Exhibit 10.1


 





$ 87,000,000

The Marcus Corporation



5.00% Convertible Senior Notes due 2025


 


Purchase Agreement


 


September 17, 2020


 


J.P. Morgan Securities LLC


As Representative of the


several Initial Purchasers listed


in Schedule 1 hereto


 


c/o J.P. Morgan Securities LLC


383 Madison Avenue


New York, New York 10179


 


Ladies and Gentlemen:


 


The Marcus Corporation, a Wisconsin corporation
(the “Company”), proposes to issue and sell to the several initial purchasers listed in Schedule 1 hereto (the “Initial
Purchasers”), for whom you are acting as representative (the “Representative”), $ 87,000,000 principal amount
of its 5.00% Convertible Senior Notes due 2025 (the “Underwritten Securities”) and, at the option of the Initial Purchasers,
up to an additional $ 13,050,000 principal amount of its 5.00% Convertible Senior Notes due 2025 (the “Option Securities”)
if and to the extent that the Initial Purchasers shall have determined to exercise the option to purchase such 5.00% Convertible
Senior Notes due 2025 granted to the Initial Purchasers in Section ‎2
hereof. The Underwritten Securities and the Option Securities are herein referred to as the “Securities”. The Securities
will be convertible into shares (the “Underlying Securities”) of common stock of the Company, par value $1.00 per share
(the “Common Stock”) in the manner provided in the Indenture (as defined below). The Securities will be issued pursuant
to an Indenture to be dated as of September 22, 2020 (the “Indenture”), between the Company and U.S. Bank, N.A., as
trustee (the “Trustee”).


 


In connection with the offering of the Underwritten
Securities, the Company is separately entering into capped call transactions with one or more of the Initial Purchasers or their
respective affiliates and/or other financial institutions (the “Capped Call Counterparties”), in each case pursuant
to a capped call confirmation (each, a “Base Capped Call Confirmation”) dated the date hereof, and in connection with
the issuance of any Option Securities, the Company and the Capped Call Counterparties may enter into additional capped call transactions,
in each case pursuant to an additional capped call confirmation (each, an “Additional Capped Call Confirmation”) to
be dated the date on which the option granted to the Initial Purchasers pursuant to Section ‎2
hereof to purchase such Option Securities is exercised (the Additional Capped Call Confirmations together with the Base Capped
Call Confirmations, the “Capped Call Confirmations”).


 






    


     


    

 





The Company hereby confirms its agreement
with the several Initial Purchasers concerning the purchase and sale of the Securities, as follows:


 


1.            
Offering Memorandum and Transaction Information. The Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon an exemption therefrom.
The Company has prepared a preliminary offering memorandum dated September 17, 2020 (the “Preliminary Offering Memorandum”)
and will prepare an offering memorandum dated the date hereof (the “Offering Memorandum”) setting forth information
concerning the Company and the Securities, the Capped Call Confirmations and the Underlying Securities. Copies of the Preliminary
Offering Memorandum have been, and copies of the Offering Memorandum will be, delivered by the Company to the Initial Purchasers
pursuant to the terms of this purchase agreement (this “Agreement”). The Company hereby confirms that it has authorized
the use of the Preliminary Offering Memorandum, the other Time of Sale Information (as defined below) and the Offering Memorandum
in connection with the offering and resale of the Securities by the Initial Purchasers in the manner contemplated by this Agreement.
References herein to the Preliminary Offering Memorandum, the Time of Sale Information and the Offering Memorandum shall be deemed
to refer to and include any document incorporated by reference therein and any reference to “amend,” “amendment”
or “supplement” with respect to the Preliminary Offering Memorandum or the Offering Memorandum shall be deemed to refer
to and include any documents filed with the U.S. Securities and Exchange Commission (the “Commission”) after such date
and incorporated by reference therein.


 


At or prior to 9:10 p.m. New York City time
on the date hereof (the “Time of Sale”), the Company had prepared the following information (collectively, the “Time
of Sale Information”): the Preliminary Offering Memorandum, as supplemented and amended by the written communications listed
on Annex A hereto.


 


2.            
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements set forth
herein and subject to the conditions set forth herein, the Company agrees to issue and sell the Underwritten Securities to the
several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase
from the Company the respective principal amount of Underwritten Securities set forth opposite such Initial Purchaser’s name
in Schedule 1 hereto at a price equal to 96.25% of the principal amount thereof (the “Purchase Price”) plus accrued
interest, if any, from September 22, 2020 to the Closing Date (as defined below).


 


In addition, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, the Company agrees to issue and sell
the Option Securities to the several Initial Purchasers as provided in this Agreement, and the Initial Purchasers, on the basis
of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, shall have the
option to purchase, severally and not jointly, from the Company the Option Securities at the Purchase Price plus accrued interest,
if any, from September 22, 2020 to the date of payment and delivery.


 






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If any Option Securities are to be purchased,
the principal amount of Option Securities to be purchased by each Initial Purchaser shall be the principal amount of Option Securities
which bears the same ratio to the aggregate principal amount of Option Securities being purchased as the principal amount of Underwritten
Securities set forth opposite the name of such Initial Purchaser in Schedule 1 hereto (or such amount increased as set forth in
Section ‎10 hereof) bears to the aggregate principal amount
of Underwritten Securities being purchased from the Company by the several Initial Purchasers, subject, however, to such adjustments
to eliminate Securities in denominations other than $1,000 as the Representative in its sole discretion shall make.


 


The Initial Purchasers may exercise the
option to purchase the Option Securities at any time in whole, or from time to time in part, by written notice from the Representative
to the Company for the sole purpose of covering sales in excess of the aggregate principal amount of the Underwritten Securities;
provided that any Additional Closing Date (as defined below) shall occur within a period (the “Exercise Period”)
of thirteen calendar days from, and including, the Closing Date (as defined below). Such notice shall set forth the aggregate principal
amount of Option Securities plus accrued interest as to which the option is being exercised and the date and time when the Option
Securities are to be delivered and paid for which may be the same date and time as the Closing Date (as hereinafter defined) but
shall not be earlier than the Closing Date nor later than the tenth full business day (as hereinafter defined) after the date of
such notice (unless such time and date are postponed in accordance with the provisions of Section ‎10
hereof); provided, in each case, that such date and time fall within the Exercise Period. Except as separately agreed in writing
by the Company and the Representative, any such notice shall be given at least two business days prior to the date and time of
delivery specified therein; provided that any notice where the Option Securities are to be delivered on the Closing Date
shall be given at least one business day prior to the Closing Date.


 


(b)           
The Company understands that the Initial Purchasers intend to offer the Securities for resale on the terms set forth in
the Time of Sale Information. Each Initial Purchaser, severally and not jointly, represents, warrants and agrees that:


 


(i)           
it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a “QIB”) and
an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);


 


(ii)           
it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by
means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or in any manner
involving a public offering within the meaning of Section 4(a)(2) of the Securities Act; and


 


(iii)           
it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities
as part of their initial offering except to persons whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A
under the Securities Act (“Rule 144A”) and in connection with each such sale, it has taken or will take reasonable
steps to ensure that the purchaser of the Securities is aware that such sale is being made in reliance on Rule 144A;


 






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(c)           
Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions
to be delivered to the Initial Purchasers pursuant to Sections ‎6(f) and ‎6(g),
counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations
and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph
‎(b) above, and each Initial Purchaser hereby consents to such reliance.


 


(d)           
The Company acknowledges and agrees that the Initial Purchasers may offer and sell Securities to or through any affiliate
of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser,
provided that such offers and sales shall be made in accordance with the provisions of this Agreement.


