LLOYDS TSB GROUP PLC (a public limited company incorporated under the laws of Scotland and registered in Scotland) UNDERWRITING AGREEMENT DATED: [ ]
Exhibit
1.1
(a
public
limited company incorporated under the laws of
Scotland
and registered in Scotland)
DATED:
[ ]
TABLE
OF CONTENTS
Page
| SECTION 1. |
Representations
and Warranties By The Company
|
4
|
|
| SECTION 2. |
Purchase
Of The Securities By The Underwriters
|
8
|
|
| SECTION 3. |
Delivery
And Payment For Securities
|
8
|
|
| SECTION 4. |
Covenants
Of The Company
|
9
|
|
| SECTION 5. |
Fees
And Expenses
|
12
|
|
| SECTION 6. |
Conditions
Of Underwriters’ Obligations
|
14
|
|
| SECTION 7. |
Indemnification
And Contribution
|
16
|
|
| SECTION 8. |
Substitution
Of Underwriters
|
20
|
|
| SECTION 9. |
Effectiveness
|
21
|
|
| SECTION 10. |
Termination
|
21
|
|
| SECTION 11. |
Representation
and Notices
|
22
|
|
| SECTION 12. |
Parties
|
22
|
|
| SECTION 13. |
Submission
To Jurisdiction
|
23
|
|
| SECTION 14. |
Waiver
of Jury Trial.
|
24
|
|
| SECTION 15. |
Representations
By The Underwriters
|
24
|
|
| SECTION 16. |
Nature
Of Relationship
|
26
|
|
| SECTION 17. |
Time
|
26
|
|
| SECTION 18. |
Governing
Law
|
26
|
|
| SECTION 19. |
Counterparts
|
26
|
|
| SECTION 20. |
Effect
Of Headings
|
26
|
|
|
Annex
1
|
Form
of Pricing Agreement
|
||
|
Schedule
I
|
Names
of Underwriters and Number of Securities to be Purchased
|
||
|
Schedule
II
|
Summary
of Certain Terms of the Securities
|
||
|
Annex
II
|
Free
Writing Prospectuses
|
||
|
Annex
III
|
Form
of Final Term Sheet
|
||
|
Annex
IV
|
Form
of Opinion of U.S. Counsel to the Company
|
||
|
Annex
V
|
Form
of Opinion of Scottish Counsel to the Company
|
||
|
Annex
VI
|
Form
of Opinion of English Counsel to the Company
|
||
|
Annex
VII
|
Form
of Opinion of Counsel to the ADR Depositary
|
||
|
Annex
VIII
|
Form
of Opinion of Counsel to the Underwriters
|
||
i
_____________________________
[Number
of shares] American Depositary Shares, Series [·]
Representing
[Number
of shares] Non-Cumulative Dollar Preference Shares, Series [·] (Nominal
Value
$0.25 each)
_____________________________
[ ]
[Name
of Representative]
[Address
of Representative]
As
Representative of the several Underwriters
named
in
Schedule I to the Pricing Agreement
Ladies
and
Gentlemen:
From
time
to time Lloyds TSB Group plc, a public limited company incorporated under the
laws of Scotland and registered in Scotland (the “Company”),
proposes to enter into one or more Pricing Agreements (each a “Pricing
Agreement”) in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the several firms
named in Schedule I to the applicable Pricing Agreement (such firms constituting
the “Underwriters” with respect to such Pricing Agreement and
the securities specified therein) an aggregate number of American depositary
shares representing non-cumulative preference shares as specified in Schedule
II
to the Pricing Agreement. It is contemplated hereby that a Pricing Agreement
will be entered into on the date hereof with respect to [Number of
shares] authorized but unissued Non-cumulative Dollar Preference Shares,
Series [·] in
the capital of the Company, having a nominal value of $0.25 each (the
“Preference Shares”), to be represented by [Number of
shares] American Depositary Shares, Series [·] (the
“ADSs”). As used herein, the
“Securities” means the ADSs together with the Preference
Shares. In accordance with the Nominee Agreement dated [·], 2007 between
the
Company and [Nominee] (as amended and/or supplemented from time to
time), the Preference Shares are to be issued to [Nominee] in fully
registered form, and then subsequently in the form of share warrants to
bearer. [Nominee] will deposit the Preference Shares with
[Depositary], as depositary (the “ADR Depositary”), in
bearer form, on behalf of the Company pursuant to a deposit agreement dated
as
of [·], 2007
(the “ADR Deposit Agreement”) among
the
Company, the ADR Depositary and the holders from time to time of the American
Depositary Receipts to be issued thereunder representing the Preference Shares.
The American Depositary Receipts evidencing the ADSs are herein referred to
as
the “ADRs.”
The
terms
of, and rights attached to, any particular issuance of Securities shall be
as
specified in the Pricing Agreement relating thereto. The offering of the
Securities will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the Pricing
Agreement, this Agreement shall be deemed to incorporate the Pricing
Agreement.
Particular
sales of Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives of the Underwriters
of such Securities in the Pricing Agreement relating thereto will act as
representatives (the “Representatives”). The term
“Representatives” also refers to a single firm acting as sole representative
of
the Underwriters and to an Underwriter or Underwriters who act without any
firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of
the
Securities shall be evidenced by the Pricing Agreement with respect to the
Securities specified therein. Each Pricing Agreement shall specify the aggregate
number of shares of such Securities, the initial public offering price of such
Securities, the purchase price to the Underwriters of such Securities, the
names
of the Underwriters of such Securities, the names of the Representatives of
such
Underwriters and the number of shares of such Securities to be purchased by
each
Underwriter and shall set forth the date, time and manner of delivery of such
Securities and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in the Registration Statement (as defined below),
the
Disclosure Package (as defined below) and prospectus with respect thereto)
the
terms of such Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of facsimile communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
For
purposes of this Agreement, the following terms have the specified
meanings:
2
“Applicable
Time” means _________ [a.m.][p.m.] (New York City time) on the date of
this Agreement;
“Base
Prospectus” means the base prospectus filed as part of the Registration
Statement, in the form in which it has most recently been amended on or prior
to
the date hereof, relating to the Securities;
“Disclosure
Package” means, as of the Applicable Time, the most recent Preliminary
Prospectus, together with the Free Writing Prospectus listed on Annex II
hereto;
“Effective
Date” means any date as of which any part of the Registration Statement
or any post-effective amendment thereto relating to the Securities became,
or is
deemed to have become, effective under the Securities Act in accordance with
the
Rules and Regulations (as defined below) (including pursuant to Rule 430B of
the
Rules and Regulations);
“Final
Term Sheet” means a term sheet prepared pursuant to Section 4(d) of this Agreement and substantially
in
the form attached to this Agreement in Annex III hereto;
“Free
Writing Prospectus” has the meaning set forth in Rule 405 under the
Securities Act of 1933, as amended (the “Securities
Act”);
“Issuer
Free Writing Prospectus” has the meaning set forth in Rule 433 under
the Securities Act;
“Preliminary
Prospectus” means any preliminary prospectus relating to the
Securities, including the Base Prospectus and any preliminary prospectus
supplement thereto, included in the Registration Statement or as filed with
the
Commission pursuant to Rule 424(b) of the Rules and Regulations and provided
to
the Representative for use by the Underwriters;
“Prospectus”
means the final prospectus relating to the Securities, including the Base
Prospectus and the final prospectus supplement thereto relating to the
Securities, as filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations and provided to the Representative for use by the Underwriters;
and
“Registration
Statement” means, collectively, the various parts of the
above-referenced registration statement, each as amended as of the Effective
Date for such part, including any Preliminary Prospectus or the Prospectus
and
all exhibits to such registration statement.
