundering, terrorist
financing, proliferation financing or any other laws or legal procedures, whether of a similar nature or otherwise, generally affecting
the rights of creditors as well as applicable international sanctions; |
| (b) | will be subject to statutory limitation of the time within which proceedings may be brought; |
| (c) | will be subject to general principles of equity and, as such, specific performance and injunctive relief,
being equitable remedies, may not be available; |
| (d) | may not be given effect to by a Cayman Islands court, whether or not it was applying the Foreign Laws,
if and to the extent they constitute the payment of an amount which is in the nature of a penalty; |
| (e) | in the case of any applicable purchase, underwriting, or similar agreement and any other agreement or
other document relating to the issue of any Ordinary Shares, may be subject to the common law rules that damages against the Company
are only available where the purchaser of such Ordinary Shares rescinds such agreement; and |
| (f) | may not be given effect by a Cayman Islands court to the extent that they are to be performed in a jurisdiction
outside the Cayman Islands and such performance would be illegal under the laws of that jurisdiction. Notwithstanding any contractual
submission to the exclusive or non-exclusive jurisdiction of specific courts, a Cayman Islands court has inherent discretion to stay or
allow proceedings in the Cayman Islands courts. |
| 3.2. | We express no opinion as to the enforceability of any provision of any document which provides for the
payment of a specified rate of interest on the amount of a judgment after the date of judgment or which purports to fetter the statutory
powers of the Company. |
| 3.3. | We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other
than the Cayman Islands. This opinion is to be governed by and construed in accordance with the laws of the Cayman Islands and is limited
to and is given on the basis of the current law and practice in the Cayman Islands. This opinion is issued solely for your benefit and
use in connection with the matter described herein and is not to be relied upon by any other person, firm or entity or in respect of any
other matter. |
On the basis of and subject to the foregoing,
we are of the opinion that:
| 4.1. | The Company is duly incorporated and existing under the law of the Cayman Islands and, based on the Certificate
of Good Standing, is in good standing as at the Certificate Date. Pursuant to the Companies Act (the “Act”), a company
is deemed to be in good standing if all fees and penalties under the Act have been paid and the Registrar of Companies has no knowledge
that the Company is in default under the Act. |
| 4.2. | Upon the due issuance of any Ordinary Shares, and payment of the consideration therefor, such Ordinary
Shares, including any Ordinary Shares to be issued upon conversion, exchange or exercise pursuant to the terms of any Debt Securities,
will be validly issued, fully paid and non-assessable (which term when used herein means that no further sums are required to be paid
by the holders thereof in connection with the issue thereof). |
| 4.3. | Upon the due issuance of any Debt Securities by the Company and payment of the consideration therefor,
such Debt Securities will be validly issued and constitute legal, valid and binding obligations of the Company in accordance with the
terms thereof. |
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the references to our firm under the captions “Legal Matters” and “Enforcement
of Civil Liabilities” in the prospectus forming a part of the Registration Statement. In giving such consent, we do not hereby
admit that we are experts within the meaning of Section 11 of the Securities Act or that we are 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.
Yours faithfully,
/s/ Conyers Dill & Pearman
Exhibit 5.2 and 23.2
 |
Davis Polk & Wardwell llp
450 Lexington Avenue
New York, NY 10017
davispolk.com |
March 7, 2025
OPINION OF DAVIS POLK & WARDWELL LLP
|
Amer Sports, Inc.
Cricket Square, Hutchins Drive
P.O. Box 2681
Grand Cayman KY1-1111
Cayman Islands |
Ladies and Gentlemen:
Amer Sports, Inc., an exempted
company incorporated under the laws of the Cayman Islands (the “Company”) is filing with the Securities and Exchange
Commission a Registration Statement on Form F-3 (the “Registration Statement”) for the purpose of registering
under the Securities Act of 1933, as amended (the “Securities Act”), (a) ordinary shares, par value EUR 0.0300580119630888
per share (the “Class A Shares”) of the Company; and (b) the Company’s debt securities (the “Debt
Securities”), which may be issued pursuant to an indenture to be entered into between the Company and the trustee to be named
therein (the “Trustee”) (the “Indenture”)
We, as your counsel, have examined originals or copies of such documents,
corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of
rendering this opinion.
