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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
(date of earliest event reported): May 6, 2024
GXO
LOGISTICS, INC.
(Exact
Name of Registrant as Specified in Charter)
Delaware |
001-40470 |
86-2098312 |
(State
or other jurisdiction
of incorporation) |
(Commission
File Number) |
(I.R.S.
Employer
Identification No.) |
Two
American Lane
Greenwich,
Connecticut |
|
06831 |
(Address of principal executive
offices) |
|
(Zip Code) |
Registrant’s
telephone number, including area code: (203)
489-1287
Not Applicable
(Former name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
|
¨ |
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
¨ |
Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
¨ |
Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
¨ |
Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title
of each class |
Trading
Symbol |
Name
of each exchange on which registered |
Common
stock, $0.01 par value per share |
GXO |
New
York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01. | Entry into a Material Definitive Agreement. |
On
May 6, 2024, GXO Logistics, Inc. (“GXO”) completed its previously announced offering of $1.1 billion in aggregate
principal amount of senior notes, consisting of $600 million in aggregate principal amount of notes due 2029 (the “2029 notes”)
and $500 million in aggregate principal amount of notes due 2034 (the “2034 notes”, and together with the 2029 notes,
the “notes”). The notes were issued pursuant to an indenture dated as of July 2, 2021 (the “Base Indenture”),
as supplemented by the Second Supplemental Indenture dated as of May 6, 2024 (the “Supplemental Indenture”, and the
Base Indenture as amended or supplemented by the Supplemental Indenture, the “Indenture”), in each case between GXO
and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee (the “Trustee”).
The
2029 notes will accrue interest at a rate of 6.250% per year, payable semi-annually in cash in arrears on May 6 and November 6
of each year, beginning on November 6, 2024. The 2029 notes will mature on May 6, 2029, unless earlier repurchased or redeemed, if applicable.
The 2034 notes will accrue interest at a rate of 6.500% per year, payable semi-annually in cash in arrears on May 6 and November 6 of
each year, beginning on November 6, 2024. The 2034 notes will mature on May 6, 2034, unless earlier repurchased or redeemed, if applicable.
The notes have been registered under the Securities
Act of 1933, as amended (the “Act”), pursuant to GXO’s registration statement on Form S- 3ASR (File No. 333-259217)
(the “Registration Statement”), filed with the Securities and Exchange Commission (the “SEC”) and
automatically effective on August 31, 2021 (the “Shelf Registration Statement”). The terms of the notes are further
described in GXO’s prospectus supplement dated April 25, 2024 as filed with the SEC under Rule 424(b)(2) of the Act on April 29,
2024.
GXO may redeem some or all of the notes of each
series at the applicable redemption price, as described in the Supplemental Indenture.
The Indenture contains customary events of default
with respect to the notes, including failure to make required payments, failure to comply with certain agreements or covenants and certain
events of bankruptcy and insolvency. Events of default under the Indenture arising from certain events of bankruptcy or insolvency will
automatically cause the acceleration of the amounts due under the notes. If any other event of default under the Indenture occurs and
is continuing with respect to a series of notes, the Trustee or the holders of at least 25% in aggregate principal amount of the then
outstanding notes of such series may declare the acceleration of the amounts due under the applicable notes.
The notes are GXO’s unsecured, unsubordinated
debt obligations, and rank equally in right of payment with GXO’s other existing and future unsecured, unsubordinated obligations.
GXO intends to use the net proceeds from the sale
of the notes to fund its acquisition of Wincanton plc (“Wincanton”), to fund the redemption, repayment, prepayment
or satisfaction and discharge or other payment in satisfaction of indebtedness of GXO and its subsidiaries, to pay fees and expenses in
respect of the foregoing, and for general corporate purposes.
In certain circumstances set forth in the Supplemental
Indenture relating to the failure of GXO to acquire at least a majority of the issued ordinary share capital of Wincanton on or before
the date that is five (5) Business Days after the Longstop Time (as defined in the Supplemental Indenture) or GXO’s notice to the
Trustee that it will no longer pursue the acquisition of Wincanton, GXO will be required to redeem the notes then outstanding at a redemption
price equal to 101% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the
special mandatory redemption date, in accordance with the terms of the Supplemental Indenture.
Concurrently with the closing of the offering of
the notes, GXO reduced all commitments to zero under the previously announced (i) Bridge Term Loan Credit Agreement, dated as of February
29, 2024, among GXO, the lenders and other parties from time to time party thereto and Bank of America, N.A., as administrative agent
and (ii) Term Loan Credit Agreement, dated as of March 29, 2024, among GXO, the lenders and other parties from time to time party thereto
and Bank of America N.A., as administrative agent.
The foregoing description of the Indenture
does not purport to be complete and is qualified in its entirety by reference to the full text of the Base Indenture and the
Supplemental Indenture (including the forms of the notes included therein), copies of which are filed as Exhibit 4.1 and Exhibit 4.2 hereto, respectively, and are incorporated into
this Item 1.01 by reference.
| Item 2.03. | Creation of a Direct Financial Obligation. |
The information set forth in Item 1.01 of this
Current Report on Form 8-K is incorporated by reference into this Item 2.03.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
Exhibit |
|
Description
of Document |
4.1 |
|
Indenture, dated as of July 2, 2021, among GXO Logistics, Inc. and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association, as Trustee) (incorporated by reference to Exhibit 4.1 to GXO’s Amendment No. 3 to the Registration Statement on Form 10 (Commission file no. 001-40470) filed with the SEC on July 7, 2021) |
4.2 |
|
Second Supplemental
Indenture, dated as of May 6, 2024, among GXO Logistics, Inc. and Computershare Trust Company, N.A. (as successor to Wells Fargo
Bank, National Association), as Trustee (including the forms of the notes) |
5.1 |
|
Opinion of Wachtell, Lipton, Rosen & Katz |
23.1 |
|
Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.1 hereto) |
104.1 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
Forward-looking Statements
This Current Report on Form 8-K includes forward-looking statements
within the meaning of Section 27A of the Act, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements other
than statements of historical fact are, or may be deemed to be, forward-looking statements. In some cases, forward-looking statements
can be identified by the use of forward-looking terms such as “anticipate,” “estimate,” “believe,”
“continue,” “could,” “intend,” “may,” “plan,” “potential,” “predict,”
“should,” “will,” “expect,” “objective,” “projection,” “forecast,”
“goal,” “guidance,” “outlook,” “effort,” “target,” “trajectory”
or the negative of these terms or other comparable terms. However, the absence of these words does not mean that the statements are not
forward-looking. These forward-looking statements are based on certain assumptions and analyses made by GXO in light of its experience
and its perception of historical trends, current conditions and expected future developments, as well as other factors GXO believes are
appropriate in the circumstances.
These forward-looking statements are subject to known and unknown risks,
uncertainties and assumptions that may cause actual results, levels of activity, performance or achievements to be materially different
from any future results, levels of activity, performance or achievements expressed or implied by such forward-looking statements. Factors
that might cause or contribute to a material difference include, but are not limited to, the risks discussed in our filings with the SEC
and the following: economic conditions generally; supply chain challenges, including labor shortages; competition and pricing pressures;
GXO and/or Wincanton’s ability to align GXO and/or Wincanton’s investments in capital assets, including equipment, service
centers and warehouses, to their respective customers’ demands; GXO and/or Wincanton’s ability to successfully integrate and
realize anticipated benefits, synergies, cost savings and profit improvement opportunities with respect to acquired companies, including
the acquisition of Wincanton; acquisitions may be unsuccessful or result in other risks or developments that adversely affect GXO and/or
Wincanton’s financial condition and results; GXO and/or Wincanton’s ability to develop and implement suitable information
technology systems and prevent failures in or breaches of such systems; GXO and/or Wincanton’s indebtedness; GXO and/or Wincanton’s
ability to raise debt and equity capital; litigation; labor matters, including GXO and/or Wincanton’s ability to manage its subcontractors,
and risks associated with labor disputes at GXO and/or Wincanton’s customers’ facilities and efforts by labor organizations
to organize its employees; risks associated with defined benefit plans for GXO and/or Wincanton’s current and former employees;
GXO and/or Wincanton’s ability to attract or retain necessary talent; the increased costs associated with labor; fluctuations in
currency exchange rates; fluctuations in fixed and floating interest rates; fluctuations in customer confidence and spending; issues related
to GXO and/or Wincanton’s intellectual property rights; governmental regulation, including environmental laws, trade compliance
laws, as well as changes in international trade policies and tax regimes; governmental or political actions, including the United Kingdom’s
exit from the European Union; natural disasters, terrorist attacks or similar incidents; damage to GXO and/or Wincanton’s reputation;
a material disruption of GXO and/or Wincanton’s operations; the inability to achieve the level of revenue growth, cash generation,
cost savings, improvement in profitability and margins, fiscal discipline, or strengthening of competitiveness and operations anticipated
or targeted; failure in properly handling the inventory of GXO and/or Wincanton’s customers; the impact of potential cyber-attacks
and information technology or data security breaches; the inability to implement technology initiatives or business systems successfully;
GXO and/or Wincanton’s ability to achieve Environmental, Social and Governance goals; and a determination by the IRS that the distribution
or certain related spin-off transactions should be treated as taxable transactions. Other unknown or unpredictable factors could cause
actual results to differ materially from those in the forward-looking statements. Such forward-looking statements should therefore be
construed in the light of such factors.