3
Any
reference to the “most recent Preliminary Prospectus” will be
deemed to refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) of the Rules and
Regulations prior to or on the date hereof (including, for purposes of this
Agreement, any documents incorporated by reference therein prior to or on the
date of this Agreement). Any reference to any Preliminary Prospectus
or the Prospectus will be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 6 of Form F-3 under the
Securities Act as of the date of such Preliminary Prospectus or the Prospectus,
as the case may be. Any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus will be deemed to refer to and
include any document filed under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by reference
in such Preliminary Prospectus or the Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement will be deemed to
include any annual report of the Company on Form 20-F filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective
Date
that is, and any Reports on Form 6-K furnished to the Commission after the
Effective Date that are stated to be, incorporated by reference in the
Registration Statement.
SECTION
1. Representations and Warranties By The
Company. The Company represents and warrants to, and agrees
with, each of the Underwriters that:
(a) An
“automatic shelf registration statement” (as defined in Rule 405 under the
Securities Act) on Form F-3 in respect of the Securities (File No. 333-____)
(i)
has been prepared by the Company in conformity with the requirements of the
Securities Act, and the rules and regulations (the “Rules and
Regulations”) of the Securities and Exchange Commission (the
“Commission”) thereunder, (ii) has been filed with the
Commission under the Securities Act not earlier than the date that is three
years prior to the Closing Date (as defined in Section
3 hereof) and (iii) upon its filing with the Commission, automatically
became and is effective under the Securities Act.
(b) The
Commission has not issued any order preventing or suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus, Disclosure Package or the Prospectus; and no proceeding
for any such purpose or pursuant to Section 8A of the Securities Act against
the
Company or related to the offering has been, to the Company’s knowledge,
instituted or threatened by the Commission. The Commission has not
issued any order directed to any document incorporated by reference in the
most
recent Preliminary Prospectus or the Prospectus, and, to the Company’s
knowledge, no proceeding has been instituted or threatened by the
Commission
4
with
respect to any document incorporated by reference in the most recent Preliminary
Prospectus or the Prospectus. The Commission has not notified the
Company of any objection to the use of the form of the Registration
Statement.
(c) The
Company has been, and continues to be, a “well-known seasoned issuer” (as
defined in Rule 405 of the Rules and Regulations) and has not been, and
continues not to be, an “ineligible issuer” (as defined in Rule 405 of the Rules
and Regulations), in each case at all times relevant under the Securities Act
in
connection with the offering of the Securities.
(d) The
Registration Statement conformed on the Effective Date and conforms, and any
amendment to the Registration Statement filed after the date hereof will
conform, in all material respects to the requirements of the Securities Act
and
the Rules and Regulations. The most recent Preliminary Prospectus
conforms, and the Prospectus, and any amendment or supplement thereto, will
conform, in all material respects to the requirements of the Securities Act
and
the Rules and Regulations. The documents incorporated by reference in
the most recent Preliminary Prospectus or the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed
in
all material respects, to the requirements of the Securities Act or the Exchange
Act, as applicable, and the Rules and Regulations, and any further documents
so
filed and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform, in all material respects to
the requirements of the Securities Act or the Exchange Act, as applicable,
and
the Rules and Regulations.
(e) The
Registration Statement did not, as of the Effective Date, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that no representation or warranty is made as to
information contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the Company through
the Representative by or on behalf of any Underwriter specifically for inclusion
therein.
(f) The
Disclosure Package did not, as of the Applicable Time, 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, however, that no
representation or warranty is made as to information contained in or omitted
from the Disclosure Package in reliance upon and in conformity with written
information furnished to the
Company through the Representative by or on behalf of any Underwriter
specifically for inclusion therein.
5
(g) The
Prospectus, and any amendment or supplement thereto, will not, as of its date
and on the Closing Date, 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, however, that no representation or warranty is made as to
information contained in or omitted from the Prospectus in reliance upon and
in
conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for inclusion
therein; provided, further, that the representations and warranties in
this subsection shall not apply to that part of the Registration Statement
that
constitutes the Statement of Eligibility (the “Form T-1”) under
the U.S. Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”), of the trustee (the “Trustee”).
(h) A
registration statement on Form F-6 (File No. [333-[·]) in respect
of the
ADSs has been filed with the Commission; such registration statement, excluding
exhibits, has been declared effective by the Commission; no other document
with
respect to such registration statement has heretofore been filed with the
Commission; no stop order suspending the effectiveness of such registration
statement has been issued and, to the Company’s knowledge, no proceeding for
that purpose has been initiated or threatened by the Commission (the various
parts of such registration statement, including all exhibits thereto, each
as
amended at the time such part of the registration statement became effective,
being hereinafter called the “ADR Registration Statement” and
the prospectus included therein being hereinafter called the “ADR
Prospectus”); and at the time the ADR Registration Statement became
effective the ADR Registration Statement and the ADR Prospectus conformed,
and
any further amendments thereto will conform, in all material respects to the
requirements of the Rules and Regulations, and the ADR Registration Statement
did not, as of the applicable effective date, contain any untrue statement
of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading.
(i) The
audited consolidated financial statements (in conjunction with the notes
thereto) of the Company included in the Registration Statement present fairly,
in all material respects, the financial position of the Company and its
subsidiary undertakings for the periods specified. The audited
consolidated annual financial statements for the financial years ended December
31, 2006, December 31, 2005 and December 31, 2004, and the results of their
operations and cash flows for each of the three years ended December 31, 2006,
December 31,
2005
and December 31, 2004 were prepared in accordance with International Financial
Reporting Standards as adopted by the European Union.
6
(j) Since
the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Prospectus, except as otherwise set
forth or contemplated therein, there has been no material adverse change in
the
condition, financial or otherwise, or in the results of operations of the
Company and its subsidiaries considered as one enterprise.
(k) The
Company (A) has been duly incorporated in Scotland and is validly registered
under the laws of Scotland; (B) has the requisite corporate power and authority
to execute and deliver this Agreement and the Pricing Agreement and had the
requisite corporate power and authority to execute and deliver the ADR Deposit
Agreement and, in each case, to perform its obligations hereunder and
thereunder; (C) has the corporate power and authority to conduct its business
through its subsidiaries as described in the Disclosure Package and the
Prospectus; and (D) has duly authorized, executed and delivered this Agreement
and the Pricing Agreement and this Agreement and the Pricing Agreement
constitute the valid and legally binding agreement of the Company enforceable
in
accordance with its terms, except as rights to indemnity or contribution may
be
limited by applicable law and subject as to enforcement to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to
or affecting creditors’ rights generally and to general equity
principles.
(l) The
ADR Deposit Agreement has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the ADR
Depositary, constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors’ rights generally and to general equity
principles.
(m) The
Preference Shares are to be represented by the ADSs and, when allotted, issued
and paid for in accordance with this Agreement and the Pricing Agreement, the
Preference Shares (a) will be validly issued in accordance with the requirements
of the Companies Xxx 0000 of Great Britain and will be fully paid and not
subject to further call or contribution and (b) no holder thereof will be
subject to any personal liability to the Company or to creditors of the Company
solely by reason of being such a holder.
(n) The
Preference Shares and the corresponding ADRs will conform in all material
respects to the descriptions thereof contained in the Disclosure Package and
the
Prospectus.
(o) All
consents, approvals, authorizations, orders and decrees of any court or
governmental agency or body of the United States or the United Kingdom having
jurisdiction over the Company required for the consummation
7
by
the
Company of the transactions contemplated by this Agreement or the Pricing
Agreement or to permit the Company to effect dividend payments in United States
dollars on the Securities have been obtained and are in full force and effect,
except as may be required by United States state securities laws (the
“Blue Sky laws”).