In rendering the opinions expressed herein, we have, without independent
inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents
submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement
that have not been executed will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine,
(v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of
public officials and officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company
as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions
and qualifications set forth below, we advise you that, in our opinion:
| 1. | When the Indenture and any supplemental indenture to be entered into in connection with the issuance of any Debt Securities have been
duly authorized, executed and delivered by the Trustee and the Company; the specific terms of a particular series of Debt Securities have
been duly authorized and established in accordance with the Indenture; and such Debt Securities have been duly authorized, executed, authenticated,
issued and delivered in accordance with the Indenture and the applicable underwriting or other agreement against payment therefor, such
Debt Securities will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign
laws affecting creditors’ rights, provided that we express no opinion as to (w) the enforceability of any waiver of rights
under any usury or stay law, (x) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law
on the conclusions expressed above, (y) the validity, legally binding effect or enforceability of any section of the Indenture that
requires or relates to adjustments to the conversion rate at a rate or in an amount that a court would determine in the circumstances
under applicable law to be commercially unreasonable or a penalty or forfeiture or (z) the validity, legally binding effect or enforceability
of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Debt Securities to the
extent determined to constitute unearned interest. |
|
Amer Sports, Inc. |
In connection with the opinion expressed above, we have assumed that,
at or prior to the time of the delivery of any such security, (i) the Board of Directors of the Company shall have duly established
the terms of such security and duly authorized the issuance and sale of such security and such authorization shall not have been modified
or rescinded; (ii) the Company is, and shall remain, validly existing as a corporation in good standing under the laws of the Cayman
Islands; (iii) the Registration Statement shall have become effective and such effectiveness shall not have been terminated or rescinded;
(iv) the Indenture and the Debt Securities are each valid, binding and enforceable agreements of each party thereto (other than as
expressly covered above in respect of the Company); and (v) there shall not have occurred any change in law affecting the validity
or enforceability of such security. We have also assumed that the terms of any security whose terms are established subsequent to the
date hereof and the issuance, execution, delivery and performance by the Company of any such security (a) are within its corporate
powers, (b) do not contravene, or constitute a default under, the second amended and restated memorandum and articles of association
or other constitutive documents of the Company, (c) require no action by or in respect of, or filing with, any governmental body,
agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or public policy or
regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon the Company.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of the United States. Insofar as the foregoing opinion involves
matters governed by the laws of the Cayman Islands, we have relied, without independent inquiry or investigation, on the opinion of Conyers
Dill & Pearman Limited, delivered to you today.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and further consent to the reference to our name under the caption “Legal Matters”
in the prospectus, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 7, 2025, with
respect to the consolidated financial statements of Amer Sports, Inc. and subsidiaries, incorporated herein by reference and to the
reference to our firm under the heading “Experts” in the prospectus.
/s/ KPMG AB
Stockholm, Sweden
March 7, 2025
F-3
F-3ASR
EX-FILING FEES
0001988894
Amer Sports, Inc.
0001988894
2025-03-07
2025-03-07
0001988894
1
2025-03-07
2025-03-07
0001988894
2
2025-03-07
2025-03-07
iso4217:USD
xbrli:pure
xbrli:shares
|
Calculation of Filing Fee Tables
|
|
F-3
|
|
Amer Sports, Inc.
|
|
Table 1: Newly Registered and Carry Forward Securities
|
|
|
|
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
Carry Forward Form Type
|
Carry Forward File Number
|
Carry Forward Initial Effective Date
|
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
|
|
Newly Registered Securities
|
|
Fees to be Paid
|
1
|
Equity
|
Ordinary shares, par value EUR 0.0300580119630888 per share
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
2
|
Debt
|
Debt securities
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees Previously Paid
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities
|
|
Carry Forward Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering Amounts:
|
|
$
0.00
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fee Offsets:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Net Fee Due:
|
|
|
|
$
0.00
|
|
|
|
|
|
1
|
In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, Amer Sports, Inc. (the "Company") is deferring payment of all of the registration fee. Registration fees will be paid subsequently on a "pay as you go" basis. The Company will calculate the registration fee applicable to an offer of securities pursuant to this Registration Statement based on the fee payment rate in effect on the date of such fee payment.
An indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be issued at indeterminate prices, including securities that may be issued upon exercise, conversion, settlement or exchange of, any securities offered hereunder.
|
|
|
|
2
|
See Offering Note 1
|
|
|
v3.25.0.1
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v3.25.0.1
Offerings
|
Mar. 07, 2025 |
| Offering: 1 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Ordinary shares, par value EUR 0.0300580119630888 per share
|
| Fee Rate |
0.01531%
|
| Offering Note |
In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, Amer Sports, Inc. (the "Company") is deferring payment of all of the registration fee. Registration fees will be paid subsequently on a "pay as you go" basis. The Company will calculate the registration fee applicable to an offer of securities pursuant to this Registration Statement based on the fee payment rate in effect on the date of such fee payment.
An indeterminate aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be issued at indeterminate prices, including securities that may be issued upon exercise, conversion, settlement or exchange of, any securities offered hereunder.
|
| Offering: 2 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Debt securities
|
| Fee Rate |
0.01531%
|
| Offering Note |
See Offering Note 1
|
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