All forward-looking statements set forth in this Current Report on
Form 8-K are qualified by these cautionary statements and there can be no assurance that the actual results or developments anticipated
by us will be realized or, even if substantially realized, that they will have the expected consequences to or effects on us or our business
or operations. Forward-looking statements set forth in this Current Report on Form 8-K speak only as of the date hereof, and we do not
undertake any obligation to update forward-looking statements to reflect subsequent events or circumstances, changes in expectations or
the occurrence of unanticipated events, except to the extent required by law.
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: May 6, 2024 |
GXO LOGISTICS, INC. |
|
|
|
By: |
/s/ Karlis P. Kirsis |
|
|
Karlis P. Kirsis |
|
|
Chief Legal Officer |
Exhibit 4.2
Execution Version
GXO LOGISTICS, INC.,
as the Company
and
COMPUTERSHARE TRUST COMPANY, N.A. (as successor
to Wells Fargo Bank, National Association),
as Trustee
6.250% Notes due 2029
and
6.500% Notes due 2034
Second Supplemental Indenture
Dated as of May 6, 2024
to
Indenture dated as of July 2, 2021
TABLE OF CONTENTS
Page
ARTICLE 1 |
Definitions
and Other Provisions
of General Application | 1 |
Section
1.01. | |
Definitions | |
1 |
Section 1.02. | |
Conflicts with Base Indenture | |
7 |
Section
2.01. | |
Form of Notes |
| 7 |
Section 2.02. | |
Special Transfer Provisions |
| 8 |
Section
3.01. | |
Amount; Series; Terms | |
11 |
Section 3.02. | |
Denominations | |
12 |
Section 3.03. | |
Book-entry Provisions for Global Securities | |
12 |
Section 3.04. | |
Additional Notes | |
12 |
ARTICLE 4 |
Redemption or Repurchase
of Securities | 13 |
Section
4.01. | |
Applicability of Base Indenture | |
13 |
Section 4.02. | |
Optional Redemption | |
13 |
Section 4.03. | |
Special Mandatory Redemption | |
14 |
Section 4.04. | |
Repurchase of Notes Upon a Change of Control | |
15 |
ARTICLE 5 |
Covenants, Defaults and
Remedies | 17 |
Section
5.01. | |
Covenants | |
17 |
Section 5.02. | |
Defaults and Remedies | |
17 |
ARTICLE 6 |
Miscellaneous | 17 |
Section
6.01. | |
Confirmation of Indenture | |
17 |
Section 6.02. | |
Counterparts | |
17 |
Section 6.03. | |
Governing Law | |
18 |
Section 6.04. | |
Waiver of Jury Trial | |
18 |
Section 6.05. | |
Jurisdiction | |
18 |
Section 6.06. | |
Recitals by the Company | |
18 |
Exhibit A-1 | |
Form of 2029 Note |
|
|
Exhibit A-2 | |
Form of 2034 Note |
|
|
SECOND SUPPLEMENTAL INDENTURE, dated as of May 6,
2024 (“Second Supplemental Indenture”), to the Indenture dated as of July 2, 2021 (as amended, modified or supplemented
from time to time in accordance therewith, other than with respect to a particular Series of debt securities that are not the Notes,
the “Base Indenture” and, as amended, modified and supplemented by this Second Supplemental Indenture, the “Indenture”),
by and between GXO LOGISTICS, INC. (the “Company”), and COMPUTERSHARE TRUST COMPANY, N.A. (as successor to Wells
Fargo Bank, National Association), as trustee (the “Trustee”).
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the Notes:
WHEREAS, the Company has duly authorized the execution
and delivery of the Base Indenture to provide for the issuance from time to time of debt securities to be issued in one or more Series as
provided in the Base Indenture;
WHEREAS, the Company has duly authorized the execution
and delivery, and desires and has requested the Trustee to join it in the execution and delivery, of this Second Supplemental Indenture
in order to establish and provide for the issuance by the Company of a Series of Securities designated as its 6.250% Notes due 2029
(the “2029 Notes”) and a Series of Securities designated as its 6.500% Notes due 2034 (the “2034 Notes,”
and together with the 2029 Notes, the “Notes”), on the terms set forth herein;
WHEREAS,
Section 2.01 of the Base Indenture provides that a supplemental indenture may be entered into by the parties for such
purpose without the consent of any Holders; and
WHEREAS, all things necessary to make this Second
Supplemental Indenture a valid and binding agreement of the parties, in accordance with its terms, and a valid amendment of, and supplement
to, the Base Indenture with respect to the Notes have been done.
NOW, THEREFORE:
Article 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions.
Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Base Indenture. The words “herein,”
“hereof” and “hereby” and other words of similar import used in this Second Supplemental Indenture refer to this
Second Supplemental Indenture as a whole and not to any particular section hereof.
As used herein, the following terms have the specified
meanings:
“2029 Notes” has the meaning
specified in the recitals of this Second Supplemental Indenture.
“2034 Notes” has the meaning
specified in the recitals of this Second Supplemental Indenture.
“Additional
Notes” has the meaning specified in Section 3.04 of this Second Supplemental Indenture.
“Applicable Procedures” means,
with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of
DTC, and its direct and indirect participants, including, if applicable those of Euroclear and Clearstream, in each case in effect from
time to time.
“Base Indenture” has the meaning
specified in the recitals of this Second Supplemental Indenture.
“Change of Control” means the
occurrence of any of the following: (1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s assets
and the assets of its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) other than the Company or one or more of its Subsidiaries; or (2) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that any “person” (as defined above), including any
group defined as a person for the purpose of Section 13(d)(3) of the Exchange Act, other than the Company or its Subsidiaries,
becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s
Voting Stock; provided, however, that a person shall not be deemed the beneficial owner of, or to own beneficially, (A) any
securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such person’s Affiliates
until such tendered securities are accepted for purchase or exchange thereunder, or (B) any securities if such beneficial ownership
(i) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the
applicable rules and regulations under the Exchange Act, and (ii) is not also then reportable on Schedule 13D (or any successor
schedule) under the Exchange Act. Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control if (A) the
Company becomes a direct or indirect wholly owned subsidiary of another Person and (B) either (i) the shares of the Company’s
Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the
Voting Stock of such Person immediately after giving effect to such transaction or (ii) immediately following such transaction,
no person (other than a person satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more
than 50% of the Voting Stock of such Person.
“Change of Control Offer” has
the meaning set forth in Section 4.04(a).
“Change of Control Payment Date”
has the meaning set forth in Section 4.04(a).
“Change of Control Repurchase Event”
means the occurrence of both a Change of Control and a Rating Event.
“Clearstream” means Clearstream
Banking, S.A., or the successor to its securities clearance and settlement operations.
“Company” means the party named
as such in this Second Supplemental Indenture until a successor replaces it pursuant to the Indenture and thereafter means the successor.
“Corporate Trust Office” means
the designated office of the Trustee at which at any time its corporate trust business relating to this Second Supplemental Indenture
shall be administered, which office at the date hereof is located at 1505 Energy Park Drive, St. Paul, MN 55108, Attention: Administrator—GXO
Logistics, Inc., or such other address as the Trustee may designate from time to time by notice to the Holders and the Company,
or the principal corporate trust office of any successor trustee (or such other address as such successor trustee may designate from
time to time by notice to the Holders and the Company).
“Definitive
Note” means a certificated Note.
“Depositary” means DTC or any
successor designated by the Company pursuant to the Indenture.
“Euroclear” means Euroclear
S.A./N.V., a company organized under the laws of Belgium, as operator of the Euroclear System, or its successor in such capacity.