(p) The
execution, delivery and performance of this Agreement and the Pricing Agreement,
the allotment, issuance, authentication, sale and delivery of the Securities
and
the compliance by the Company with the respective terms thereof, and the
consummation of the transactions contemplated hereby and thereby, will not
conflict with or result in a breach under any agreement or instrument to which
the Company is a party or by which the Company is bound that is material to
the
Company and its subsidiaries, taken as a whole, nor will such action result
in
any violation of (1) the provisions of the Memorandum and Articles of
Association of the Company or (2) any statute or any order, filing, rule or
regulation of any United States, English or Scottish court or governmental
agency or regulatory body having jurisdiction over the Company except for any
such violation in (2) above that would not, individually or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, or
on
the results of operations or the business of the Company and its subsidiaries
considered as one enterprise.
(q) The
Company is not, and after giving effect to the offer and sales of the Securities
and application of the proceeds thereof as described in the Prospectus, will
not
be, required to register as an “investment company,” as defined in the
Investment Company Act of 1940, as amended (the “Investment Company
Act”).
(r) There
is no action, suit, proceeding, inquiry or investigation before or brought
by
any court or governmental agency or body, domestic or foreign, now pending,
or,
to the knowledge of the Company, threatened against or affecting the Company
or
any subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein).
SECTION
2. Purchase Of The Securities By The
Underwriters. Upon the execution of the Pricing Agreement
applicable to any Securities and authorization by the Representatives of the
release of such Securities, the several Underwriters propose to offer such
Securities for sale upon the terms and conditions set forth in the Prospectus
(as amended or supplemented).
SECTION
3. Delivery And Payment For Securities. The
Securities to be purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in the form specified in such Pricing Agreement, and
registered in such names as the Representatives may request upon at least
forty-eight hours’ prior
8
notice
to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriters (which may include any
direction by the Underwriters to deposit the Preference Shares in global form
with the ADR Depositary), against payment by the Underwriters, or by the
Representatives on behalf of the Underwriters, of the purchase price therefor
by
wire transfer of immediately available funds to an account designated by the
Company as specified in the Pricing Agreement, all in the manner and at the
place and time and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives and the Company may agree upon
in
writing, such time and date being herein called the “Closing
Date” for such Securities.
SECTION
4. Covenants Of The Company. The Company agrees
with each of the Underwriters of any Securities:
(a) The
Company will notify the Representatives promptly on becoming aware of (i) any
request by the Commission for any amendment to the Registration Statement or
the
ADR Registration Statement or any amendment or supplement to the Prospectus
or
ADR Prospectus or for additional information relating to the Registration
Statement, the ADR Registration Statement or the offering of the Securities,
and
(ii) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the ADR Registration Statement,
suspending or preventing the use of any Preliminary Prospectus, Disclosure
Package, the Prospectus, or the ADR Prospectus or the initiation of any
proceedings for such purpose or of any notice of objection to the use of the
Registration Statement or any post effective amendment thereto or any request
by
the Commission for the amending or supplementing of the Registration Statement,
ADR Registration Statement, the Prospectus, ADR Prospectus or any Free Writing
Prospectus. The Company will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order or notice of objection
is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b) If
at any time prior to the expiration of nine months after the Applicable Time,
any event occurs as a result of which the Disclosure Package would then 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, the Company will
(i)
promptly notify the Representatives so that any use of the Disclosure Package
may cease until it is amended or supplemented; (ii) amend or supplement the
Disclosure Package to correct such statement or omission; and (iii) supply
any
such
amendment or supplement to the Underwriters in such quantities as they may
reasonably request.
(c) The
Company will, for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities (including in
9
circumstances
where such requirement may be satisfied pursuant to Rule 172 or Rule 173(a)
of
the Rule and Regulations), file promptly all reports required to be filed by
the
Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act and will give the Representatives notice of its intention to file
any amendment to the Registration Statement or any amendment to the ADR
Registration Statement or any amendment or supplement to the Disclosure Package,
the Prospectus or ADR Prospectus (including any prospectus which the Company
proposes for use by the Underwriters in connection with the offering of the
Securities which differs from the Prospectus, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the Rules and
Regulations) and, if and to the extent reasonably practicable, will furnish
the
Representatives with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file any such amendment or supplement or use any such prospectus
without prior consultation with the Representatives, if such prior consultation
is reasonably practicable.
(d) The
Company will prepare Final Term Sheets, containing solely a description of
the
final terms of the Securities and the offering thereof, in a form approved
by
the Representatives and will file each Final Term Sheet not later than the
time
required by Rule 433(d) of the Rules and Regulations.
(e) The
Company will prepare the Prospectus in relation to the Securities and file
such
Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than
the time required by Rule 424(b) of the Rule and Regulations following the
execution and delivery of the Pricing Agreement relating to the
Securities.
(f) If
required by Rule 430B(h) of the Rules and Regulations, the Company will prepare
a prospectus and file such prospectus pursuant to Rule 424(b) of the Rules
and
Regulations not later than may be required by such Rule.
(g) The
Company will deliver to each Representative a conformed copy of the Registration
Statement and the ADR Registration Statement, in each case, as originally filed,
and of each amendment thereto (including exhibits and documents filed therewith
or incorporated by reference, as the case may be, into the Registration
Statement).
(h) The
Company will furnish the Underwriters with copies of the Preliminary Prospectus,
the Prospectus and each Free Writing Prospectus(including,
in each case, any supplement thereto) in such quantities as the Representatives
may from time to time reasonably request, and will use all reasonable efforts
to
make the initial delivery of the Prospectus by no later than 9:00 a.m. on the
second business day prior to the Closing Date and, if the delivery
10
of
a
Prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering and sale
of
the Securities and if at such time any event shall have occurred as a result
of
which the Prospectus as then amended or supplemented would include an 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 when such Prospectus is delivered, not misleading, or,
if
for any reason it shall be necessary during such period to amend or supplement
the Prospectus in order to comply with the Securities Act, notify the
Underwriters and upon the Representatives’ request prepare and furnish without
charge to each Underwriter as many copies as the Representatives may from time
to time reasonably request of an amended Prospectus or supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a Prospectus
in
connection with sales of the Securities (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 or 173(a) of the Rule and
Regulations) at any time nine months or more after the time of issue of the
Prospectus, upon the Representatives’ request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as the
Representatives may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Securities Act.
(i) The
Company agrees that, unless it has obtained or will obtain (as the case may
be)
the prior written consent of the Representatives, and each Underwriter,
severally and not jointly, agrees with the Company that, unless it has obtained
or will obtain (as the case may be) the prior written consent of the Company,
it
has not made and will not make any offer relating to the Securities that would
constitute a Free Writing Prospectus required to be filed by the Company with
the Commission or retained by the Company under Rule 433 of the Rules and
Regulations, other than the information contained in the Final Term Sheets;
provided, however, that the prior written consent of the parties hereto
shall be deemed to have been given in respect of the Free Writing Prospectuses
included in Annex II hereto. Any such free writing prospectus consented to
by
the parties is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (i) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (ii) it has complied and will comply, as the case may
be,
with the requirements of Rules 164 and 433 of the Rules and Regulations
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
(j) The
Company will endeavour, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Representatives
11
may
designate; provided, however, that the Company shall not be obligated
to qualify as a foreign corporation in any jurisdiction in which it is not
so
qualified. In each jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be required by the
laws
of such jurisdiction to continue such qualifications in effect for as long
as
necessary to complete the distribution of the Securities but in no event for
a
period longer than one year from the date of this Agreement.
(k) The
Company will make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement, an earnings statement (which need not be
audited) complying with Section 11(a) of the Securities Act and the rules and
regulations thereunder (including, at the option of the Company, Rule 158 of
the
Rules and Regulations).
(l) During
the period beginning from the date of the Pricing Agreement for such Securities
and continuing to and including the Closing Date, the Company will not offer,
sell, contract to sell or otherwise dispose of, pursuant to a public offering
in
the United States, any securities of the Company which are substantially similar
to such Securities, without the prior written consent of the Representatives,
which consent shall not be unreasonably withheld.