 


(e)           
Payment for the Securities shall be made by wire transfer in immediately available funds to the account specified by the
Company to the Representative in the case of the Underwritten Securities, at the offices of Davis Polk & Wardwell LLP at 1600
El Camino Real, Menlo Park, CA 94025 at 10:00 A.M. New York City time on September 22, 2020, or at such other time or place on
the same or such other date, not later than the fifth business day thereafter, as the Representative and the Company may agree
upon in writing or, in the case of the Option Securities, on the date and at the time and place specified by the Representative
in the written notice of the Initial Purchasers’ election to purchase such Option Securities. The time and date of such payment
for the Underwritten Securities is referred to herein as the “Closing Date” and the time and date for such payment
for the Option Securities, if other than the Closing Date, is herein referred to as the “Additional Closing Date”.


 


Payment for the Securities to be purchased
on the Closing Date or the Additional Closing Date, as the case may be, shall be made against delivery to the nominee of The Depository
Trust Company (“DTC”), for the respective accounts of the several Initial Purchasers of the Securities to be purchased
on such date of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer
taxes payable in connection with the sale of such Securities duly paid by the Company. The Global Note will be made available for
inspection by the Representative at the office of J.P. Morgan Securities LLC set forth above not later than 1:00 P.M., New York
City time, on the business day prior to the Closing Date or the Additional Closing Date, as the case may be.


 


(f)            The
Company acknowledges and agrees that each Initial Purchaser is acting solely in the capacity of an arm’s length
contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company
or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall
consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability
to the Company with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the
transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of
the Representative or such Initial Purchaser and shall not be on behalf of the Company or any other person.


 






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3.            
Representations and Warranties of the Company. The Company represents and warrants to each Initial Purchaser that:


 


(a)           
Preliminary Offering Memorandum. The Preliminary Offering Memorandum, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty
with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through the Representative expressly for use in any Preliminary Offering
Memorandum, it being understood and agreed that the only such information furnished by any Initial Purchaser consists of the information
described as such in Section ‎7(b) hereof.


 


(b)           
Time of Sale Information. The Time of Sale Information, at the Time of Sale, did not, and as of the Closing Date
and as of the Additional Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions
made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Company in writing
by such Initial Purchaser through the Representative expressly for use in such Time of Sale Information, it being understood and
agreed that the only such information furnished by any Initial Purchaser consists of the information described as such in Section
‎7(b) hereof.


 


(c)            Additional
Written Communications. Other than the Preliminary Offering Memorandum and the Offering Memorandum, the Company
(including its agents and representatives, other than the Initial Purchasers in their capacity as such) has not prepared,
made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any
 “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives
(other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Written Communication”)
other than (i) the Preliminary Offering Memorandum, (ii) the Offering Memorandum, (iii) the documents listed on Annex A
hereto, including a term sheet substantially in the form of Annex B hereto, which constitute part of the Time of Sale
Information, and (iv) each electronic road show and any other written communications approved in writing in advance by the
Representative. Each such Issuer Written Communication does not conflict with the information contained in the Time of Sale
Information, and when taken together with the Time of Sale Information, did not, and as of the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or
omissions made in each such Issuer Written Communication in reliance upon and in conformity with information relating to any
Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representative expressly for use
in such Issuer Written Communication, it being understood and agreed that the only such information furnished by any Initial
Purchaser consists of the information described as such in Section ‎7(b)
hereof.


 






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(d)           
Offering Memorandum. As of the date of the Offering Memorandum and as of the Closing Date and as of the Additional
Closing Date, as the case may be, the Offering Memorandum does not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through the Representative expressly for use in the Offering Memorandum, it being understood
and agreed that the only such information furnished by any Initial Purchaser consists of the information described as such in Section
‎7(b) hereof.


 


(e)           
Incorporated Documents. The documents incorporated by reference in the Offering Memorandum or the Time of Sale Information,
when they were filed with the Commission conformed or will conform, as the case may be, in all material respects to the requirements
of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the
 “Exchange Act”) and, as of the date such documents were filed or will be filed with the Commission, such documents
did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.


 


(f)            Financial
Statements. The financial statements and the related notes thereto of the Company and its consolidated subsidiaries
included or incorporated by reference in the Time of Sale Information and the Offering Memorandum present fairly in all
material respects the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the
results of their operations and the changes in their cash flows for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting principles (“GAAP”) in the United States applied
on a consistent basis throughout the periods covered thereby; and the other financial information included or incorporated by
reference in each of the Time of Sale Information and the Offering Memorandum has been derived from the accounting records of
the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby.


 






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(g)           
No Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated
by reference in each of the Time of Sale Information and the Offering Memorandum, (i) there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development that
could reasonably be expected to result in a material adverse change, in or affecting the business, properties, management, financial
position, stockholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company
and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company
and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any material loss
or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in each of the Time of Sale Information and the Offering Memorandum.


 


(h)           
Organization and Good Standing. The Company and its subsidiaries have been duly organized and are validly existing
and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are
in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the failure to be so qualified or in good standing or have such
power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management,
financial position, stockholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as
a whole or on the performance by the Company of its obligations under the Transaction Documents (as defined below) (a “Material
Adverse Effect”). The Company does not own or control, directly or indirectly, any corporation, association or other entity
other than (i) any subsidiaries listed on Exhibit 21 to the Company’s Annual Report on Form 10-K for the most recently ended
fiscal year and (ii) any subsidiaries not required to be listed on Exhibit 21 by Item 601 of Regulation S-K under the Exchange
Act.


 


(i)            Capitalization.
The Company has an authorized capitalization as set forth in the Time of Sale Information and the Offering Memorandum under
the heading “Capitalization”; all the outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and are not subject to any pre-emptive or similar rights;
except as described in or expressly contemplated by the Time of Sale Information and the Offering Memorandum, there are no
outstanding rights (including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of
any capital stock of the Company or any such subsidiary, any such convertible or exchangeable securities or any such rights,
warrants or options; the capital stock of the Company conforms in all material respects to the description thereof contained
in the Time of Sale Information and the Offering Memorandum; and all the outstanding shares of capital stock or other equity
interests of each subsidiary owned, directly or indirectly, by the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other claim of any third party, except as disclosed
in the Time of Sale Information and the Offering Memorandum.


 






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(j)           
Stock Options. With respect to the stock options (the “Stock Options”) granted pursuant to the stock-based
compensation plans of the Company and its subsidiaries (the “Company Stock Plans”), (i) each Stock Option intended
to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (ii) each grant of a Stock Option
was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the “Grant
Date”) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or
a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or
written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto,
(iii) each such grant was made in accordance with the terms of the Company Stock Plans, the Exchange Act and all other applicable
laws and regulatory rules or requirements, including the rules of the New York Stock Exchange (the “Exchange”) and
any other exchange on which Company securities are traded, (iv) the per share exercise price of each Stock Option was equal to
at least the fair market value of a share of Common Stock on the applicable Grant Date and (v) each such grant was properly accounted
for in accordance with GAAP in the financial statements (including the related notes) of the Company and disclosed in the Company’s
filings with the Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted,
and there is no and has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise coordinating
the grant of Stock Options with, the release or other public announcement of material information regarding the Company or its
subsidiaries or their results of operations or prospects, in each case, in a manner that constitutes a violation of the Exchange
Act or other applicable law.