“Exchange Act” means the U.S.
Securities Exchange Act of 1934.
“Fitch” means Fitch Ratings, Inc.
and its subsidiaries, or any successor thereto.
“Global
Note” has the meaning set forth in Section 2.01(b)(i).
“Global Notes Legend” means
the legend set forth in Section 2.02(d)(i).
“Indenture” has the meaning
specified in the recitals of this Second Supplemental Indenture.
“Initial 2029 Notes” has the
meaning set forth in Section 3.01(b).
“Initial 2034 Notes” has the
meaning set forth in Section 3.01(b).
“Initial Notes” has the meaning
set forth in Section 3.01(b).
“Interest Payment Date,” when
used with respect to any Note, means the Stated Maturity of an installment of interest on such Note.
“Investment Grade Rating” means
a rating of BBB- or better by Fitch (or its equivalent under any successor Rating Categories of Fitch); a rating of BBB- or better by
S&P (or its equivalent under any successor Rating Categories of S&P); and the equivalent investment grade credit rating from
any additional Rating Agency or Rating Agencies selected by the Company.
“Longstop Time” means 11:59
p.m. (New York City time) January 29, 2025 (the “Relevant Time”), or, in the event that the Wincanton Acquisition
is being conducted by way of a takeover offer as defined in Part 28 of the Companies Act 2006 of the United Kingdom (as amended),
and such takeover offer been has been declared wholly unconditional in the fourteen (14) days prior to the Relevant Time, 11:59 p.m. (New
York City time) on the date that is fourteen (14) days after the date on which such takeover offer has been declared wholly unconditional.
“Notes” has the meaning specified
in the recitals of this Second Supplemental Indenture.
“Notes Custodian” means the
custodian with respect to a Global Note (as appointed by DTC), or any successor Person thereto and will initially be the Trustee.
“Par Call Date” means (i) with
respect to the 2029 Notes, April 6, 2029 (the date that is one month prior to the Stated Maturity of the principal of the 2029 Notes)
and (ii) with respect to the 2034 Notes, February 6, 2034 (the date that is three months prior to the Stated Maturity of the
principal of the 2034 Notes).
“Primary Treasury Dealer” means
a primary U.S. Government securities dealer in the United States of America.
“principal” of a Note means
the principal amount of the Note.
“Rating Agency” means (1) each
of Fitch and S&P, so long as such entity makes a rating of the Notes publicly available; and (2) if either of Fitch or S&P
ceases to rate the Notes or fails to make a rating of the Notes publicly available, a “nationally recognized statistical rating
organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company (as certified by a resolution
of the Board of Directors) as a replacement agency for Fitch or S&P, or both, as the case may be.
“Rating Category” means (i) with
respect to S&P or Fitch, any of the following categories: BBB, BB, B, CCC, CC, C and D (or equivalent successor categories); and
(ii) the equivalent of any such category of Fitch or S&P used by another Rating Agency. In determining whether the rating of
the Notes has decreased by one or more gradations, gradations within rating categories (+ and − for S&P and Fitch; or the equivalent
gradations for another Rating Agency) shall be taken into account (e.g., with respect to S&P and Fitch, a decline in a rating
from BB+ to BB, as well as from BB− to B+, will constitute a decrease of one gradation).
“Rating Event” means, with
respect to a Series of Notes, the rating on such Series of Notes is lowered by both Rating Agencies and such Notes are rated
below an Investment Grade Rating by both Rating Agencies, in any case on any day during the period (which period will be extended so
long as the rating of such Series of Notes is under publicly announced consideration for a possible downgrade by any of the Rating
Agencies) commencing upon the first public notice of the occurrence of a Change of Control or the Company’s intention to effect
a Change of Control and ending 60 days following the consummation of the Change of Control; provided, however, a Rating
Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular
Change of Control (and thus shall not be deemed a Rating Event) if the Rating Agencies making the reduction in rating to which this definition
would otherwise apply do not announce or publicly confirm or inform the Company in writing at the Company’s request that the reduction
was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable
Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the reduction).
“Redemption Date,” with respect
to any Note or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to the Indenture or such Note.
“Regular Record Date,” for
the interest payable on any Interest Payment Date on the Notes of any Series, means the date specified for that purpose herein.
“S&P” means Standard &
Poor’s Ratings Services, a division of The McGraw- Hill Companies, Inc., or any successor thereto.
“Second Supplemental Indenture”
has the meaning specified in the recitals of this Second Supplemental Indenture.
“Special Mandatory Redemption”
has the meaning set forth in Section 4.03(a).
“Special Mandatory Redemption Date”
has the meaning set forth in Section 4.03(b).
“Special Mandatory Redemption Event”
has the meaning set forth in Section 4.03(a).
“Special Mandatory Redemption Notice
Date” has the meaning set forth in Section 4.03(b).
“Special Mandatory Redemption Price”
has the meaning set forth in Section 4.03(a).
“Stated Maturity” means, when
used with respect to any Note or any installment of principal thereof or interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of principal or interest is due and payable.
“Treasury
Rate” means, with respect to any Redemption Date for a Series of Notes pursuant to Section 4.02 hereof,
the yield applicable to such Series of Notes determined by the Company in accordance with the following two paragraphs:
The Treasury Rate applicable to a Series of
Notes shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities
are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding such Redemption Date based
upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published
by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any
successor designation or publication) (“H.15”) under the caption “U.S. government securities—Treasury constant
maturities—Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the applicable Treasury
Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period
from such Redemption Date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury
constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant
maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than
the Remaining Life—and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days)
using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15
shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining
Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity
date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from such Redemption Date.
If on the third Business Day preceding such Redemption
Date H.15 TCM is no longer published, the Company shall calculate the applicable Treasury Rate based on the rate per annum equal to the
semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date
of the United States Treasury security maturing on, or with a maturity that is closest to, the applicable Par Call Date, as applicable.
If there is no United States Treasury security maturing on the applicable Par Call Date but there are two or more United States Treasury
securities with a maturity date equally distant from such Par Call Date, one with a maturity date preceding the applicable Par Call Date
and one with a maturity date following the applicable Par Call Date, the Company shall select the United States Treasury security with
a maturity date preceding the applicable Par Call Date. If there are two or more United States Treasury securities maturing on the applicable
Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select
from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based
upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining
the applicable Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United
States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount)
at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Underwriting Agreement” means
the Underwriting Agreement, dated as of April 25, 2024, among the Company and BofA Securities, Inc. and Goldman Sachs &
Co. LLC, as representatives of the underwriters named in Schedule A thereto.
“Wincanton Acquisition” has
the meaning specified in Section 4.03(a).
Section 1.02. Conflicts
with Base Indenture. In the event that any provision of this Second Supplemental Indenture limits, qualifies or conflicts with a
provision of the Base Indenture, such provision of this Second Supplemental Indenture shall control.
Article 2
Form of Notes
Section 2.01. Form of
Notes.
(a) The
2029 Notes shall be substantially in the form of Exhibit A-1 and the 2034 Notes shall be substantially in the form of Exhibit A-2
hereto, which are hereby incorporated in and expressly made a part of the Indenture (other than, with respect to any Additional
Notes of any Series of the Notes, changes contemplated by Section 3.04). The Notes may have notations, legends or endorsements
required by law, rule or usage to which the Company is subject. Each Note shall be dated the date of its authentication.
(b)
(i) The
Initial Notes shall be offered and sold by the Company pursuant to the Underwriting Agreement in the form of one or more permanent global
securities in fully registered form (collectively, the “Global Notes”), in each case without interest coupons and
with the Global Notes Legend set forth in Section 2.02(d) hereof. Such global securities shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Notes Custodian and registered in the name of DTC or a nominee of DTC, duly executed
by the Company and authenticated by the Trustee as provided in this Indenture.
(ii) The
aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of
the Trustee and DTC or its nominee as hereinafter provided.
(c) This
Section 2.01(c) shall apply only to a Global Note deposited with or on behalf of DTC.
(i) The
Company shall execute and the Trustee shall, in accordance with this Section 2.01(c), authenticate and deliver initially one or
more Global Notes that (A) shall be registered in the name of DTC or its nominee and (B) shall be delivered by the Trustee
to DTC or pursuant to DTC’s instructions or held by the Trustee as Notes Custodian for DTC.