(m) The
Company will cooperate with the Underwriters and use its best efforts to permit
the ADRs to be eligible for clearance and settlement through the facilities
of
The Depository Trust Company (“DTC”).
(n) Prior
to the issuance of the Securities, the Company will have obtained all consents,
approvals, authorizations, orders, registrations, qualifications and decrees
of
any court or governmental agency or body of the United States and the United
Kingdom necessary or required for the valid issuance of the Securities and
to
permit the Company to make dividend payments on the Securities in U.S.
dollars.
SECTION
5. Fees And Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
any Pricing Agreement and the Securities, including (i) the printing and filing
of the Registration Statement as originally filed and of each amendment thereto,
the ADR Registration Statement, any Free Writing Prospectus, the Prospectus
and
any Preliminary Prospectus (or any amendments or supplements thereto), and
the
cost of furnishing copies thereof to the Underwriters; (ii) the printing, if
any, of this Agreement, the Pricing Agreement, the ADR Deposit Agreement, the
ADRs and
the
Blue Sky Survey; (iii) the printing or reproduction, preparation, issuance
and
delivery of the certificates, if any, for the Securities or the ADRs to (or
at
the direction of) the Underwriters or the ADR Depositary, including any stock
transfer or other
12
taxes
or
duties payable upon the delivery of the Preference Shares to the ADR Depositary
or the sale of such Securities or the ADRs to the Underwriters; (iv) the fees
and disbursements of the Company’s counsel and accountants; (v) the
qualification of the Securities under the applicable securities laws in
accordance with the provisions of Section 4(j) hereof, including filing fees
and
the fees and disbursements of counsel for the Underwriters in connection
therewith in an aggregate amount not in excess of $[•] with respect to a
particular issue of the Securities and in connection with the preparation of
any
Blue Sky Survey and any Legal Investment Survey; (vi) the delivery to the
Underwriters of copies of the Blue Sky Survey, if any; (vii) any costs, fees
and
charges of the ADR Depositary in connection with the issuance and delivery
of
Preference Shares to the ADR Depositary and ADSs to the registered holders
thereof and all other costs, fees and charges of the ADR Depositary and any
transfer agent or registrar; (viii) all expenses and listing fees in connection
with the listing of the Securities, if any, and the clearance and settlement
of
the Securities through the facilities of DTC; (ix) any fees charged by
securities rating services for rating the Securities; (x) the fees and expenses
incurred in connection with the filing of any materials with the National
Association of Securities Dealers, Inc., if any; (xi) any fees associated with
a
Bloomberg roadshow presentation and; (xii) any United Kingdom stamp duty, stamp
duty reserve tax or similar tax or duty imposed by the United Kingdom or any
political subdivision thereof upon the original issuance by, or on behalf of,
the Company of the Securities or the ADRs, the initial delivery of the
Securities or the ADRs to the initial subscribers, the deposit of the Preference
Shares under the ADR Deposit Agreement by the Company, the subscription by
the
Underwriters for the Securities or the ADRs, the sale and delivery of the ADRs
by the Underwriters to the initial purchasers thereof and the execution and
delivery of this Agreement, the Pricing Agreement and the ADR Deposit
Agreement.
Whenever
the Company is obliged to pay any fee, commission or other sum to the
Underwriters (or any one of them) under this Agreement and any UK value added
tax (“VAT”) is properly charged on it, the Company shall also (in addition to
the fee, commission or other sum) pay to the Underwriters (or any one of them)
an amount equal to the VAT charged on receipt of a valid VAT
invoice.
Whenever
the Company is obliged to pay a sum to the Underwriters (or any one of them)
under this Agreement in respect of any fee, cost, charge or expense (a
“Relevant Cost”) which does not fall within the preceding
paragraph, the Company shall also pay to the Underwriters (or any one of
them):
(i) if
for VAT purposes the Relevant Cost is consideration for a supply of goods or
services made to the Underwriters (or any one of them), an
amount equal to any input VAT incurred by the Underwriters (or any one of
them)
13
on
that
supply which the Underwriters (or any one of them) consider they are (or
considers it is) unable to recover from HM Revenue & Customs (whether by
repayment or credit); and
(ii) if
for VAT purposes the Relevant Cost is a disbursement incurred by the
Underwriters (or any one of them) as agent on behalf of the Company, an
amount equal to any VAT paid on the Relevant Cost by the Underwriters (or
any one of them), and the Underwriters (or any one of them) shall use reasonable
endeavours to procure that the relevant third party issues a valid VAT invoice
in respect of the Relevant Cost to the Company.
If
this
Agreement is terminated by the Representatives in accordance with the provisions
of Section 6 or Section
10(a)(i) hereof, the Company shall reimburse the Underwriters for their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters, except that in the case of a termination in
accordance with Section 10(a)(i) hereof, such
reimbursement shall include only any expenses actually incurred (not to exceed
$[•]).
[Lloyds
to confirm that the above Section reflects the agreement on fees (and amounts)
reached with Representative].
SECTION
6. Conditions Of Underwriters’ Obligations. The
obligations of the Underwriters of any Securities under the Pricing Agreement
relating to such Securities shall be subject, in the reasonable discretion
of
the Representatives, to the condition that all representations and warranties
of
the Company in or incorporated by reference in the Pricing Agreement relating
to
such Securities are, at and as of the Closing Date for such Securities, true
and
correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The
Registration Statement is effective and at the Closing Date no stop order
suspending the effectiveness of the Registration Statement or any amendment
or
supplement thereto, suspending or preventing the use of any Preliminary
Prospectus, any Free Writing Prospectus or the Prospectus shall have been issued
under the Securities Act or proceedings therefor to the Company’s knowledge,
initiated or threatened by the Commission.
(b) The
Prospectus shall have been transmitted to the Commission for filing pursuant
to
Rule 424(b) of the Rules and Regulations within the time period prescribed
by
Rule 424(b) of the Rules and Regulations; filed with the Commission in a timely
fashion in accordance with Section 4(e) hereof; the
Final Term Sheets and any other material required to be filed by the Company
pursuant to
Rule
433(d) of the Rules and Regulations shall have been transmitted to the
Commission for filing pursuant to Rule 433(d) of the Rule and Regulations;
and,
14
in
each
case, prior to the Closing Date the Company shall have provided evidence
satisfactory to the Representatives of such timely filing.
(c) At
the Closing Date, the Representatives shall have received:
(i) The
opinion, dated as of the Closing Date, of Xxxxx Xxxx & Xxxxxxxx, United
States counsel for the Company, with respect to the matters set forth in Annex
IV hereto, subject to modifications to which the Underwriters do not reasonably
object.
(ii) The
opinion, dated as of the Closing Date, of Dundas & Xxxxxx XX LLP, Scottish
solicitors to the Company, with respect to the matters set forth in Annex V
hereto, subject to modifications to which the Underwriters do not reasonably
object.
(iii) The
opinion, dated as of the Closing Date, of Linklaters LLP, English solicitors
to
the Company, with respect to the matters set forth in Annex VI hereto, subject
to modifications to which the Underwriters do not reasonably
object.
(iv) The
opinion, dated as of the Closing Date, of Xxxxx, Xxxxxx & Xxxxxx LLP,
counsel to the ADR Depositary with respect to the matters set forth in Annex
VII
hereto, subject to modifications to which the Underwriters do not reasonably
object.
(v) The
opinion, dated as of the Closing Date, of Xxxxx & Overy LLP, of counsel for
the Underwriters, with respect to the matters set forth in Annex
VIII.
(d) The
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement, the Disclosure Package and the
Prospectus (the “Independent Accountants”) shall have furnished
to the Representatives a letter, dated at date hereof with regard to matters
customarily covered by accountants’ “comfort letters” in connection with
registered public offerings and otherwise in form and substance satisfactory
to
the Representatives.
(e) The
Independent Accountants shall have furnished to the Representatives a letter,
dated at the Closing Date, to the effect that it reaffirms the statements made
in the letter furnished pursuant to Section 6(d),
except that the specified date referred to shall be a date not more than three
business days prior to the Closing Date.