 


(k)           
Due Authorization. The Company has full corporate right, power and authority to execute and deliver this Agreement,
the Indenture, the Capped Call Confirmations and the Securities (collectively, the “Transaction Documents”) and to
perform its obligations hereunder and thereunder; and all corporate action required to be taken for the due and proper authorization,
execution and delivery by it of each of the Transaction Documents and the consummation by it of the transactions contemplated thereby
or by the Time of Sale Information and the Offering Memorandum has been duly and validly taken.


 






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(l)           
 The Indenture. The Indenture has been duly authorized by the Company and, when duly executed and delivered in accordance
with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency
or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability
(collectively, the “Enforceability Exceptions”); and on the Closing Date the Indenture will conform in all material
respects to the applicable requirements of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Trust Indenture Act”).


 


(m)           
Purchase Agreement.  This Agreement has been duly authorized, executed and delivered by the Company.


 


(n)           
The Securities. The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued
and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and
will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture. When executed and delivered, the
Securities will be in the form contemplated by the Indenture.


 


(o)           
The Underlying Securities. Upon issuance and delivery of the Securities in accordance with this Agreement and the
Indenture, the Securities will be convertible at the option of the holder thereof into cash, shares of the Underlying Securities
or a combination of cash and shares of Underlying Securities, at the Company’s election, in accordance with, and subject
to, the terms of the Securities and the Indenture; the maximum number of Underlying Securities initially issuable upon conversion
of the Securities (assuming full physical settlement of the Securities upon conversion and the maximum conversion rate under any
 “make-whole” adjustment (including upon optional redemption) applies) (the “Conversion Shares”) have been
duly authorized and reserved and, when and to the extent issued upon conversion of the Securities in accordance with the terms
of the Securities and the Indenture, will be validly issued, fully paid and non-assessable, and the issuance of any Underlying
Securities will not be subject to any preemptive or similar rights under the Wisconsin Business Corporation Law, the Restated Articles
of Incorporation of the Company or any agreement to which the Company or any of its subsidiaries is a party, or otherwise created
by the Company.


 


(p)           
Capped Call Confirmations. The Capped Call Confirmations have been duly authorized by the Company. Each Base Capped
Call Confirmation has been duly executed and delivered by the Company and constitutes a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms, and any Additional Capped Call Confirmation will, on
the date such Additional Capped Call Confirmation is entered into, have been duly executed and delivered by the Company and constitute
a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject in each
case to the Enforceability Exceptions.


 






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(q)           
 Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description
thereof contained in each of the Time of Sale Information and the Offering Memorandum.


 


(r)           
No Violation or Default. Neither the Company nor any of its significant subsidiaries is (i) in violation of
its articles of incorporation or by-laws or similar organizational documents; (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its significant subsidiaries is bound or to which
any property or asset of the Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case
of clauses ‎(ii) and ‎(iii)
above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.


 


(s)           
No Conflicts. The execution, delivery and performance by the Company of each of the Transaction Documents, the issuance
and sale of the Securities (including the issuance of the Underlying Securities upon conversion thereof) and the consummation of
the transactions contemplated by the Transaction Documents, the Time of Sale Information and the Offering Memorandum will not (i)
conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in
the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon
any property, right or asset of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject,
(ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or
any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority, except in the case of (i) and (iii) above, for any such conflicts,
breaches, violations, defaults, terminations, modifications, accelerations, liens, charges or encumbrances which would not, individually
or in the aggregate, have a Material Adverse Effect.


 


(t)            No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or
arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of
each of the Transaction Documents, the issuance and sale of the Securities (including the issuance of the Underlying
Securities upon conversion thereof) and the consummation of the transactions contemplated by the Transaction Documents or the
Time of Sale Information and the Offering Memorandum, except for such consents, approvals, authorizations, orders and
registrations or qualifications as may be required (i) under applicable state securities laws in connection with the purchase
and resale of the Securities by the Initial Purchasers or (ii) by the Exchange in connection with the listing of the
Underlying Securities on the Exchange.


 






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(u)           
Legal Proceedings. Except as described in each of the Time of Sale Information and the Offering Memorandum, there
are no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings
(“Actions”) pending to which the Company or any of its subsidiaries is a party or to which any property of the Company
or any of its subsidiaries is the subject that, individually or in the aggregate, if determined adversely to the Company or any
of its subsidiaries, would reasonably be expected to have a Material Adverse Effect; and, to the knowledge of the Company, no such
Actions are threatened or contemplated by any governmental or regulatory authority or threatened by others.


 


(v)           
Independent Accountants. Deloitte & Touche LLP, who have certified certain financial statements of the Company
and its subsidiaries, is an independent registered public accounting firm with respect to the Company and its subsidiaries within
the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States)
and as required by the Securities Act.


 


(w)           
Title to Real and Personal Property. The Company and its subsidiaries have good and marketable title to, or have
valid rights to lease or otherwise use, all items of real and personal property that are material to the businesses of the Company
and its subsidiaries taken as a whole, in each case free and clear of all liens, charges, encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.


 


(x)            Intellectual
Property. (i) The Company and its subsidiaries own or have adequate rights to use any and all issued patents, patent
applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, domain names,
other source indicators, copyrights, copyrightable works, software, know-how, trade secrets, inventions, systems, procedures,
proprietary information, confidential information and any and all other worldwide intellectual property, industrial property
and proprietary rights, including any and all goodwill associated therewith (collectively, “Intellectual
Property”), in each case, necessary for the conduct of their respective businesses as currently conducted by them as
described in the Time of Sale Information and the Offering Memorandum (the “Company Intellectual Property”); (ii)
the Company’s and its subsidiaries’ conduct of their respective businesses as currently conducted by them as
described in the Time of Sale Information and the Offering Memorandum does not infringe, misappropriate or otherwise violate,
and has not infringed, misappropriated or otherwise violated, any Intellectual Property of any person; (iii) neither the
Company nor any of its subsidiaries have received any written notice of any claim relating to Intellectual Property
(including with respect to the ownership, validity, enforceability or scope of any Company Intellectual Property or the
infringement, misappropriation or other violation of Intellectual Property), and no such claim is pending or, to the
knowledge of the Company, threatened against the Company or any of its subsidiaries; (iv) to the knowledge of the Company,
the Company Intellectual Property is not being infringed, misappropriated or otherwise violated, and has not been infringed,
misappropriated or otherwise violated, by any person; (v) all Company Intellectual Property is valid and enforceable, and all
Company Intellectual Property owned or purported to be owned by the Company or any of its subsidiaries is owned solely and
exclusively by the Company or one of its subsidiaries, in each case, free and clear of all liens, encumbrances, defects or
other restrictions; and (vi) the Company and its subsidiaries have taken commercially reasonably steps to maintain the
confidentiality of all Company Intellectual Property the value of which to the Company or any of its subsidiaries is
contingent upon maintaining the confidentiality thereof, including any trade secrets and confidential information owned, used
or held for use by the Company or any of its subsidiaries, except in each case with respect to the events or conditions set
forth in (i) through (vi) hereof, as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 






    11


     


    

 


(y)           
No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of
its subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers or other affiliates of the
Company or any of its subsidiaries, on the other, that would be required by the Securities Act to be described in a registration
statement to be filed with the Commission and that is not so described in the each of Time of Sale Information and the Offering
Memorandum.


 


(z)           
Investment Company Act. The Company is not and, immediately after giving effect to the transactions contemplated
by the Capped Call Confirmations and the offering and sale of the Securities and the application of the proceeds thereof as described
in the Time of Sale Information and the Offering Memorandum, will not be required to register as an “investment company”
or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company Act”).