(ii) Members
of, or participants in, DTC (“Agent Members”) shall have no rights under this Indenture with respect to any Global
Note held on their behalf by DTC (or by the Trustee as the Notes Custodian for DTC) or under such Global Note, and the Company, the Trustee
and any agent of the Company or the Trustee shall be entitled to treat DTC as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent
Members, the operation of customary practices of DTC governing the exercise of the rights of a Holder of a beneficial interest in any
Global Note.
(d) Except
as provided in Section 2.15 of the Base Indenture, owners of beneficial interests in Global Notes shall not be entitled to receive
physical delivery of Definitive Notes.
(e) The
Notes may be presented for registration of transfer and exchange at the offices of the Registrar.
Section 2.02. Special
Transfer Provisions Transfer and Exchange of Definitive Notes. When Definitive Notes are presented to the Registrar with a
request:
(i) to
register the transfer of such Definitive Notes; or
(ii) to
exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer
or exchange:
(A) shall
be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar,
duly executed by the Holder thereof or its attorney duly authorized in writing; and
(B) are
accompanied by the following additional information and documents, as applicable: (x) if such Definitive Notes are being delivered
to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that
effect; or (y) if such Definitive Notes are being transferred to the Company, a certification to that effect (in each case in the
form set forth on the reverse side of the Initial Note).
(b) Restrictions
on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar,
together with written instructions directing the Trustee to make, or to direct the Notes Custodian to make, an adjustment on its books
and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the
Global Note, such instructions to contain information regarding the DTC account to be credited with such increase, then the Trustee shall
cancel such Definitive Note and cause, or direct the Notes Custodian to cause, in accordance with the standing instructions and procedures
existing between DTC and the Notes Custodian, the aggregate principal amount of Notes represented by the Global Note to be increased
by the aggregate principal amount of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Definitive Note so
canceled. If no Global Notes are then outstanding and the Global Note has not been previously exchanged for Definitive Notes pursuant
to this Indenture, the Company shall issue and the Trustee shall authenticate, upon receipt of an order from the Company, a new Global
Note in the appropriate principal amount.
(c) Transfer
and Exchange of Global Notes.
(i) The
transfer and exchange of Global Notes or beneficial interests therein shall be effected through DTC, in accordance with this Second Supplemental
Indenture (including applicable restrictions on transfer set forth herein, if any) and the Applicable Procedures therefor. A transferor
of a beneficial interest in a Global Note shall deliver a written or electronic order given in accordance with the Applicable Procedures
containing information regarding the participant account of DTC to be credited with a beneficial interest in such Global Note or another
Global Note and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Note
and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being
transferred.
(ii) If
the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the
Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest
is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Registrar shall reflect
on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is
being transferred.
(iii) Notwithstanding
any other provisions of this Second Supplemental Indenture (other than the provisions set forth in Section 2.15 of the Base Indenture),
a Global Note may not be transferred as a whole except by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of
DTC or by DTC or any such nominee to a successor to DTC or a nominee of such successor to DTC.
(d) Legend.
(i) Each
Note certificate evidencing the Global Notes (and all Notes that are Global Notes issued in exchange therefor or in substitution thereof)
will contain a legend substantially to the following effect (each defined term in the legend being defined as such for purposes of the
legend only):
“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE HOLDERS OF BENEFICIAL INTERESTS HEREIN,
AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES, EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06 OF THE BASE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED AS A WHOLE, BUT NOT IN PART, TO THE DEPOSITARY, ITS
SUCCESSORS OR THEIR RESPECTIVE NOMINEES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
(e) Cancellation
or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive
Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be returned by DTC to the Trustee for cancellation or retained
and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for
Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount
of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if
it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect
such reduction.
(f) Prior
to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent and the Registrar may deem
and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal
of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, the
Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
(g) All
Notes issued upon any transfer or exchange pursuant to the terms of this Second Supplemental Indenture shall evidence the same debt and
shall be entitled to the same benefits under the Indenture as the Notes surrendered upon such transfer or exchange.
(h) By
its acceptance of any Note containing any legend in Section 2.02(b),
each Holder of such Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in such legend in Section 2.02(b) and
agrees that it shall transfer such Note only as provided in this Indenture.
Article 3
The Notes
Section 3.01. Amount;
Series; Terms.
(a) There
is hereby created and designated two Series of Securities under the Base Indenture: the title of the 2029 Notes shall be “6.250%
Notes due 2029” and the title of the 2034 Notes shall be “6.500% Notes due 2034.” The changes, modifications and supplements
to the Base Indenture effected by this Second Supplemental Indenture shall be applicable only with respect to, and govern the terms of,
the Notes and shall not apply to any other Series of Securities that may be issued under the Base Indenture unless a supplemental
indenture or Authorizing Resolution with respect to such other Series of Securities or Officer’s Certificate establishing
such Series of Securities specifically incorporates such changes, modifications and supplements.
(b) The
aggregate principal amount of 2029 Notes that initially may be authenticated and delivered under this Second Supplemental Indenture (the
“Initial 2029 Notes”) shall be limited to $600,000,000, and the aggregate principal amount of 2034 Notes that initially
may be authenticated and delivered under this Second Supplemental Indenture (the “Initial 2034 Notes,” and together
with the Initial 2029 Notes, the “Initial Notes”) shall be limited to $500,000,000, subject, in each case, to increase
as set forth in Section 3.04.
(c) The
Stated Maturity of the 2029 Notes, on which principal thereof is due and payable, shall be May 6, 2029 and the Stated Maturity of
the 2034 Notes, on which principal thereof is due and payable, shall be May 6, 2034. The Notes shall be payable and may be presented
for payment, purchase, redemption, registration of transfer and exchange at the office of the Company maintained for such purpose, which
shall initially be the Corporate Trust Office of the Trustee.
(d) The
2029 Notes shall accrue interest at the rate of 6.250% per year and the 2034 Notes shall accrue interest at the rate of 6.500% per year,
in each case beginning on May 6, 2024 or from the most recent date to which interest has been paid or duly provided for, as further
provided in the forms of Notes annexed hereto as Exhibit A-1 or Exhibit A-2. Interest on the Notes shall be computed on the
basis of a 360-day year comprised of twelve 30-day months. The Interest Payment Dates for the Notes shall be May 6 and November 6
of each year, beginning on November 6, 2024, and the Regular Record Date for any interest payable on each such Interest Payment
Date shall be the immediately preceding April 21 and October 22, respectively; provided that upon the Stated Maturity
of the principal of the Notes, interest shall be payable on such Stated Maturity from the most recent date to which interest has been
paid or duly provided, and shall include the required payment of principal or premium, if any. If any Interest Payment Date, Stated Maturity
or other payment date with respect to the Notes is not a Business Day, the required payment of principal, premium, if any, or interest
will be due on the next succeeding Business Day as if made on the date that such payment was due, and no interest will accrue on that
payment for the period from and after that Interest Payment Date, Stated Maturity or other payment date, as the case may be, to the date
of that payment on the next succeeding Business Day.
(e) The
Notes of each Series will be initially issued in the form of one or more Global Notes, deposited with the Trustee, as Notes Custodian,
or its nominee, duly executed by the Company and authenticated by the Trustee as provided in the Base Indenture.
(f) Payment
of principal of and premium, if any, and interest on a Global Note registered in the name of or held by the Depositary or its nominee
will be made in immediately available funds to the Depositary or its nominee, as the case may be, as the Holder of such Global Note.
If the Notes are no longer represented by a Global Note, payment of interest on certificated Notes in definitive form may, at the Company’s
option, be made by (i) check mailed directly to Holders of such Notes at their registered addresses or (ii) upon request of
any Holder of at least $1,000,000 principal amount of Notes, wire transfer to an account located in the United States maintained by the
payee.
Section 3.02. Denominations.
The Notes of each Series shall be issuable only in registered form in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
Section 3.03. Book-entry
Provisions for Global Securities. Except for the circumstances described in Article 2 of the Base Indenture, no Global Note
may be exchanged in whole or in part for Notes registered, and no transfer of a Global Note in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Note or a nominee thereof.
Section 3.04. Additional
Notes. The Company may, without notice to or the consent of the Holders of the Notes, create and issue pursuant to the Indenture
additional Notes of a Series (“Additional Notes”) having the same terms as, and ranking equally and ratably with,
the applicable Series of Notes in all respects, except for the issue date, the public offering price and, if applicable, the payment
of interest accruing prior to the issue date of such Additional Notes and the first payment of interest following the issue date of such
Additional Notes; provided that if such Additional Notes are not fungible with the applicable Series of Notes for U.S. federal
income tax purposes, such Additional Notes will have a separate CUSIP number. Such Additional Notes may be consolidated and form a single
Series with, and will have the same terms as to ranking, redemption, waivers, amendments or otherwise as, the applicable Series of
Notes, and will vote together as one class on all matters with respect to such Series of Notes.