(f) If
required pursuant to the Pricing Agreement, any such Securities shall have
been
duly authorized for listing by the New York Stock Exchange, Inc.
15
(g) At
the Closing Date (1) there shall not have been, since the date of the Pricing
Agreement or since the respective dates as of which information is given in
the
Registration Statement, the Disclosure Package and the Prospectus, except as
otherwise set forth or contemplated therein, any material adverse change in
the
condition, financial or otherwise, or in the results of operations of the
Company and its subsidiaries considered as one enterprise, and (2) the
Representatives shall have received a certificate of the Company executed on
its
behalf by an officer of the Company, dated as of the Closing Date, to the effect
that (i) the representations and warranties in Section 1 hereof are true and
correct in all material respects as though expressly made at and as of the
Closing Date; (ii) the Company has complied in all material respects with all
agreements hereunder and satisfied in all material respects all conditions
on
its part to be performed or satisfied hereunder at or prior to the Closing
Date;
and (iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of the Company, no proceedings
for that purpose have been initiated or threatened by the
Commission.
(h) The
Company shall have furnished to the Underwriters a certificate, dated the
Closing Date, of a duly authorized signatory of the Company stating that to
the
best knowledge and belief of the duly authorized signatory signing such
certificate after reasonable inquiry, the issue and sale of the Securities
in
the manner contemplated in the Disclosure Package and Prospectus do not and
will
not result in a breach, default or acceleration of any payment or amount under
any contract, agreement or undertaking to which the Company or any of its
subsidiaries is a party (or by which any such entity is bound), which breach,
default or acceleration would have a material adverse effect on the Company
and
its subsidiaries taken as a whole.
(i) If
an affiliate (as defined in applicable National Association of Securities
Dealers (“NASD”) rules) of the Company is participating in the
offering of the Securities, the NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
If
any
condition specified in this Section 6 shall not have been fulfilled when and
as
required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section 5 hereof. Notwithstanding any such
termination, the provisions of Sections 5, 7, 9 and 14 herein shall remain
in
effect.
SECTION
7. Indemnification And
Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, each of the Underwriters’ affiliates engaged in
the distribution of the Securities, directors,
16
officers
and employees, and each person, if any, who controls any Underwriter within
the
meaning of Section 15 of the Securities Act as follows:
(i) against
any and all loss, liability, damage and expense whatsoever, as incurred, arising
out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including
the information deemed to be part of the Registration Statement pursuant to
Rule
430A(b) of the Securities Act Regulations, if applicable, the ADR Registration
Statement or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue statement
of
a material fact contained in the Prospectus, any Preliminary Prospectus, the
Final Term Sheets, any Issuer Free Writing Prospectus or the ADR Prospectus
or
the omission or alleged omission therefrom of a material fact necessary in
order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against
any and all loss, liability, damage and expense whatsoever, as incurred, to
the
extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and
(iii) against
any and all expense whatsoever, as reasonably incurred (including, subject
to
Section 7(b)
hereof, the fees and disbursements of counsel chosen by the Representatives),
in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under clause (i) or (ii) above;
provided,
however, that no indemnified party may be indemnified under this Section
7(a),
if and to the extent that such indemnification is prohibited by law and that
this indemnity agreement shall not apply to any loss, liability, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
the
Representatives expressly for use in the Registration Statement (or any
amendment
17
thereto),
the ADR Registration Statement (or any amendment thereto), the Prospectus,
the
Preliminary Prospectus, the Final Term Sheets, any Issuer Free Writing
Prospectus or the ADR Prospectus.
(b) Each
Underwriter severally agrees to indemnify and hold harmless each of the Company,
its directors, each of the officers of the Company who signed the Registration
Statement or the ADR Registration Statement, the Company’s authorized
representative in the United States and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, against any
and
all loss, liability, damage and expense described in the indemnity contained
in
subsection (a) of this Section 7 as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the
documents referred to in subsection (a) of this Section 7 in reliance upon
and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in such
documents.
(c) Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability under
Subsections 7(a) or 7(b) above unless such failure deprives the indemnifying
party of substantial rights or defenses and shall not in any event relieve
such
indemnifying party from any liability which it may have otherwise than on
account of such indemnity obligations. Any indemnifying party may participate
at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. In the case of parties indemnified pursuant to
Section 7(a)
above, counsel to the indemnified parties shall be selected by the Underwriters,
and, in the case of parties indemnified pursuant to Section 7(b)
above, counsel to the indemnified parties shall be selected by the Company.
An
indemnifying party may participate at its own expense in the defense of any
such
action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. No indemnifying party will (a) without the prior
written consent of the indemnified parties (which consent will not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from
all
liability arising out of such claim, action, suit or proceeding and
18
does
not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of any indemnified party, or (b) be liable for any
settlement of any such action effected without its written consent (which
consent will not be unreasonably withheld), but if settled with the consent
of
the indemnifying party or if there be a final judgment in favour of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability
by
reason of such settlement or judgment.
(d) If
the indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or
(b)
above in respect of any losses, claims, damages or liabilities (or actions
in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Securities on the
other from the offering of the Securities to which such loss, claim, damage
or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall, if permitted by
applicable law, contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Securities on the other in connection with the statements
or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts, concessions
and commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The Company and the Underwriters agree that it would not be just
and
equitable if contribution pursuant to this subsection (d) were determined by
pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the
equitable considerations referred to above in this subsection (d). The amount
paid or
payable
by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d)
19
shall
be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which
the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission; provided,
however, that no person will be entitled to contribution from the Company
under this subsection (d) if, and to the extent that, such contribution payment
is prohibited by law. 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 obligations of the Underwriters of Securities in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not
joint.
(e) The
obligations of the Company under this Section 7 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act; and the obligations
of
the Underwriters under this Section 7 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the
same terms and conditions, to each officer and director of the Company and
to
each person, if any, who controls the Company within the meaning of Section
15
of the Securities Act.
SECTION
8. Substitution Of Underwriters. If one or more
of the Underwriters shall fail at the Closing Date to purchase the Securities
which it is or they are obligated to purchase under this Agreement and the
Pricing Agreement (the “Defaulted Securities”), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein
set
forth; provided, however, that if the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if
the number of Defaulted Securities does not exceed 10% of the Securities which
the Underwriters are obligated to purchase at the Closing Date, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations under
the Pricing
Agreement relating to such Securities bear to the underwriting obligations
of
all non-defaulting Underwriters, or
20
(b) if
the number of Defaulted Securities exceeds 10% of the Securities which the
Underwriters are obligated to purchase at the Closing Date, the Pricing
Agreement relating to such Securities shall terminate without liability on
the
part of any non-defaulting Underwriter.
No
action
taken pursuant to this Section 8 shall relieve any defaulting Underwriter from
liability in respect of its default.
In
the
event of any such default which does not result in a termination of the relevant
Pricing Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement, the ADR
Registration Statement or Prospectus or in any other documents or
arrangements.
SECTION
9. Effectiveness. All representations, warranties
and agreements contained in this Agreement and any Pricing Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person,
or by or on behalf of the Company, and shall survive delivery of the Securities
to the Underwriters pursuant to this Agreement.