 


(aa)           
Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns
required to be paid or filed through the date hereof, except where such failure to pay or file would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and except as otherwise disclosed in each of the Time of Sale
Information and the Offering Memorandum, there is no tax deficiency that has been, or would reasonably be expected to be, asserted
against the Company or any of its subsidiaries or any of their respective properties or assets, except as would not reasonably
be expected to have a Material Adverse Effect.


 


(bb)            Licenses
and Permits. The Company and its subsidiaries possess all licenses, sub-licenses, certificates, permits and other
authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in each of the Time of Sale Information and the Offering Memorandum,
except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse
Effect; and except as described in each of the Time of Sale Information and the Offering Memorandum, neither the Company nor
any of its subsidiaries has received notice of any revocation or modification of any such license, sub-license, certificate,
permit or authorization or has any reason to believe that any such license, sub-license, certificate, permit or authorization
will not be renewed in the ordinary course except as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.


 






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(cc)           
No Labor Disputes. No labor disturbance by or material dispute with employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is contemplated or threatened and the Company is not aware of any existing or imminent
labor disturbance by, or dispute with, the employees of any of its or its subsidiaries’ principal suppliers, contractors
or customers, except as would not have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received
any notice of cancellation or termination with respect to any collective bargaining agreement to which it is a party.


 


(dd)           
Certain Environmental Matters. Except as described in each of the Time of Sale Information and the Offering Memorandum,
(i) the Company and its subsidiaries (x) are in compliance with all applicable federal, state, local and foreign laws (including
common law), rules, regulations, requirements, decisions, judgments, decrees, orders and other legally enforceable requirements
relating to pollution or the protection of human health or safety, the environment, natural resources, hazardous or toxic substances
or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (y) have received and are in compliance
with all permits, licenses, certificates or other authorizations or approvals required of them under any Environmental Laws to
conduct their respective businesses; and (z) have not received written notice of any actual or potential liability or obligation
under or relating to, or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation
of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any
event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities associated
with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for
any such matter as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii)
(x) there is no proceeding that is pending, or that is known to be contemplated, against the Company or any of its subsidiaries
under any Environmental Laws in which a governmental entity is also a party, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (y) the Company and its significant subsidiaries are not aware of any
facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or contaminants, that would reasonably be expected to have a material effect
on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (z) none of the Company
or its subsidiaries anticipates material capital expenditures relating to any Environmental Laws.








 






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(ee)           
 Compliance with ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group”
(defined as any entity, whether or not incorporated, that is under common control with the Company within the meaning of Section
4001(a)(14) of ERISA or any entity that would be regarded as a single employer with the Company under Section 414(b),(c),(m) or
(o) of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each, a “Plan”)
has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or administrative
exemption; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no Plan
has failed (whether or not waived), or is reasonably expected to fail, to satisfy the minimum funding standards (within the meaning
of Section 302 of ERISA or Section 412 of the Code) applicable to such Plan; (iv) no Plan is, or is reasonably expected to be,
in “at risk status” (within the meaning of Section 303(i) of ERISA), and no Plan that is a “multiemployer plan”
within the meaning of Section 4001(a)(3) of ERISA is in “endangered status” or “critical status” (within
the meaning of Sections 304 and 305 of ERISA); (v) the fair market value of the assets of each Plan exceeds the present value of
all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (vi) no “reportable
event” (within the meaning of Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred or is reasonably
expected to occur; (vii) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified, and nothing
has occurred, whether by action or by failure to act, which would cause the loss of such qualification; (viii) neither the Company
nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other
than contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation, in the ordinary course and without default)
in respect of a Plan (including a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA); and (ix)
none of the following events has occurred or is reasonably likely to occur: (A) a material increase in the aggregate amount of
contributions required to be made to all Plans by the Company or its Controlled Group affiliates in the current fiscal year of
the Company and its Controlled Group affiliates compared to the amount of such contributions made in the Company’s and its
Controlled Group affiliates’ most recently completed fiscal year; or (B) a material increase in the Company and its subsidiaries’
 “accumulated post-retirement benefit obligations” (within the meaning of Accounting Standards Codification Topic 715-60)
compared to the amount of such obligations in the Company and its subsidiaries’ most recently completed fiscal year, except
in each case with respect to the events or conditions set forth in (i) through (ix) hereof, as would not, individually or in the
aggregate, have a Material Adverse Effect.


 


(ff)            Disclosure
Controls. The Company maintains an effective system of “disclosure controls and procedures” (as defined in
Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in
reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions
regarding required disclosure. The Company has carried out evaluations of the effectiveness of its disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act.


 






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(gg)           
Accounting Controls. The Company maintains a system of “internal control over financial reporting” (as
defined in Rule 13a-15(f) of the Exchange Act) that has been designed to comply with the requirements of the Exchange Act and has
been designed by, or under the supervision of, the Company’s principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP, including, but not limited to internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences; and (v) interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Time of Sale Information and the Offering Memorandum fairly presents the
information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines
applicable thereto. Except as disclosed in the Time of Sale Information and the Offering Memorandum, there are no material weaknesses
in the Company’s internal controls. The Company’s auditors and the Audit Committee of the Board of Directors of the
Company have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal controls
over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize
and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who
have a significant role in the Company’s internal controls over financial reporting.


 


(hh)           
eXtensible Business Reporting Language. The interactive data in eXtensible Business Reporting Language included or
incorporated by reference in the Time of Sale Information and the Offering Memorandum fairly presents the information called for
in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.


 


(ii)            Insurance. Except
as would not reasonably be expected to have a Material Adverse Effect, the Company and its subsidiaries have insurance
covering their respective properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as the Company believes in good faith are adequate to
protect the Company and its subsidiaries and their respective businesses, taken as a whole; and neither the Company nor any
of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it
will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to continue its business.


 






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(jj)           
No Unlawful Payments. Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any
director, officer or employee of the Company or any of its subsidiaries or any agent, affiliate or other person associated with
or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise
or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee
, including of any government-owned or controlled entity or of a public international organization, or any person acting in an
official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political
office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable
law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,
or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption
law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including,
without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company
and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures
designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.


 


(kk)           
Compliance with Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been
conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements,
including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes
of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering
Laws is pending or, to the knowledge of the Company, threatened.


 






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(ll)            No
Conflicts with Sanctions Laws. Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any
director, officer, employee, agent, affiliate or other person associated with or acting on behalf of the Company or any of
its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. government,
(including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”) or the U.S. Department of Commerce or the U.S. Department of State and including, without limitation,
the designation as a “specially designated national” or “blocked person”), the United Nations
Security Council (“UNSC”), the European Union, Canada, Her Majesty’s Treasury of the United Kingdom
(“HMT”), or other relevant sanctions authority with jurisdiction over the Company’s activities
(collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a
country or territory that is the subject or target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North
Korea and Syria (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds
of the offering and sale of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any
person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate
any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any
person (including any person participating in the transaction, whether as initial purchaser, underwriter, advisor, investor
or otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in and are
not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is
or was the subject or the target of Sanctions or with any Sanctioned Country.


 


(mm)           
No Restrictions on Subsidiaries. Except as described in or expressly contemplated by the Time of Sale Information
and the Offering Memorandum, no subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution
on such subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other
subsidiary of the Company.


 


(nn)           
No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Initial
Purchaser for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.


 


(oo)           
Rule 144A Eligibility. On the Closing Date, the Securities will not be of the same class as securities listed on
a national securities exchange registered under Section 6 of the Exchange Act or quoted in an automated inter-dealer quotation
system; and each of the Time of Sale Information, as of the Time of Sale, and the Offering Memorandum, as of its date, contains
or will contain all the information that, if requested by a prospective purchaser of the Securities, would be required to be provided
to such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act.