Article 4
Redemption or Repurchase of Securities
Section 4.01. Applicability
of Base Indenture. Subject to Section 1.02 hereof, the provisions of Article 3 of the Base Indenture, as supplemented by
the provisions of this Second Supplemental Indenture, shall apply to redemptions of the Notes pursuant to Section 4.02
hereof.
Section 4.02. Optional
Redemption.
(a) Prior
to the applicable Par Call Date, the Company may redeem each Series of Notes at its option, in whole or in part, at any time and
from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to
the greater of:
(i) (a) the
sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed discounted to the
applicable Redemption Date (assuming the Notes to be redeemed matured on the applicable Par Call Date) on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points for the 2029 Notes and 30 basis points for
the 2034 Notes less (b) interest accrued to, but excluding, the applicable date of redemption, and
(ii) 100%
of the principal amount of the Notes to be redeemed,
plus,
in either case, accrued and unpaid interest on the principal amount of the Notes to be redeemed to, but excluding, the applicable Redemption
Date.
(b) On
or after the applicable Par Call Date, the Company may redeem each Series of Notes, in whole or in part, at any time and from time
to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon
to, but excluding, the applicable Redemption Date.
(c) The
Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent
manifest error.
(d) In
the case of a partial redemption of any Series of Notes, selection of the Notes of such Series for redemption will be made
pro rata, by lot or by such other method according to the Applicable Procedures of DTC. No notes of a principal amount of $2,000 or less
will be redeemed in part. If at any time notes of any Series are to be redeemed in part only, the notice of redemption that relates
to such partial redemption will state the portion of the principal amount of the Notes of such Series to be redeemed. A new note
in a principal amount equal to the unredeemed portion of the relevant note will be issued in the name of the holder of the note upon
surrender for cancellation of the original note. For so long as such Series of Notes are held by DTC (or another Depositary), the
redemption of such Notes shall be done in accordance with the policies and procedures of the Depositary.
(e) Unless
the Company defaults in payment of the redemption price, on and after any Redemption Date, interest will cease to accrue on the Notes,
or portions thereof, called for redemption.
(f) Any
notice of redemption may, at the Company’s discretion, be subject to one or more conditions precedent with respect to completion
of a corporate transaction (including, but not limited to, any merger, acquisition, disposition, asset sale or corporate restructuring
or reorganization) or financing (including, but not limited to, any incurrence of indebtedness (or entering into a commitment with respect
thereto), sale and leaseback transaction, issuance of securities, equity offering or contribution, liability management transaction or
other capital raise) and may be given prior to the completion thereof. If a redemption is subject to satisfaction of one or more conditions
precedent, the notice shall describe each condition, and the notice may be rescinded in the event that any or all of the conditions shall
not have been satisfied on or prior to the Redemption Date. Any notice of redemption may provide that payment of the redemption price
and the Company’s obligations with respect to the redemption may be performed by another person.
Section 4.03. Special
Mandatory Redemption.
(a) In
the event that (x) the Company has not acquired at least a majority of the issued ordinary share capital of Wincanton plc (the “Wincanton
Acquisition”) on or before 11:59 p.m. (New York City time) on the date that is five (5) Business Days after the Longstop
Time or (y) the Company notifies the Trustee in writing that it will not pursue the consummation of the Wincanton Acquisition (the
earliest such event described in clause (x) or (y), if any, the “Special Mandatory Redemption Event”), the Company
will be required to redeem the Notes then outstanding (such redemption, the “Special Mandatory Redemption”) at a redemption
price equal to 101% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding,
the Special Mandatory Redemption Date (the “Special Mandatory Redemption Price”).
(b) In
the event that the Company becomes obligated to redeem the Notes pursuant to the Special Mandatory Redemption, the Company will promptly,
and in any event not more than ten (10) Business Days after the Special Mandatory Redemption Event, deliver to the Trustee notice
(the date on which such notice is delivered, the “Special Mandatory Redemption Notice Date”) of the Special Mandatory
Redemption and the date upon which such Notes will be redeemed (the “Special Mandatory Redemption Date,” which date
shall be no later than the third Business Day following the Special Mandatory Redemption Notice Date) and to the Trustee a notice of
Special Mandatory Redemption for the Trustee to deliver to each registered Holder of Notes to be redeemed. Upon delivery by the Company
to the Trustee of the notice of Special Mandatory Redemption, the Trustee will promptly mail, or deliver electronically if such Notes
are held by any Depositary (including, without limitation, DTC) in accordance with such Depositary’s customary procedures, such
notice of Special Mandatory Redemption to each registered Holder of Notes to be redeemed at its registered address (so long as such notice
is delivered to the Trustee at least one Business Day prior to the date such notice is to be sent (or such shorter period as the Trustee
may agree)). On or prior to the Special Mandatory Redemption Date, if necessary, the Company shall deposit with the Trustee immediately
available funds in U.S. dollars in an amount sufficient to pay the Special Mandatory Redemption Price on all Notes to be redeemed on
such date. The Trustee shall apply such deposited funds on the Special Mandatory Redemption Date to the Special Mandatory Redemption.
Unless the Company defaults in payment of the Special Mandatory Redemption Price, on and after such Special Mandatory Redemption Date,
interest will cease to accrue on the Notes to be redeemed. The Trustee will release to the Company any deposited funds remaining after
the Notes are redeemed.
(c) Notwithstanding
the foregoing, installments of interest on any Series of Notes that are due and payable on Interest Payment Dates falling on or
prior to the Special Mandatory Redemption Date will be payable on such Interest Payment Dates to the registered Holders as of the close
of business on the relevant Regular Record Dates in accordance with the Notes and the Indenture.
(d) The
Company shall not be required to make any mandatory redemption or sinking fund payments with respect to the Notes, except for the Special
Mandatory Redemption pursuant to Section 4.03 hereof, if applicable.
Section 4.04. Repurchase
of Notes Upon a Change of Control.
(a) If
a Change of Control Repurchase Event occurs with respect to a Series of Notes, unless the Company has exercised its right to redeem
such Notes as described in Section 4.02 of this Second
Supplemental Indenture, the Company is required to make an offer (the “Change of Control Offer”) to each Holder of
the Notes of such Series to repurchase all or any part (in excess of $2,000 and in integral multiples of $1,000) of that Holder’s
Notes of such Series, at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus any
accrued and unpaid interest on the Notes repurchased to, but excluding, the date of repurchase. Within 30 days following any Change of
Control Repurchase Event with respect to the Notes or, at the option of the Company, prior to any Change of Control, but after the public
announcement of the transaction that constitutes or may constitute a Change of Control, the Company will electronically deliver or mail
a notice to each Holder of the applicable Series of Notes, with a copy to the Trustee, describing the transaction or transactions
that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes on the payment date specified
in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is electronically delivered
or mailed (the “Change of Control Payment Date”). The notice shall, if electronically delivered or mailed prior to
the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control Repurchase
Event occurring on or prior to the Change of Control Payment Date.
(b) On
the Change of Control Payment Date, the Company will, to the extent lawful:
(i) accept
for payment all the Notes or portions of the Notes properly tendered pursuant to the Change of Control Offer;
(ii) deposit
with the Paying Agent an amount equal to the aggregate purchase price in respect of all the Notes or portions of the Notes properly tendered;
and
(iii) deliver
or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate stating the aggregate
principal amount of Notes being purchased by the Company.
(c) The
Paying Agent will promptly deliver to each Holder of Notes properly tendered payment for such Notes, and the Trustee will promptly authenticate
and deliver (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion
of any Notes surrendered.
(d) The
Company is not required to make an offer to repurchase Notes in connection with a Change of Control Repurchase Event if a third party
makes such an offer in the manner and at the times and otherwise in compliance with the requirements hereunder for such an offer made
by the Company, and such third party purchases all Notes validly tendered and not withdrawn under its offer.
(e) If
Holders of not less than 90% in aggregate principal amount of the applicable outstanding Series of Notes validly tender and do not
withdraw such Notes in an offer to repurchase the Notes in connection with a Change of Control Repurchase Event and the Company purchases
all of the Notes of such Series validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less
than 10 nor more than 60 days’ prior written notice to the Holders of Notes of such Series and the Trustee, given not more
than 30 days following the Change of Control Payment Date, to redeem all Notes of such Series that remain outstanding following
such purchase at a redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest to, but excluding,
the Redemption Date.