SECTION
10. Termination. (a) The Representatives may
terminate this Agreement, immediately upon notice to the Company, at any time
prior to the Closing Date (i) if there has been, since the date of the Pricing
Agreement or the respective dates as of which information is given in the
Registration Statement, the ADR Registration Statement, the Disclosure Package
and the Prospectus, except as otherwise set forth or contemplated therein,
any
material adverse change in the condition, financial or otherwise, or in the
results of operations, of the Company and its subsidiaries considered as one
enterprise, or (ii) if there has occurred any outbreak or escalation of
hostilities involving the United States or the United Kingdom or the declaration
by the United States or the United Kingdom of a national emergency or war,
or
(iii) the occurrence of another calamity or crisis or any change in financial,
political or economic conditions or currency exchange rates or controls in
the
United States, the United Kingdom or elsewhere, if the effect of any such event
specified in clause (ii) and (iii) in the reasonable judgment of the
Representatives (after consultation with the Company) makes it impracticable
or
inadvisable to market the Securities or enforce contracts for the sale of the
Securities in the manner contemplated in the Prospectus, or (iv) if there has
occurred a suspension or material limitation in trading in securities generally
on the New York Stock Exchange, London Stock Exchange or any other
stock exchange on which the Company’s securities are listed, or (v) if there has
occurred a suspension or material limitation in trading the Company’s securities
on the New York Stock Exchange or the London Stock Exchange, or
21
(vi)
if
there has occurred a material adverse change in the financial markets in the
United States or in the international financial markets, or (vii) if a banking
moratorium on commercial banking activities has been declared by the relevant
authorities in New York or London, or a material disruption in commercial
banking or securities settlement or clearance services in the United States
or
the United Kingdom has occurred, or (viii) if there has occurred a change or
development involving a prospective change in the United States or the United
Kingdom taxation affecting the Company or the Securities or the transfer
thereof, or (ix) if there is any lowering of the rating of any of the Company’s
debt securities or preference shares by Xxxxx’x Investors Service, Inc.,
Standard and Poor’s Rating Services, a division of the XxXxxx-Xxxx Companies,
Inc., or Fitch, Inc.
(b) Survival
Of Certain Provisions. If this Agreement is terminated pursuant
to Sections 6,
8
or 10 hereof, such termination shall be without liability of any party to any
other party except as provided in Section 5 or Section 8 hereof. Notwithstanding
any such termination, the provisions of Sections 5, 7, 9 and 13 shall remain
in
effect.
SECTION
11. Representation and Notices. In all dealings
hereunder, the Representatives of the Underwriters of the Securities shall
act
on behalf of each of such Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf
of
any Underwriter made or given by such Representatives jointly or by such of
the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
All
statements, requests, notices and agreements hereunder shall be in writing,
and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Representatives as set forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by mail, telex
or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Company Secretary; provided,
however, that any notice to an Underwriter pursuant to Section
7(b) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters’
Questionnaire, or telex constituting such Questionnaire, which address will
be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
SECTION
12. Parties. This Agreement and any Pricing
Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Company
and their respective successors. Nothing expressed or mentioned in this
Agreement or any Pricing Agreement is intended or shall be construed to give
any
person, firm or corporation, other than the Underwriters and the Company
and
22
their
respective successors and the controlling persons and officers, directors and
authorized representative of the Company referred to in Section 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any Pricing Agreement or any provision
herein or therein contained. This Agreement and any Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers, directors and authorized
representative of the Company and their heirs and legal representatives, and
for
the benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of
such
purchase.
SECTION
13. Submission To Jurisdiction. (a) The Company
irrevocably consents and agrees, for the benefit of the Underwriters, that
any
legal action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection with this
Agreement or the Pricing Agreement may be brought in the courts of the State
of
New York or the courts of the United States of America located in the Borough
of
Manhattan, The City of New York and hereby irrevocably consents and submits
to
the non-exclusive jurisdiction of each such court in personam, generally and
unconditionally with respect to any action, suit or proceeding for itself and
in
respect of its properties, assets and revenues.
(b) The
Company hereby irrevocably designates, appoints, and empowers Xxxxx X. XxXxxxxx,
Chief US Counsel, Lloyds TSB Bank plc, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX, 00000, as its designee, appointee and agent to take process, receive and
forward process or to be served with process for and on its behalf of any and
all legal process, summons, notices and documents which may be served in any
such action, suit or proceeding brought in any such United States or State
court
which may be made on such designee, appointee and agent in accordance with
legal
procedures prescribed for such courts. If for any reason such designee,
appointee and agent hereunder shall cease to be available to act as such, the
Company agrees to designate a new designee, appointee and agent in The City
of
New York on the terms and for the purposes of this Section 13 satisfactory
to
the Representatives. The Company further hereby irrevocably consents and agrees
to the service of any and all legal process, summons, notices and documents
out
of any of the aforesaid courts in any such action, suit or proceeding by serving
a copy thereof upon the relevant agent for service of process referred to in
this Section 13 (whether or not the appointment of such agent shall for any
reason prove to be ineffective or such agent shall accept or acknowledge such
service) or by mailing copies thereof by registered or certified air mail,
first
class, postage prepaid,
to each of them at their respective addresses specified in or designated
pursuant to this Agreement. The Company agrees that the failure of any such
designee, appointee and agent to give any notice of such service to it shall
not
impair or affect in any way the validity of such service or any judgment
rendered
23
in
any
action or proceeding based thereon. Nothing herein shall in any way be deemed
to
limit the ability of any Underwriter to serve any such legal process, summons,
notices and documents in any other manner permitted by applicable law or to
obtain jurisdiction over the undersigned or bring actions, suits or proceedings
against the undersigned in any jurisdictions, and in any manner, as may be
permitted by applicable law. The Company hereby irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection which it may
now
or hereafter have to the laying of venue of any of the aforesaid actions, suits
or proceedings arising out of or in connection with this Agreement or the
Pricing Agreement brought in the United States federal courts or the courts
of
the State of New York located in the Borough of Manhattan, The City of New
York
and hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum.
SECTION
14. WAIVER OF JURY TRIAL. EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION
15. Representations By The Underwriters.
(a)
Each Underwriter severally represents and agrees that: (i) it has
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services and Markets
Xxx 0000 (the “FSMA”)) received by it in connection with the
issue or sale of any Securities in circumstances in which section 21(1) of
the
FSMA does not apply to the Company; and (ii) it has complied and will comply
with all applicable provisions of the FSMA with respect to anything done by
it
in relation to the Securities in, from or otherwise involving the United
Kingdom.
(b) In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member
State”), each Underwriter severally represents and agrees that
24
it
has not
made and will not make an offer of Securities to the public in that Relevant
Member State prior to the publication of a prospectus in relation to the
Securities which has been approved by the competent authority in that Relevant
Member State or where appropriate, approved in another Relevant Member State
and
notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may make an offer
of
Securities to the public in that Relevant Member State at any time: (a) to
legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities; (b) to any legal entity which has two or more of (1)
an
average of at least 250 employees during the last financial year; (2) a total
balance sheet of more than EUR 43,000,000; and (3) an annual net turnover of
more than EUR 50,000,000, as shown in its last annual or consolidated accounts;
or (c) in any other circumstances which do not require the publication by the
Company of a prospectus pursuant to Article 3 of the Prospectus Directive.
For
the purposes of this Section 15 of this Agreement, the expression “an offer of
Securities to the public” in relation to any Securities in any Relevant Member
State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Securities to be offered so as
to
enable an investor to decide to purchase or subscribe the Securities, as the
same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(c) Each
Underwriter represents and agrees that with respect to any other jurisdiction
outside of the United States it has not offered or sold and will not offer
or
sell any of the Securities in any jurisdiction, except under circumstances
that
resulted, or will result, in compliance with the applicable rules and
regulations of such jurisdiction and which will not require the publication
by
the Company of a prospectus or any registration or filing by the Company with
any governmental agency or body or any stock exchange authority.