 


(pp)            No
Integration. Neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) has, directly or
through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.


 






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(qq)           
No General Solicitation or Directed Selling Efforts. None of the Company or any of its affiliates or any other person
acting on its or their behalf (other than the Initial Purchasers, as to which no representation is made) has (i) solicited offers
for, or offered or sold, the Securities by means of any form of general solicitation or general advertising within the meaning
of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities
Act or (ii) engaged in any directed selling efforts within the meaning of Regulation S under the Securities Act (“Regulation
S”), and all such persons have complied with the offering restrictions requirement of Regulation S.


 


(rr)           
Securities Law Exemptions. Assuming the accuracy of the representations and warranties of the Initial Purchasers
contained in Section ‎2(b) and their compliance with their agreements set forth
therein, it is not necessary, in connection with the issuance and sale of the Securities to the Initial Purchasers and the offer,
resale and delivery of the Securities by the Initial Purchasers in the manner contemplated by this Agreement, the Time of Sale
Information and the Offering Memorandum, to register the Securities under the Securities Act or to qualify the Indenture under
the Trust Indenture Act.


 


(ss)           
No Stabilization. The Company has not taken, directly or indirectly, any action designed to or that could reasonably
be expected to cause or result in any stabilization or manipulation of the price of the Securities.


 


(tt)           
Margin Rules. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof
by the Company as described in the Time of Sale Information and the Offering Memorandum will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.


 


(uu)           
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act
and Section 21E of the Exchange Act) contained in the Time of Sale Information and the Offering Memorandum has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.


 


(vv)           
Statistical and Market Data. Nothing has come to the attention of the Company that has caused the Company to believe
that the statistical and market-related data included or incorporated by reference in the Time of Sale Information and the Offering
Memorandum is not based on or derived from sources that are reliable and accurate in all material respects.


 






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(ww)            IT
Systems; Cybersecurity. The Company and its subsidiaries’ respective information technology assets, equipment,
computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT
Systems”) are adequate for, and operate and perform in all material respects as required in connection with, the
operation of the respective businesses of the Company and its subsidiaries as currently conducted by them as described in the
Time of Sale Information and the Offering Memorandum, and to the knowledge of the Company, free and clear in each case of all
material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries
have taken commercially reasonable measures to maintain and protect their material confidential information and the
integrity, continuous operation, redundancy and security of the IT Systems, and, to the knowledge of the Company, there have
been no malfunctions, failures, breaches, destructions, losses, disablements, violations, outages, unauthorized disclosures
or unauthorized uses of, or unauthorized accesses to, the same, except for those that have been fully remedied without
material cost or liability or the duty to notify any other person or entity, nor any incidents under internal review or
investigations relating to the same.


 


(xx)           
Data Protection. Except as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, with regard to the Company’s and its subsidiaries’ receipt, collection, handling, processing, sharing,
transfer, usage, import, export, disclosure, interception, security, storage and disposal of any and all personal, personally identifiable,
household, sensitive, confidential or regulated data (collectively, “Personal Data”), (i) the Company and its subsidiaries
currently comply and at all times have complied with, and have implemented commercially reasonable policies and procedures to ensure
compliance with, all applicable laws, regulations, rules, judgments, orders, internal and external policies and contractual obligations
(including, to the extent applicable, the California Consumer Privacy Act and the European Union General Data Protection Regulation)
(“Privacy Legal Obligations”); (ii) the Company and its subsidiaries have required and do require all third parties
to which they provide any Personal Data to maintain the privacy and security of such Personal Data and to comply with applicable
Privacy Legal Obligations, including by contractually requiring such third parties to protect such Personal Data from unauthorized
access, use and/or disclosure; (iii) the Company and its subsidiaries maintain, and at all times have maintained, reasonable data
security policies and procedures designed to protect the confidentiality, security, and integrity of Personal Data and to prevent
unauthorized use of and access to Personal Data; (iv) to the knowledge of the Company, there has been no unauthorized access to,
or use or disclosure of, any such Personal Data collected, maintained, handled, stored, transferred, used, disclosed or otherwise
processed by or for the Company or any of its subsidiaries; (v) neither the Company nor any of its subsidiaries have received any
notification of or complaint regarding, or is aware of any other facts that would reasonably indicate, non-compliance with any
Privacy Legal Obligation; and (vi) there is no pending, or to the Company’s knowledge, threatened action, suit, proceeding
or claim by or before any court or governmental agency, authority or body alleging non-compliance by the Company or any of its
subsidiaries with any Privacy Legal Obligation.


 


(yy)           
Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002,
as amended and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”) applicable
as of or prior to the date hereof, including Section 402 related to loans and Sections 302 and 906 related to certifications.


 









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(zz)           
Lock-Ups. Each director and officer (within the meaning of Rule 16a-1(f) under the Exchange Act) of the Company
(each such officer, an “executive officer”) has executed and delivered to the Representative a lock-up agreement in
the form of Exhibit A hereto (a “Lock-Up Agreement”).


 


4.            
Further Agreements of the Company. The Company covenants and agrees with each Initial Purchaser that:


 


(a)            
Delivery of Copies. The Company will deliver to the Initial Purchasers as many copies of the Preliminary Offering
Memorandum, any other Time of Sale Information, any Issuer Written Communication and the Offering Memorandum (including all amendments
and supplements thereto) as the Representative may reasonably request.


 


(b)           
Offering Memorandum, Amendments or Supplements. Before finalizing the Offering Memorandum or making or distributing
any amendment or supplement to any of the Time of Sale Information or the Offering Memorandum or filing with the Commission any
document that will be incorporated by reference therein, the Company will furnish to the Representative and counsel for the Initial
Purchasers a copy of the proposed Offering Memorandum or such amendment or supplement or document to be incorporated by reference
therein for review, and will not distribute any such proposed Offering Memorandum, amendment or supplement or file any such document
with the Commission to which the Representative reasonably objects in a timely manner.


 


(c)            
Additional Written Communications. Before making, preparing, using, authorizing, approving or referring to any Issuer
Written Communication, the Company will furnish to the Representative and counsel for the Initial Purchasers a copy of such written
communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which
the Representative reasonably objects in a timely manner.


 


(d)             Notice
to the Representative. The Company will advise the Representative promptly, and confirm such advice in writing, (i) of
the issuance by any governmental or regulatory authority of any order preventing or suspending the use of any of the Time of
Sale Information, any Issuer Written Communication or the Offering Memorandum or the initiation or threatening of any
proceeding for that purpose; (ii) of the occurrence or development of any event at any time prior to the completion of the
initial offering of the Securities as a result of which any of the Time of Sale Information, any Issuer Written Communication
or the Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when such
Time of Sale Information, Issuer Written Communication or the Offering Memorandum is delivered to a purchaser, not
misleading; and (iii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
the Company will use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use
of any of the Time of Sale Information, any Issuer Written Communication or the Offering Memorandum or suspending any such
qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.