(f) The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder,
to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase
Event provisions of the Indenture or the Notes, the Company will comply with the applicable securities laws and regulations and will
not be deemed to have breached its obligations under this Section 4.04
or the Notes by virtue of compliance with such securities laws and regulations.
(g) Notwithstanding
anything to the contrary in the Indenture or otherwise, for the avoidance of doubt, the Company’s obligation to repurchase Notes
upon a Change of Control Repurchase Event may be waived by the Holders of not less than a majority in aggregate principal amount of the
outstanding Notes of the applicable Series affected by such waiver.
Article 5
Covenants, Defaults and Remedies
Section 5.01. Covenants.
Article 4 and Article 5 of the Base Indenture shall apply to the Notes.
Section 5.02. Defaults
and Remedies. Article 6 of the Base Indenture shall apply to the Notes.
Article 6
Miscellaneous
Section 6.01. Confirmation
of Indenture. The Base Indenture, as supplemented and amended by this Second Supplemental Indenture, is in all respects ratified
and confirmed, and the Base Indenture and this Second Supplemental Indenture shall be read, taken and construed as one and the same instrument.
Section 6.02. Counterparts.
The parties hereto may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement. Signatures of the parties hereto transmitted by facsimile or other electronic transmission
shall be deemed to be their original signatures for all purposes. This Second Supplemental Indenture shall be valid, binding, and enforceable
against a party (subject to applicable bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance, reorganization, moratorium
and other laws now or hereinafter in effect affecting creditors’ rights or remedies generally and to general principles of equity
(including standards of materiality, good faith, fair dealing and reasonableness), whether considered in a proceeding at law or at equity)
only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted
by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act,
and/or any other relevant electronic signatures law, including relevant provisions of the NYUCC (collectively, “Signature Law”);
(ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or
faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence
as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect
to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate,
confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual signatures shall be used for
execution or indorsement of writings when required under the NYUCC or other Signature Law due to the character or intended character
of the writings.
Section 6.03.
Governing Law. This Second Supplemental
Indenture and the Notes of each Series shall be governed by and construed in accordance with the laws of the State of New York.
Section 6.04.
Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS SECOND SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 6.05.
Jurisdiction. The Company and the Trustee, and each Holder of a Note by its acceptance
thereof, hereby (i) irrevocably submit to the non-exclusive jurisdiction of any federal or state court sitting in the Borough of
Manhattan, the city of New York, over any suit, action or proceeding arising out of or relating to this Second Supplemental Indenture
and (ii) to the fullest extent permitted by applicable law, irrevocably waive and agree not to assert, by way of motion, as a defense
or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient forum.
Section 6.06.
Recitals by the Company. The recitals in this Second Supplemental Indenture are made
by the Company only and not by the Trustee, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Second Supplemental Indenture or of the Notes. The Trustee shall not be accountable for the
use or application by the Company of the Notes or the proceeds thereof. All of the provisions contained in the Base Indenture in respect
of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the Notes and of this Second
Supplemental Indenture as fully and with like effect as if set forth herein in full.
[the remainder of this page intentionally
left blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Second Supplemental Indenture to be duly executed as of the date first written above.
|
GXO LOGISTICS, INC.,
as Company |
|
|
|
By: |
/s/ Zeeshan Naqvi |
|
|
Name: Zeeshan Naqvi |
|
|
Title: Senior Vice President, Treasurer |
[Signature Page -
GXO Logistics Second Supplemental Indenture]
|
COMPUTERSHARE
TRUST COMPANY, N.A.,
as Trustee |
|
|
|
By: |
/s/ Corey J. Dahlstrand |
|
|
Name: Corey J. Dahlstrand |
|
|
Title: Vice President |
[Signature Page - GXO Logistics Second
Supplemental Indenture]
EXHIBIT A-1
[FORM OF 2029 NOTE]
[Global Notes Legend]
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE HOLDERS OF BENEFICIAL INTERESTS
HEREIN, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES, EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06 OF THE BASE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO THE INDENTURE
AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED AS A WHOLE, BUT NOT IN PART, TO THE DEPOSITARY, ITS SUCCESSORS OR THEIR RESPECTIVE NOMINEES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[FORM OF NOTE]
GXO LOGISTICS, INC.
No. [ ]
CUSIP No.: 36262G AF8
ISIN No.: US36262GAF81
$[
]
6.250% Note due 2029
GXO
LOGISTICS, INC., a Delaware corporation, promises to pay to Cede & Co., or registered assigns, the principal sum of [__]
DOLLARS (or such other amount set forth on the Schedule of Increases or Decreases in Global Note attached hereto) on May 6, 2029.
Interest Payment Dates: May 6 and November 6,
commencing November 6, 2024.
Record Dates: April 21 and October 22.
Additional provisions of this Note are set forth
on the other side of this Note.
IN WITNESS WHEREOF, the parties have caused this
instrument to be duly executed.
|
GXO LOGISTICS, INC. |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
COMPUTERSHARE
TRUST COMPANY, N.A.
as Trustee, certifies that this is one of the Notes referred to in the Indenture. |
|
|
|
By: |
|
|
|
Authorized Signatory |
|
Dated:
[FORM OF REVERSE SIDE OF NOTE]
6.250% Note Due 2029
GXO Logistics, Inc., a Delaware corporation
(together with its successors and assigns, the “Company”), issued this Note under the Indenture dated as of July 2,
2021 (as amended, modified or supplemented from time to time in accordance therewith, the “Base Indenture”), as supplemented
by the Second Supplemental Indenture dated as of May 6, 2024 (the “Supplemental Indenture” and together with
the Base Indenture, the “Indenture”), by and between the Company and Computershare Trust Company, N.A. (as successor
to Wells Fargo Bank, National Association), as trustee (in such capacity, the “Trustee”), to which reference is hereby
made for a statement of the respective rights, obligations, duties and immunities thereunder of the Company, the Trustee and the Holders
and of the terms upon which this Note is authorized and delivered. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them therein. If any terms of this Note conflicts with the terms of the Indenture, the terms of the Indenture
shall govern and control.
1.
Interest.
The Company promises to pay interest on the principal amount of this Note at the rate of 6.250% per year. The Company will pay interest
semi-annually in arrears on May 6 and November 6 of each year (each, an “Interest Payment Date”), beginning
on November 6, 2024, until the principal is paid or made available for payment. Interest on this Note will accrue from the most
recent date to which interest has been paid or duly provided for or, if no interest has been paid, from the date of issuance to, but
excluding, the applicable Interest Payment Date or Stated Maturity of the principal of the Note, as the case may be. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months. If any Interest Payment Date, Stated Maturity or other payment
date with respect to the Notes is not a Business Day, the required payment of principal, premium, if any, or interest will be due on
the next succeeding Business Day as if made on the date that such payment was due, and no interest will accrue on that payment for the
period from and after that Interest Payment Date, Stated Maturity or other payment date, as the case may be, to the date of that payment
on the next succeeding Business Day.
2. Method
of Payment. The Company will pay interest on this Note (except defaulted interest, if any, which will be paid on a special payment
date to Holders of record on such special record date as may be fixed by the Company in accordance with Section 2.11 of the Base
Indenture) to the persons in whose name this Note is registered at the close of business on the Regular Record Date immediately preceding
the relevant Interest Payment Date. The Company will pay principal and interest in money of the United States of America that at the
time of payment is legal tender for payment of public and private debts, at the office or agency of the Company maintained for that purpose
in accordance with the Indenture.
3. Paying
Agent. Initially, the Trustee will act as Paying Agent and Registrar. The Company may have one or more co-Registrars and one or more
additional paying agents. The Company may at any time rescind the designation of any Registrar or Paying Agent or approve a change through
which the Registrar or Paying Agent acts.
4. Optional
Redemption. This Note shall be redeemable at the option of the Company in accordance with Section 4.02
of the Supplemental Indenture.
5. Special
Mandatory Redemption. The Company will be required to redeem this Note as and to the extent set forth in (and only in the circumstances
described in) Section 4.03 of the Supplemental Indenture.
6. Offer
to Repurchase Upon Change of Control Repurchase Event. The Company will be required to make a Change of Control Offer as and to the
extent set forth in (and only in the circumstances described in) Section 4.04
of the Supplemental Indenture.