(d) (i)
Each Underwriter represents and agrees that it shall not use, refer to or
distribute any Free Writing Prospectus except: (A) a Free Writing
Prospectus that (a) is not an Issuer Free Writing Prospectus, and (b) contains
only information describing the preliminary terms of the Securities or their
offering or otherwise permitted under Rule 134 of the Securities Act; (B) a
Free
Writing Prospectus as shall be agreed in writing with the Company that is not
distributed, used
or
referenced by such Underwriter in a manner reasonably designed to lead to its
broad unrestricted dissemination unless the Company consents to such
dissemination; and
25
(ii) The
Company hereby agrees that the Underwriters may distribute to investors a Free
Writing Prospectus that contains the final terms of the Securities substantially
in the form set forth in Annex III hereto and that such Free Writing Prospectus
substantially in the form set forth in Annex III hereto will be filed by the
Company in accordance with Rule 433(d) and shall be considered an Issuer Free
Writing Prospectus for purposes of this Agreement.
SECTION
16. Nature Of Relationship. The Company hereby
acknowledges that Section 4 the purchase and sale of the Securities pursuant
to
this Agreement is an arm’s-length commercial transaction between the Company, on
the one hand, and the Underwriters and any affiliate through which any
Underwriter may be acting, on the other, Section 5 the Underwriters are acting
as principal and not as an agent or fiduciary of the Company and Section 6
the
Company’s engagement of the Underwriters in connection with the offering and the
process leading up to the offering is as independent contractors and not in
any
other capacity. Furthermore, the Company agrees that it is solely responsible
for making its own judgments in connection with the offering (irrespective
of
whether any of the Underwriters has advised or is currently advising the Company
on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the Company, in
connection with such transaction or the process leading thereto.
SECTION
17. Time. Time shall be of the essence of each
Pricing Agreement. As used herein, “business day” shall mean
any day when the Commission’s office in Washington, D.C. is open for
business.
SECTION
18. Governing Law. This Agreement and
each Pricing Agreement shall be governed by and construed in accordance with
the
laws of the State of New York without reference to conflict of laws provisions
thereof. Specified times of day refer to New York City
time.
SECTION
19. Counterparts. This Agreement may be executed
in one or more counterparts and, when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
SECTION
20. Effect Of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not
affect the construction hereof.
[The
rest
of this page is intentionally left blank.]
26
If
the
foregoing is in accordance with your understanding, please sign and return
to us
[number of copies] counterparts hereof.
|
Very
truly yours,
|
|||
|
|
By:
|
||
| Name | |||
| Title | |||
|
[number
of required signatories to be determined]
|
|||
[The
rest
of this page is intentionally left blank.]
27
|
Accepted
as of the date hereof:
|
|||
[Name
of Representative]
[names
of other Underwriters]
By:
[Name of Representative]
|
|
By:
|
||
| Name: | |||
| Title: |
For
themselves and as representatives of the several Underwriters
28
ANNEX
I
Form
of
Pricing
Agreement
[Name
of Representative]
As
Representative of the several
Underwriters
named in Schedule I hereto
|
c/o
|
[Name
of Representative]
|
| [Address of Representative] |
[•],
2007
Ladies
and
Gentlemen:
Lloyds
TSB
Group plc, a public limited company incorporated under the laws of Scotland
and
registered in Scotland (the “Company”), proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
[•], 2007 (the “Underwriting Agreement”), between the Company
on the one hand and the several Underwriters on the other hand, to issue and
sell to the Underwriters named in Schedule I hereto (the
“Underwriters”) the securities specified in Schedule II hereto
(the “Securities”). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of
the
date of this Pricing Agreement, except that each representation and warranty
which refers to the Disclosure Package and/or the Prospectus in Section 1 of
the
Underwriting Agreement shall be deemed to be a representation or warranty as
of
the date of the Underwriting Agreement in relation to the Disclosure Package
and/or the Prospectus (each as therein defined), as the case may be, and also
a
representation and warranty as of the date of this Pricing Agreement in relation
to the Disclosure Package and/or the Prospectus (as amended or supplemented),
as
the case may be relating to the Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of
the
Underwriters of the Securities pursuant to Section 11 of the Underwriting
Agreement and the
29
address
of
the Representatives referred to in such Section 11 are set forth at the end
of
Schedule II hereto.
An
amendment to the Registration Statement, or a supplement to the Prospectus,
as
the case may be, relating to the Securities, in the form heretofore delivered
to
you is now proposed to be filed with the Commission.
Subject
to
the terms and conditions set forth herein (including Schedules I and II hereto)
and in the Underwriting Agreement incorporated herein by reference, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at
the time and place and at the purchase price to the Underwriters set forth
in
Schedule II hereto, the number of the Securities set forth opposite the name
of
such Underwriter in Schedule I hereto.
If
the
foregoing is in accordance with your understanding, please sign and return
to us
[number of copies] counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which
shall be submitted to the Company for examination upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
[The
rest
of this page is intentionally left blank.]
30
|
Very
truly yours,
|
|||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
[number
of required signatories to be determined]
|
|||
[The
rest
of this page is intentionally left blank.]
31
|
Accepted
as of the date hereof:
|
|||
[Name
of Representative]
[names
of other Underwriters]
By:
[Name of Representative]
|
|
By:
|
||
| Name: | |||
| Title: |
For
themselves and as representatives of the several Underwriters
32
SCHEDULE
I
|
Number
of
Securities
to be Purchased
|
|||
|
Series
[·]
|
|||
|
[Name
of Representative]
|
[ ]
|
||
|
[Names
of other Underwriters].....
|
[ ]
|
||
|
Total:
|
[ ]
|
||
33
SCHEDULE
II
Capitalized
terms used herein, unless otherwise stated, shall have the meaning set forth
in
the Underwriting Agreement.
SERIES
[·] PREFERENCE
SHARES
Title
of Securities:
Non-cumulative
Dollar Preference Shares, Series [·], to be
represented
by American Depositary Shares, Series [·], to be
evidenced
by American Depositary Receipts, with one American Depositary Share representing
one Non-cumulative Dollar Preference Share
Number
of Shares:
[ ]
Price
to Public:
$[•]
per
Series [·]
Preference
Share, plus accrued dividends, if any, from [•], 2007
Underwriting
Commission:
[•]
per
Security
Form
of Securities:
American
Depositary Receipts evidencing American Depositary Shares, Series [·] representing
Non-cumulative Dollar Preference Shares, Series [·], to be
made
available for checking and packaging at least twenty-four hours prior to the
Closing Date at the office of the Representatives
Specified
Funds for Payment of Purchase Price:
Wire
transfer of immediately available funds
Account
for Payment of Purchase Price:
Name
of
Bank: [•]
City/State
of Bank: [•]
BIC:
[•]
ABA
Number: [•]
Name
of
Account: [•]
34
Account
Number at Bank: [•]
BIC
of
account holder: [•]
Closing
Date:
9:30
a.m.
(New York time) on [•], 2007
Redemption
Provisions:
[to
come]
Initial
Dividend Payment Date:
_______
___, 2007
Dividends:
[to
come]
Votes
per Preference Share:
One
in
certain circumstances only
Closing
Location:
Offices
of
Xxxxx Xxxx & Xxxxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx
Xxxxxxx
Names
and Addresses of Representatives:
Designated
Representatives: [Name of Representative].
Address
for Notices, etc.:
[Address
of Representative]
Attention:
[•]
Other
Terms:
The
Securities will have additional terms as more fully described in the Disclosure
Package and the Prospectus
35
ANNEX
II
FREE
WRITING PROSPECTUSES
|
·
|
Final
Term Sheet, dated [•], 2007, relating to the Series [·]
Preference
Shares, as filed pursuant to Rule 433 under the Securities
Act
|
|
·
|
[any
others]
|
36
ANNEX
III
FORM
OF FINAL TERM SHEET
|
Issuer:
|
|
|
Ratings:
|
|
|
Security
Type:
|
Non-cumulative
Dollar Preference Shares, Series [Series number], to be
represented by American Depositary Shares, Series [Series
number], to be evidenced by American Depositary Receipts, with one
American Depositary Share representing one Non-cumulative Dollar
Preference Share
|
|
Number
of Shares:
|
|
|
Price
to Public:
|
|
|
Underwriting
Commission:
|
|
|
CUSIP:
|
|
|
ISBN:
|
|
|
Legal
Format:
|
SEC
Registered
|
|
Redemption:
|
|
|
Dividend:
|
|
|
Initial
Dividend Payment Date:
|
|
|
Underwriters:
|
The
issuer has filed a
registration statement (including a prospectus) with the U.S. Securities and
Exchange Commission (the “SEC”) for this offering. Before
you invest,
you should read the prospectus for this offering in that registration statement,
and
other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by
searching the SEC
online database
(XXXXX®)
at xxx.xxx.xxx. Alternatively,
you
may obtain a copy of the prospectus from [Name of
Representative] by
calling [contact
details].