 






    20


     


    

 


(e)            
Ongoing Compliance of the Offering Memorandum and Time of Sale Information. (1) If at any time prior to the completion
of the initial offering of the Securities (i) any event or development shall occur or condition shall exist as a result of which
the Offering Memorandum as then amended or supplemented would include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Offering Memorandum to
comply with law, the Company will as promptly as practicable notify the Initial Purchasers thereof and forthwith prepare and, subject
to paragraph ‎(b) above, furnish to the Initial Purchasers such amendments or
supplements to the Offering Memorandum (or any document to be filed with the Commission and incorporated by reference therein)
as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented (or including such document
to be incorporated by reference therein) will not, in the light of the circumstances existing when the Offering Memorandum is delivered
to a purchaser, be misleading or so that the Offering Memorandum will comply with law and (2) if at any time prior to the Closing
Date (i) any event or development shall occur or condition shall exist as a result of which any of the Time of Sale Information
as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it
is necessary to amend or supplement any of the Time of Sale Information to comply with law, the Company will as promptly as practicable
notify the Initial Purchasers thereof and forthwith prepare and, subject to paragraph ‎(b)
above, furnish to the Initial Purchasers such amendments or supplements to any of the Time of Sale Information (or any document
to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the
Time of Sale Information as so amended or supplemented will not, in light of the circumstances under which they were made, be misleading.


 


(f)            
Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Representative shall reasonably request and will continue such qualifications in effect so long
as required for the offering and resale of the Securities; provided that the Company shall not be required to (i) qualify
as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to
taxation in any such jurisdiction if it is not otherwise so subject.


 


(g)            Clear
Market. For a period of 60 days after the date of the offering of the Securities, the Company will not (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with,
the Commission a registration statement under the Securities Act relating to, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or publicly disclose the intention to undertake any of the
foregoing, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Common Stock or any such other securities, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the
prior written consent of the Representative, other than (A) the Securities to be sold hereunder (including the issuance of
any Underlying Securities upon conversion of the Securities), (B) any shares of Common Stock of the Company issued upon the
exercise (including a cashless exercise) or vesting of options or other awards or any conversion or exchange of any other
equity security granted under existing employee benefit plans or other arrangements described in the Time of Sale Information
and the Offering Memorandum (the “Company Benefit Plans”), (C) the issuance by the Company of securities
convertible into or exercisable for shares of Common Stock pursuant to the Company Benefit Plans, (D) the entry by the
Company into the Capped Call Confirmations and (E) any shares of Common Stock issuable upon conversion of shares of the Class
B Common Stock of the Company, par value $1.00 per share, outstanding as of the date hereof.


 






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(h)           
Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in each of
the Time of Sale Information and the Offering Memorandum under the heading “Use of Proceeds”.


 


(i)             
No Stabilization. The Company will not take, directly or indirectly, any action designed to or that would reasonably
be expected to cause or result in any stabilization or manipulation of the price of the Securities and will not take any action
prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.


 


(j)            
Underlying Securities. The Company will reserve and keep available at all times, free of pre-emptive rights, shares
of Common Stock for the purpose of enabling the Company to satisfy all obligations to issue the Underlying Securities upon conversion
of the Securities. The Company will use its reasonable best efforts to cause the Underlying Securities to be listed on the Exchange.


 


(k)            
Supplying Information. While the Securities remain outstanding and are “restricted securities” within
the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which the Company is not subject
to and in compliance with Section 13 or 15(d) of the Exchange Act, furnish to holders of the Securities, prospective purchasers
of the Securities designated by such holders and securities analysts, in each case upon request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 


(l)             
DTC. The Company will assist the Initial Purchasers in arranging for the Securities to be eligible for clearance
and settlement through DTC.


 






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(m)           
No Resales by the Company. During the period from the Closing Date until one year after the Closing Date or the
Additional Closing Date, if applicable, the Company will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Securities that have been acquired by any of them, except for Securities purchased
by the Company or any of its affiliates and resold in a transaction registered under the Securities Act.


 


(n)           
No Integration. Neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) will, directly
or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined
in the Securities Act), that is or will be integrated with the sale of the Securities in a manner that would require registration
of the Securities under the Securities Act.


 


(o)           
No General Solicitation or Directed Selling Efforts. None of the Company or any of its affiliates or any other person
acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) solicit offers for,
or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act
or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering
restrictions requirement of Regulation S.


 


5.            
Certain Agreements of the Initial Purchasers. Each Initial Purchaser hereby represents and agrees that it has not
and will not use, authorize use of, refer to, or participate in the planning for use of, any written communication that constitutes
an offer to sell or the solicitation of an offer to buy the Securities other than (i) the Preliminary Offering Memorandum and the
Offering Memorandum, (ii) a written communication that contains no “issuer information” (as defined in Rule 433(h)(2)
under the Securities Act) that was not included (including through incorporation by reference) in the Time of Sale Information
or the Offering Memorandum, (iii) any written communication listed on Annex A or prepared pursuant to Section ‎4(c)
above (including any electronic road show), (iv) any written communication prepared by such Initial Purchaser and approved by the
Company in advance in writing or (v) any written communication relating to or that contains the terms of the Securities and/or
other information that was included (including through incorporation by reference) in the Time of Sale Information or the Offering
Memorandum.


 


6.            
Conditions of Initial Purchasers’ Obligations. The obligation of each Initial Purchaser to purchase the Underwritten
Securities on the Closing Date or the Option Securities on the Additional Closing Date, as the case may be, as provided herein
is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:


 


(a)             Representations
and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date
hereof and on and as of the Closing Date or the Additional Closing Date (or such other date specified in a representation or
warranty), as the case may be; and the statements of the Company and its officers made in any certificates delivered pursuant
to this Agreement shall be true and correct on and as of the Closing Date or the Additional Closing Date (or such other date
specified in a representation or warranty), as the case may be.


 






    23


     


    

 


(b)            
No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement,
(i) no downgrading shall have occurred in the rating accorded any securities or preferred stock issued or guaranteed by the Company
or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined
under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance
or review, or has changed its outlook with respect to, its rating of any securities or preferred stock issued or guaranteed by
the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).


 


(c)            
No Material Adverse Change. No event or condition of a type described in Section ‎3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of Sale Information (excluding
any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or supplement thereto) and the effect
of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Securities on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated
by this Agreement, the Time of Sale Information and the Offering Memorandum.


 


(d)           
Officer’s Certificate. The Representative shall have received on and as of the Closing Date or the Additional
Closing Date, as the case may be, a certificate of the chief financial officer or chief accounting officer of the Company and one
additional senior executive officer of the Company who is reasonably satisfactory to the Representative (i) confirming that such
officers have carefully reviewed the Time of Sale Information and the Offering Memorandum and, to the knowledge of such officers,
the representations set forth in Sections ‎3(b) and ‎3(d)
hereof are true and correct as of such date, (ii) confirming that the other representations and warranties of the Company in this
Agreement are true and correct as of such date and that the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such Closing Date and (iii) to the effect set forth in paragraphs
‎(b) and ‎(c) above.


 


(e)           
Comfort Letters. (i) On the date of this Agreement and on the Closing Date or the Additional Closing Date, as the
case may be, Deloitte & Touche LLP shall have furnished to the Representative, at the request of the Company, letters, dated
the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory
to the Representative, containing statements and information of the type customarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated
by reference in the Time of Sale Information and the Offering Memorandum; provided, that the letter delivered on the Closing Date
or the Additional Closing Date, as the case may be shall use a “cut-off” date no more than three business days prior
to such Closing Date or such Additional Closing Date, as the case may be.


 






    24


     


    

 


(ii)           
 On the date of this Agreement and on the Closing Date or the Additional Closing Date, as the case may be, the Company shall
have furnished to the Representative a certificate, dated the respective dates of delivery thereof and addressed to the Initial
Purchasers, of its chief financial officer with respect to certain financial data contained in the Time of Sale Information and
the Offering Memorandum, providing “management comfort” with respect to such information, in form and substance reasonably
satisfactory to the Representative.