7. Persons
Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes.
8. Unclaimed
Money. All amounts of principal of and premium, if any, and interest on this Note paid by the Company to the Trustee or Paying Agent
that remain unclaimed for two years will be repaid to the Company, and the Holder of this Note will thereafter look solely to the Company
for payment unless applicable abandoned property law designates another Person.
9. Amendment,
Supplement, Waiver. The Indenture or this Note may be amended or supplemented in accordance with the terms of the Indenture.
10. Successor
Person. When a successor Person assumes all the obligations of its predecessor under the Note and the Indenture, the predecessor
Person will be released from those obligations, in accordance with and except as set forth in the Indenture.
11. No
Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Note or the Indenture or for any claim based on, in respect of or by reason of, such obligations
or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration
for the issue of the Note.
12. Discharge
of Indenture. The Indenture contains certain provisions pertaining to defeasance and discharge, which provisions shall for all purposes
have the same effect as if set forth herein.
13. Authentication.
This Note shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the other
side of this Note.
14. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A
(= Uniform Gift to Minors Act).
15. Governing
Law. This Note shall be governed by and construed in accordance with the laws of the State of New York.
16. CUSIP
and ISIN Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP and ISIN numbers to be printed on this Note and has directed the Trustee to use CUSIP and ISIN numbers in notices of
repurchase as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on this Note or
as contained in any notice of repurchase, and reliance may be placed only on the other identification numbers placed thereon.
17. Indenture;
Copies. The terms of this Note include those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (“TIA”) as in effect on the date the Indenture is qualified. This Note is subject to all
such terms, and Holders are referred to the Indenture and TIA for a statement of such terms. This Note is an unsecured, unsubordinated
obligation of the Company and constitutes a Note in the series designated on the face hereof as the “6.250% Notes due 2029”,
initially limited to $600,000,000 in aggregate principal amount. The Company will furnish to any Holder upon written request and without
charge a copy of the Base Indenture and a copy of the Supplemental Indenture. Requests may be made to: GXO Logistics, Inc., Two
American Lane, Greenwich, CT 06831, Attention: Company Secretary.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
____________________________________________________
(Print or type assignee’s name, address
and zip code)
____________________________________________________
(Insert assignee’s soc. sec. or tax I.D.
No.)
and irrevocably appoint agent to transfer this Note on the books of
the Company. The agent may substitute another to act for him.
Date: __________ |
Your Signature: ________________________ |
_____________________________________________________
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
Date: |
|
|
|
Signature must be guaranteed by a participant
in a recognized signature guaranty medallion program or other signature guarantor program reasonably acceptable to the Trustee |
|
Signature of Signature Guarantee |
[TO BE ATTACHED TO GLOBAL
NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The
initial principal amount of this Global Note is $ .
The following increases or decreases in this Global Note have been made:
Date
of Exchange |
Amount
of
decrease in
Principal Amount
of this Global Note |
Amount
of increase
in Principal
Amount of this
Global Note |
Principal
amount
of this Global
Note following
such decrease or increase |
Signature
of
authorized
signatory of
Trustee or Notes
Custodian |
|
|
|
|
|
EXHIBIT A-2
[FORM OF 2034 NOTE]
[Global Notes Legend]
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE HOLDERS OF BENEFICIAL INTERESTS
HEREIN, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES, EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06 OF THE BASE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO THE
INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED AS A WHOLE, BUT NOT IN PART, TO THE DEPOSITARY, ITS SUCCESSORS OR THEIR
RESPECTIVE NOMINEES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[FORM OF NOTE]
GXO LOGISTICS, INC.
No. [ ]
CUSIP No.: 36262G AG6
ISIN No.: US36262GAG64
$[
]
6.500% Note due 2034
GXO
LOGISTICS, INC., a Delaware corporation, promises to pay to Cede & Co., or registered assigns, the principal sum of [__]
DOLLARS (or such other amount set forth on the Schedule of Increases or Decreases in Global Note attached hereto) on May 6, 2034.
Interest Payment Dates: May 6 and November 6,
commencing November 6, 2024.
Record Dates: April 21 and October 22.
Additional provisions of this Note are set forth
on the other side of this Note.
IN WITNESS WHEREOF, the parties have caused this
instrument to be duly executed.
|
GXO LOGISTICS, INC. |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
COMPUTERSHARE
TRUST COMPANY, N.A.
as Trustee, certifies that this is one of the Notes referred to in the Indenture. |
|
|
|
By: |
|
|
|
Authorized Signatory |
|
Dated:
[FORM OF REVERSE SIDE OF NOTE]
6.500% Note Due 2034
GXO Logistics, Inc., a Delaware corporation
(together with its successors and assigns, the “Company”), issued this Note under the Indenture dated as of July 2,
2021 (as amended, modified or supplemented from time to time in accordance therewith, the “Base Indenture”), as supplemented
by the Second Supplemental Indenture dated as of May 6, 2024 (the “Supplemental Indenture” and together with
the Base Indenture, the “Indenture”), by and between the Company and Computershare Trust Company, N.A. (as successor
to Wells Fargo Bank, National Association), as trustee (in such capacity, the “Trustee”), to which reference is hereby
made for a statement of the respective rights, obligations, duties and immunities thereunder of the Company, the Trustee and the Holders
and of the terms upon which this Note is authorized and delivered. All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them therein. If any terms of this Note conflicts with the terms of the Indenture, the terms of the Indenture
shall govern and control.
1. Interest.
The Company promises to pay interest on the principal amount of this Note at the rate of 6.500% per year. The Company will pay interest
semi-annually in arrears on May 6 and November 6 of each year (each, an “Interest Payment Date”), beginning
on November 6, 2024, until the principal is paid or made available for payment. Interest on this Note will accrue from the most
recent date to which interest has been paid or duly provided for or, if no interest has been paid, from the date of issuance to, but
excluding, the applicable Interest Payment Date or Stated Maturity of the principal of the Note, as the case may be. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months. If any Interest Payment Date, Stated Maturity or other payment
date with respect to the Notes is not a Business Day, the required payment of principal, premium, if any, or interest will be due on
the next succeeding Business Day as if made on the date that such payment was due, and no interest will accrue on that payment for the
period from and after that Interest Payment Date, Stated Maturity or other payment date, as the case may be, to the date of that payment
on the next succeeding Business Day.
2. Method
of Payment. The Company will pay interest on this Note (except defaulted interest, if any, which will be paid on a special payment
date to Holders of record on such special record date as may be fixed by the Company in accordance with Section 2.11 of the Base
Indenture) to the persons in whose name this Note is registered at the close of business on the Regular Record Date immediately preceding
the relevant Interest Payment Date. The Company will pay principal and interest in money of the United States of America that at the
time of payment is legal tender for payment of public and private debts, at the office or agency of the Company maintained for that purpose
in accordance with the Indenture.
3. Paying
Agent. Initially, the Trustee will act as Paying Agent and Registrar. The Company may have one or more co-Registrars and one or more
additional paying agents. The Company may at any time rescind the designation of any Registrar or Paying Agent or approve a change through
which the Registrar or Paying Agent acts.
4. Optional
Redemption. This Note shall be redeemable at the option of the Company in accordance with Section 4.02
of the Supplemental Indenture.
5. Special
Mandatory Redemption. The Company will be required to redeem this Note as and to the extent set forth in (and only in the circumstances
described in) Section 4.03 of the Supplemental Indenture.
6. Offer
to Repurchase Upon Change of Control Repurchase Event. The Company will be required to make a Change of Control Offer as and to the
extent set forth in (and only in the circumstances described in) Section 4.04
of the Supplemental Indenture.
7. Persons
Deemed Owners. The registered Holder of this Note shall be treated as the owner of it for all purposes.
8. Unclaimed
Money. All amounts of principal of and premium, if any, and interest on this Note paid by the Company to the Trustee or Paying Agent
that remain unclaimed for two years will be repaid to the Company, and the Holder of this Note will thereafter look solely to the Company
for payment unless applicable abandoned property law designates another Person.
9. Amendment,
Supplement, Waiver. The Indenture or this Note may be amended or supplemented in accordance with the terms of the Indenture.
10. Successor
Person. When a successor Person assumes all the obligations of its predecessor under the Note and the Indenture, the predecessor
Person will be released from those obligations, in accordance with and except as set forth in the Indenture.
11. No
Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Note or the Indenture or for any claim based on, in respect of or by reason of, such obligations
or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration
for the issue of the Note.