 


(f)            
Opinion and 10b-5 Statement of Counsel for the Company. Foley & Lardner LLP, counsel for the Company, shall have
furnished to the Representative, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date
or the Additional Closing Date, as the case may be, and addressed to the Initial Purchasers, in form and substance reasonably satisfactory
to the Representative.


 


(g)           
Opinion and 10b-5 Statement of Counsel for the Initial Purchasers. The Representative shall have received on and
as of the Closing Date or the Additional Closing Date, as the case may be, an opinion and 10b-5 statement of Davis Polk & Wardwell
LLP, counsel for the Initial Purchasers, with respect to such matters as the Representative may reasonably request, and such counsel
shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.


 


(h)           
No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the
Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Securities; and no injunction
or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Securities.


 


(i)             
Good Standing. The Representative shall have received on and as of the Closing Date or the Additional Closing Date,
as the case may be, satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good
standing as a foreign entity in such other jurisdictions as the Representative may reasonably request, in each case in writing
or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.


 


(j)             
DTC. The Securities shall be eligible for clearance and settlement through DTC.


 


(k)            
Exchange Listing. An application for the listing of the Underlying Securities shall have been submitted to the Exchange.


 


(l)              Lock-up
Agreements. The Lock-Up Agreements, each substantially in the form of Exhibit A hereto, between the Representative and
the officers and directors of the Company as described in Section ‎3(zz)
relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the
Representative on or before the date hereof, shall be full force and effect on the Closing Date or Additional Closing Date,
as the case may be.


 






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(m)            
Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as the case may be, the Company
shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request.


 


All opinions, letters, certificates and
evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers.


 


7.            
Indemnification and Contribution.


 


(a)            
Indemnification of the Initial Purchasers. The Company agrees to indemnify and hold harmless each Initial Purchaser,
its affiliates, directors and officers and each person, if any, who controls such Initial Purchaser within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable and documented out of pocket legal fees and other expenses incurred in connection with
defending or investigating any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained
in the Preliminary Offering Memorandum, any of the other Time of Sale Information, any Issuer Written Communication, any road show
as defined in Rule 433(h) under the Securities Act (a “road show”) or the Offering Memorandum (or any amendment or
supplement thereto) or any omission or alleged omission to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses,
claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating to any Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through the Representative expressly for use therein, it being understood and agreed that
the only such information furnished by any Initial Purchaser consists of the information described as such in subsection ‎(b)
below.


 


(b)            Indemnification
of the Company. Each Initial Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company, its
directors, its officers and each person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph ‎(a)
above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information
relating to such Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representative
expressly for use in the Preliminary Offering Memorandum, any of the other Time of Sale Information (including any of the
other Time of Sale Information that has subsequently been amended), any Issuer Written Communication, any road show or the
Offering Memorandum (or any amendment or supplement thereto), it being understood and agreed that the only such information
furnished by any Initial Purchaser consists of the following information in the section entitled “Plan of
Distribution” in the Offering Memorandum furnished on behalf of each Initial Purchaser: the information contained in
(x) the fourth and fifth sentences relating to market making in the third paragraph under the caption “New issue of
notes” and (y) the first paragraph under the caption “Price stabilization and short positions; repurchase of
common stock”.


 






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(c)             Notice
and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either
paragraph ‎(a) or ‎(b)
above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have under paragraph ‎(a)
or ‎(b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person
otherwise than under paragraph ‎(a) or ‎(b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person
(who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the
Indemnified Person and any others entitled to indemnification pursuant to this Section that the Indemnifying Person may
designate in such proceeding and shall pay the reasonable and documented out of pocket fees and expenses in such proceeding
and shall pay the reasonable and documented out of pocket fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable
time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded, based on the advice of counsel, that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed
that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such separate firm for any
Initial Purchaser, its affiliates, directors and officers and any control persons of such Initial Purchaser shall be
designated in writing by J.P. Morgan Securities LLC and any such separate firm for the Company, its directors, its officers
and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into in good faith more than 60 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the
written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which
any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.


 






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(d)           
Contribution. If the indemnification provided for in paragraphs ‎(a)
or ‎(b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein (other than as a result of the limitations on indemnification
imposed thereunder), then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Initial
Purchasers, on the other, from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but
also the relative fault of the Company, on the one hand, and the Initial Purchasers, on the other, in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Initial Purchasers, on the other, shall be deemed to be
in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the
Securities and the total discounts and commissions received by the Initial Purchasers in connection therewith, as provided in this
Agreement, bear to the aggregate offering price of the Securities. The relative fault of the Company, on the one hand, and the
Initial Purchasers, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Initial Purchasers and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.


 






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(e)           
 Limitation on Liability. The Company and the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section ‎7 were determined by pro rata allocation
(even if the Initial Purchasers were treated as one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities referred to in paragraph ‎(d)
above shall be deemed to include, subject to the limitations set forth above, any reasonable and documented out of pocket legal
or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions
of this Section ‎7, in no event shall an Initial Purchaser be required to contribute
any amount in excess of the amount by which the total discounts and commissions received by such Initial Purchaser with respect
to the offering of the Securities exceeds the amount of any damages that such Initial Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Initial Purchasers’ obligations to contribute pursuant to this Section ‎7
are several in proportion to their respective purchase obligations hereunder and not joint.


 


(f)            
Non-Exclusive Remedies. The remedies provided for in this Section ‎7
are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law
or in equity.


 


8.            
Effectiveness of Agreement. This Agreement shall become effective as of the date first written above.


 


9.            
Termination. This Agreement may be terminated in the absolute discretion of the Representative, by notice to the
Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date or, in the case of the Option
Securities, prior to the Additional Closing Date (i) trading generally shall have been suspended or materially limited on or by
any of the Exchange or The Nasdaq Global Market; (ii) trading of any securities issued or guaranteed by the Company shall have
been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall
have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities
or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment
of the Representative, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Securities on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum.


 






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10.           Defaulting
Initial Purchaser. (a) If, on the Closing Date or the Additional Closing Date, as the case may be, any Initial Purchaser
defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder on such date, the
non-defaulting Initial Purchasers may in their discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any
Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the purchase of such Securities, then the Company
shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting
Initial Purchasers to purchase such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Initial Purchaser, either the non-defaulting Initial Purchasers or the Company may postpone
the Closing Date or the Additional Closing Date, as the case may be, for up to five full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the Initial Purchasers may be necessary in the Time of
Sale Information, the Offering Memorandum or in any other document or arrangement, and the Company agrees to promptly prepare
any amendment or supplement to the Time of Sale Information or the Offering Memorandum that effects any such changes. As used
in this Agreement, the term “Initial Purchaser” includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section ‎10,
purchases Securities that a defaulting Initial Purchaser agreed but failed to purchase.


 


(b)           
If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Initial Purchaser or Initial
Purchasers by the non-defaulting Initial Purchasers and the Company as provided in paragraph ‎(a)
above, the aggregate number of Securities that remain unpurchased on the Closing Date or the Additional Closing Date, as the case
may be does not exceed one-eleventh of the aggregate number of Securities to be purchased on such date, then the Company shall
have the right to require each non-defaulting Initial Purchaser to purchase the number of Securities that such Initial Purchaser
agreed to purchase hereunder on such date plus such Initial Purchaser’s pro rata share (based on the number of Securities
that such Initial Purchaser agreed to purchase on such date) of the Securities of such defaulting Initial Purchaser or Initial
Purchasers for which such arrangements have not been made.


 


(c)            
If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Initial Purchaser or Initial
Purchasers by the non-defaulting Initial Purchasers and the Company as provided in paragraph ‎(a)
above, the aggregate number of Securities that remain unpurchased on the Closing Date or the Additional Closing Date, as the case
may be, exceeds one-eleventh of the aggregate principal amount of Securities to be purchased on such date, or if the Company shall
not exercise the right described in paragraph ‎(b) above, then this Agreement
or, with respect to any Additional Closing Date, the obligation of the Initial Purchasers to purchase Securities on the Additional
Closing Date, as the case may be, shall terminate without liability on the part of the non-defaulting Initial Purchasers. Any termination
of this Agreement pursuant to this Section ‎10 shall be without liability on
the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section
‎11 hereof and except that the provisions of Section ‎7
hereof shall not terminate and shall remain in effect.


 


(d)            
Nothing contained herein shall relieve a defaulting Initial Purchaser of any liability it may have to the Company or any
non-defaulting Initial Purchaser for damages caused by its default.


 






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11.           Payment of Expenses. (a) Whether or not the transactions contemplated by this Agreement are consummated or
this Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident to the performance of its
obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation and printing
of the Preliminary Offering Memorandum, any other Time of Sale Information, any Issuer Written Communication and the Offering
Memorandum (including any amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing
and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s counsel and independent
accountants; (v) the reasonable fees and expenses incurred in connection with the registration or qualification and determination
of eligibility for investment of the Securities under the state or foreign securities or blue sky laws of such jurisdictions as
the Representative may reasonably designate and the preparation, printing and distribution of a blue sky memorandum (including
the reasonable related fees and expenses of counsel for the Initial Purchasers); provided, however, that the amounts payable by
the Company for the fees and disbursements of counsel for the Initial Purchasers pursuant to this subsection (v) shall not exceed
$10,000 in the aggregate; (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses
of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses
and application fees incurred in connection with the approval of the Securities for book-entry transfer by DTC; (ix) all expenses
incurred by the Company in connection with any “road show” presentation to potential investors; and (x) all expenses
and application fees related to the listing of the Underlying Securities on the Exchange.


 


(b)    
         If (i) this Agreement is terminated pursuant to Section ‎9,
(ii) the Company for any reason fails to tender the Securities for delivery to the Initial Purchasers (other than by reason
of a default by any Initial Purchaser) or (iii) the Initial Purchasers decline to purchase the Securities for any reason
permitted under this Agreement, the Company agrees to reimburse the Initial Purchasers for all documented out-of-pocket costs
and expenses (including the fees and expenses of their counsel) reasonably incurred by the Initial Purchasers in connection
with this Agreement and the offering contemplated hereby.


 


12.          
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and any controlling persons referred to in Section ‎7
hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Initial Purchaser
shall be deemed to be a successor merely by reason of such purchase.


 


13.          
Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Company
and the Initial Purchasers contained in this Agreement or made by or on behalf of the Company or the Initial Purchasers pursuant
to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf
of the Company or the Initial Purchasers.


 






    31


     


    

 


14.          
Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate”
has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than
a day on which banks are permitted or required to be closed in New York City; (c) the term “subsidiary” has the meaning
set forth in Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth
in Article 1, Rule 1-02(w) of Regulation S-X under the Exchange Act.


 


15.           Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), the Initial Purchasers are required to obtain, verify and record information that identifies
their respective clients, including the Company, which information may include the name and address of their respective clients,
as well as other information that will allow the Initial Purchasers to properly identify their respective clients.


 


16.          
Miscellaneous. (a) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the
Initial Purchasers shall be given to the Representative c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York
10179 (fax: (212) 622-8358); Attention: Equity Syndicate Desk. Notices to the Company shall be given to it at The Marcus Corporation,
100 East Wisconsin Avenue, Suite 1900, Milwaukee, Wisconsin 53202; Attention: Thomas F. Kissinger.


 


(b)           
Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall
be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed
in such state.


 


(c)           
Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding
arising out of or relating to this Agreement.


 


(d)           
Recognition of the U.S. Special Resolution Regimes.


 


(i)            
In the event that any Initial Purchaser that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer from such Initial Purchaser of this Agreement, and any interest and obligation in or under this Agreement,
will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement,
and any such interest and obligation, were governed by the laws of the United States or a state of the United States.


 


(ii)            
In the event that any Initial Purchaser that is a Covered Entity or a BHC Act Affiliate of such Initial Purchaser becomes
subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against
such Initial Purchaser are permitted to be exercised to no greater extent than such Default Rights could be exercised under the
U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.


 






    32


     


    

 


As used in this Section ‎16(g):


 


“BHC Act Affiliate” has the meaning assigned
to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).


 


“Covered Entity” means any of the following:


 


(i) a “covered entity” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);


 


(ii) a “covered bank” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or


 


(iii) a “covered FSI” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).


 


“Default Right” has the meaning assigned
to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.


 


“U.S. Special Resolution Regime” means each
of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street
Reform and Consumer Protection Act and the regulations promulgated thereunder.


 


(e)            
Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard
form of telecommunication, including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic
Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com), each of which shall
be an original and all of which together shall constitute one and the same instrument.


 


(f)            
Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to
any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.


 


(g)           
Headings. The headings herein are included for convenience of reference only and are not intended to be part of,
or to affect the meaning or interpretation of, this Agreement.


 


(h)           
Xtract Research LLC. The Company hereby agrees that the Initial Purchasers may provide copies of the Preliminary
Offering Memorandum and the Final Offering Memorandum relating to the offering of the Securities and any other agreements or documents
relating thereto, including, without limitation, trust indentures, to Xtract Research LLC (“Xtract”) following the
completion of the offering for inclusion in an online research service sponsored by Xtract, access to which is restricted to “qualified
institutional buyers” as defined in Rule 144A under the Securities Act.


 


[Signature page follows]


 






    33


     


    

 


If the foregoing is in accordance with your
understanding, please indicate your acceptance of this Agreement by signing in the space provided below.


 


	 	Very truly yours,
	 	 
	 	THE MARCUS CORPORATION
	 	 
	 	By:	/s/ Douglas A. Neis




	 	Name: Douglas A. Neis
	 	Title: Chief Financial Officer




 


Accepted: As of the date first written above


 


J.P. MORGAN SECURITIES LLC


 


For itself and on behalf of the


		several	Initial Purchasers listed



in Schedule 1 hereto.


 


	By:	/s/ Santosh Sreenivasan	 




Authorized Signatory


 


[Signature Page
to Purchase Agreement]


 



     


     


    




 


Schedule 1


 


	Initial Purchaser	 	Principal Amount	 
	J.P. Morgan Securities LLC	 	$	56,497,000	 
	BofA Securities, Inc.	 	 	8,415,000	 
	U.S. Bancorp Investments, Inc.	 	 	12,622,000	 
	BMO Capital Markets Corp.	 	 	3,155,000	 
	Fifth Third Securities, Inc.	 	 	3,155,000	 
	B. Riley Securities, Inc.	 	 	1,052,000	 
	Barrington Research Associates, Inc.	 	 	1,052,000	 
	The Benchmark Company, LLC	 	 	1,052,000	 
	Total	 	$	87,000,000	 



 



     


     


    




Annex A


 


a. Time of Sale Information


 


Term sheet containing the terms of the Securities,
substantially in the form of Annex B.


 






     


     


    

 


Annex B


 


The Marcus Corporation


 


Pricing Term Sheet


 



     


     


    




Exhibit A


 


FORM OF LOCK-UP AGREEMENT