12. Discharge
of Indenture. The Indenture contains certain provisions pertaining to defeasance and discharge, which provisions shall for all purposes
have the same effect as if set forth herein.
13. Authentication.
This Note shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the other
side of this Note.
14. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A
(= Uniform Gift to Minors Act).
15. Governing
Law. This Note shall be governed by and construed in accordance with the laws of the State of New York.
16. CUSIP
and ISIN Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP and ISIN numbers to be printed on this Note and has directed the Trustee to use CUSIP and ISIN numbers in notices of
repurchase as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on this Note or
as contained in any notice of repurchase, and reliance may be placed only on the other identification numbers placed thereon.
17. Indenture;
Copies. The terms of this Note include those stated in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (“TIA”) as in effect on the date the Indenture is qualified. This Note is subject to all
such terms, and Holders are referred to the Indenture and TIA for a statement of such terms. This Note is an unsecured, unsubordinated
obligation of the Company and constitutes a Note in the series designated on the face hereof as the “6.500% Notes due 2034”,
initially limited to $500,000,000 in aggregate principal amount. The Company will furnish to any Holder upon written request and without
charge a copy of the Base Indenture and a copy of the Supplemental Indenture. Requests may be made to: GXO Logistics, Inc., Two
American Lane, Greenwich, CT 06831, Attention: Company Secretary.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
____________________________________________________
(Print or type assignee’s name, address
and zip code)
____________________________________________________
(Insert assignee’s soc. sec. or tax I.D.
No.)
and irrevocably appoint agent to transfer this Note on the books of
the Company. The agent may substitute another to act for him.
Date: __________ |
Your Signature: ________________________ |
_____________________________________________________
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
Date: |
|
|
|
Signature must be guaranteed by a participant
in a recognized signature guaranty medallion program or other signature guarantor program reasonably acceptable to the Trustee |
|
Signature of Signature Guarantee |
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The
initial principal amount of this Global Note is $ .
The following increases or decreases in this Global Note have been made:
Date
of Exchange |
Amount
of
decrease in
Principal Amount
of this Global Note |
Amount
of increase
in Principal
Amount of this
Global Note |
Principal
amount
of this Global
Note following
such decrease or increase |
Signature
of
authorized
signatory of
Trustee or Notes
Custodian |
|
|
|
|
|
Exhibit 5.1
[Letterhead of Wachtell, Lipton, Rosen &
Katz]
May 6, 2024
GXO LOGISTICS, INC.
Two American Lane
Greenwich, Connecticut 06831
Ladies and Gentlemen:
We have acted as special counsel
to GXO Logistics, Inc., a Delaware corporation (the “Company”), in connection with the issuance and sale by the Company
of $600 million in aggregate principal amount of its 6.250% senior notes due 2029 (the “2029 Notes”) and $500 million in aggregate
principal amount of its 6.500% senior notes due 2034 (the “2034 Notes,” and together with the 2029 Notes, the “Notes”).
The Notes were sold pursuant to an underwriting agreement, dated April 25, 2024, by and among the Company and BofA Securities, Inc.
and Goldman Sachs & Co. LLC, for themselves and as representatives of the several underwriters named therein (the “Underwriting
Agreement”). The Notes are to be issued under the indenture, dated July 2, 2021, between the Company and Computershare Trust
Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee (the “Trustee”), as supplemented by that
certain Second Supplemental Indenture, between the Company and the Trustee (collectively, the “Indenture”).
We have examined and relied
on originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records, certificates of the
Company and public officials and other instruments as we have deemed necessary or appropriate for the purposes of this letter, including
(a) the registration statement on Form S-3ASR (File No. 333-259217), filed with the Securities and Exchange Commission
(the “Commission”) on August 31, 2021 (the “Registration Statement”); (b) the base prospectus,
dated August 31, 2021, included in the Registration Statement, but excluding the documents incorporated by reference therein;
(c) the preliminary prospectus supplement, dated April 25, 2024, as filed with the Commission pursuant to Rule 424(b)(5) under
the Securities Act of 1933, as amended (the “Act”), but excluding the documents incorporated by reference therein; (d) the
final term sheet dated April 25, 2024, as filed with the Commission pursuant to Rule 433 under the Act; (e) the final
prospectus supplement (the “Prospectus Supplement”), dated April 25, 2024, as filed with the Commission pursuant to Rule 424(b)(2) under
the Act, but excluding the documents incorporated by reference therein; (f) a copy of the Amended and Restated Certificate of Incorporation
of the Company and a copy of the Second Amended and Restated Bylaws of the Company, each as set forth in the certificate of the Secretary
of the Company, dated May 6, 2024; (g) the Indenture; (h) a copy of the Global Notes for each series of the Notes,
each dated May 6, 2024; (i) an executed copy of the Underwriting Agreement; (j) resolutions of the Board of Directors
of the Company and the Pricing Committee of the Board of Directors of the Company relating to the issuance of the Notes; and (k) such
other corporate records, certificates and other documents and such matters of law, in each case, as we have deemed necessary or appropriate.
In such examination, we have assumed (i) the authenticity of original documents and the genuineness of all signatures; (ii) the
conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information,
representations and warranties contained in the agreements, records, documents, instruments and certificates we have reviewed; (iv) all
Notes will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration
Statement and the Prospectus Supplement; and (v) the Underwriting Agreement has been duly authorized and validly executed and
delivered by the Underwriters. We have assumed that the terms of the Notes have been established so as not to, and that the execution
and delivery by the parties thereto and the performance of such parties’ obligations under the Notes will not, breach, contravene,
violate, conflict with or constitute a default under (1) any law, rule or regulation to which any party thereto is subject (excepting
the laws of the State of New York and the federal securities laws of the United States of America as such laws apply to the Company);
(2) any judicial or regulatory order or decree of any governmental authority; or (3) any consent, approval, license, authorization
or validation of, or filing, recording or registration with any governmental authority. We also have assumed that the Indenture and the
Notes are the valid and legally binding obligation of the Trustee. As to any facts material to the opinion expressed herein that we did
not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the
Company and others. We have further assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, facsimile,
conformed, electronic or photostatic copies, and the authenticity of the originals of such copies.
GXO Logistics, Inc.
May 6, 2024
Page 2
We are members of the Bar
of the State of New York, and we have not considered, and we express no opinion as to, the laws of any jurisdiction other than the laws
of the State of New York and the federal securities laws of the United States of America, in each case as in effect on the date hereof.
Based upon the foregoing,
and subject to the assumptions, limitations, qualifications, exceptions and comments set forth in this letter, we advise you that, in
our opinion, the Notes, when duly executed, authenticated, issued, delivered and paid for in accordance with the terms of the Indenture
and the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms.
The opinion set forth above
is subject to the effects of (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors’ rights generally; (b) general equitable principles (whether considered
in a proceeding in equity or at law); (c) an implied covenant of good faith and fair dealing; (d) provisions of law
that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars;
(e) limitations by any governmental authority that limit, delay or prohibit the making of payments outside the United States;
and (f) generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change
of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the availability
of a remedy under certain circumstances where another remedy has been elected, (iii) limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent
the action or inaction involves negligence, gross negligence, recklessness, willful misconduct or unlawful conduct, (iv) may, where
less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the
unenforceable portion is not an essential part of the agreed-upon exchange, (v) may limit the enforceability of provisions providing
for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or providing
for liquidated damages or for premiums upon acceleration, or (vi) limit the waiver of rights under usury laws. Furthermore, the manner
in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances
particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available
to it. We express no opinion as to the effect of Section 210(p) of the Dodd-Frank Wall Street Reform and Consumer Protection
Act of 2010, as amended.
GXO Logistics, Inc.
May 6, 2024
Page 3
We express no opinion as to
whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof, including, without limitation,
the enforceability of the governing law provisions contained in the Notes and the Indenture. We express no opinion as to the ability of
another court, federal or state, to accept jurisdiction and/or venue in the event the chosen court is unavailable for any reason, including,
without limitation, natural disaster, act of God, human health or safety reasons or otherwise (including a pandemic).
This letter speaks only as
of its date and is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. We hereby consent
to the filing of a copy of this letter as an exhibit to the Company’s Current Report on Form 8-K, filed on May 6, 2024,
and to the use of our name in the prospectus forming a part of the Registration Statement under the caption “Legal Matters.”
In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7
of the Act.
|
Very truly yours, |
|
|
|
/s/ Wachtell, Lipton, Rosen & Katz |
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