00
XXXXX
XX
XXXXXXX
XX
XXXXX
XXXX & XXXXXXXX, XXXXXX XXXXXX COUNSEL
FOR
THE COMPANY
Based
upon
the foregoing, we are of the opinion that:
(a) The
Deposit Agreement dated as of [•], 2007 between the Company and
[Depositary], as depositary (the “ADR Depositary”) and
all holders from time to time of ADRs (the “ADR Deposit
Agreement”) constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors’ rights generally and to general equity
principles.
(b) Assuming
the ADRs are issued in conformity with the Deposit Agreement, the ADRs conform
in all material respects as to legal matters to the description thereof
contained in the Disclosure Package and the Prospectus.
(c) Upon
due issuance by the ADR Depositary of the ADRs evidencing the ADSs against
deposit of the Series [·] Preference
Shares
in accordance with the provisions of the ADR Deposit Agreement, such ADRs will
be duly and validly issued and persons in whose names such ADRs are registered
will be entitled to the rights of registered holders of ADRs specified therein
and in the ADR Deposit Agreement.
(d) The
Company is not and, after giving effect to the offering and sale of the
Preference Shares and the application of the proceeds thereof as described
in
the Disclosure Package and the Prospectus, will not be required to register
as
an “investment company”, as such term is defined in the Investment Company Act
of 1940, as amended.
(e) No
consent, approval, authorization or order of, or qualification with, any
governmental body or agency under United States federal or New York state law
that in our experience is normally applicable to general business corporations
in relation to transactions of the type contemplated by the Underwriting
Agreement (including the Pricing Agreement), is required for the performance
by
the Company of its obligations under the Underwriting Agreement (including
the
Pricing Agreement), except such as have been obtained and such as may be
required under state securities or Blue Sky laws in connection with the offer
and sale of the Preference Shares.
(f) The
Series [·]
Preference Shares are among the dollar preference shares covered by the
Registration Statement.
38
(g) Assuming
that the Underwriting Agreement (including the Pricing Agreement) has been
duly
authorized, executed and delivered by the Company insofar as Scots law is
concerned, the Underwriting Agreement, including the Pricing Agreement, has
been
duly executed and delivered by the Company.
(h) The
performance by the Company of its obligations under the Underwriting Agreement
(including the Pricing Agreement) will not contravene any statute of the State
of New York or the United States, or any order, rule or regulation of any
governmental agency or body of the United States or the State of New York that
in our experience is normally applicable to transactions of the type
contemplated by the Underwriting Agreement (including the Pricing
Agreement).
(i) Assuming
the validity of such action under Scots law, under the laws of the State of
New
York relating to submission to jurisdiction, the Company has, pursuant to
Section 15 of the Underwriting Agreement validly and irrevocably submitted
to
the personal jurisdiction of any New York state or U.S. federal court located
in
the State of New York, Borough of Manhattan in the City of New York (each a
“New York Court”), in any action arising out of or relating to
the Underwriting Agreement and the Pricing Agreement and has, to the fullest
extent permitted by law, validly and irrevocably waived any objection to the
laying of venue of a proceeding in any such court, and has validly and
irrevocably appointed Xxxxx X. XxXxxxxx, Chief US Counsel, Lloyds TSB Bank
plc, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 00000 as its initial authorized
agent for the purposes described in Section 13 of the Underwriting Agreement;
and service of process effected on such agent in the manner set forth in Section
13 of the Underwriting Agreement will be effective service of process in any
such action upon the Company.
We
have
considered the statements set forth in the Disclosure Package and the Prospectus
under the caption “Certain US Federal and UK Tax Consequences” insofar as they
purport to describe certain US federal income tax laws as they relate to US
Holders (as defined therein). In our opinion, such statements constitute a
fair
summary of the principal US federal income tax consequences to such US Holders
of an investment in the Securities in all material respects.
We
have
not ourselves checked the accuracy, completeness or fairness of, or otherwise
verified, the information furnished with respect to other matters in the
Registration Statement, the Disclosure Package or the Prospectus. We have
generally reviewed and discussed with certain officers and employees of, and
solicitors and independent public accountants for, the Company and with
representatives of the Underwriters and counsel for the Underwriters the
information furnished, whether or not subject to our check and verification.
On
the basis of such consideration, review and discussion, but without
independent
39
check
or
verification, except as stated, (1) in our opinion, the Registration Statement,
the Preliminary Prospectus and the Prospectus appear on their face to be
appropriately responsive in all material respects to the requirements of the
Act
and the rules and regulations of the Commission thereunder, (2) nothing has
come
to our attention that causes us to believe that (i) any part of the Registration
Statement, when such part became effective, contained any untrue statement
of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the Disclosure
Package, as of the Applicable Time, included any untrue statement of a material
fact or omitted 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, (iii) the Prospectus, as of its date and as of the Closing
Date, the Prospectus was issued, the date of any amendment or supplement to
the
Prospectus or at the date hereof, included or includes any untrue statement
of a
material fact or omitted 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 and (3) in our opinion, the documents incorporated by
reference in the Prospectus appear on their face to be appropriately responsive
in all material respects to the applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder. In expressing the foregoing opinions and belief, we
have
not been called to pass upon, and we express no opinion or belief as to, (1)
the
financial statements or financial schedules or other financial or statistical
data included in the Registration Statement or Prospectus or (2) any Statement
of Eligibility of the Trustee on Form T-1. For purposes of this paragraph,
the
term “financial data” includes, without limitation, the data required to be
included in the Registration Statement and Prospectus under the Act by Guide
3,
Statistical Disclosure by Bank Holding Companies.
40
ANNEX
V
OPINION
OF
DUNDAS
& XXXXXX XX LLP, SCOTTISH SOLICITORS
TO
THE COMPANY
Based
upon
and subject to the foregoing and subject to the qualifications set out below
and
to any matters not disclosed to us, it is our opinion that so far as the present
law of Scotland is concerned:-
(a) The
Company has been duly incorporated in Scotland as a limited liability company
and is validly registered under the law of Scotland, is not in liquidation,
and
has the corporate power and authority under such law to conduct its businesses
as described in the Disclosure Package and the Prospectus.
(b) The
Series [·]
Preference Shares have been duly created and, when allotted, issued and paid
for
in accordance with the Pricing Agreement, the Underwriting Agreement (including
payment in full of premium) and the Nominee Agreement (i) will be validly
issued, fully paid and not subject to further calls or contribution and (ii)
no
holder thereof will be subject to personal liability to the Company or any
creditors thereof by reason only of being such a holder, and the issue of such
Preference Shares will not be subject to the pre-emptive rights of any
shareholder of the Company.
(c) The
statements made in the Disclosure Package and the Prospectus with regard to
Scots law under the heading “Description of Dollar Preference Shares”, and in
the Disclosure Package and the Prospectus Supplement with regard to Scots law
under the heading [“Certain Terms of the Preference Shares”] insofar as such
statements constitute a summary of certain of the rights and privileges of
the
holders of the [Preference Shares] under Scots law or a summary of the
documents, legal matters or proceedings under Scots law referred to therein,
are
accurate in all material respects, provided that we express no opinion as to
the
reasonableness, completeness or fairness of such statements as an indication
of
shareholder rights generally in the context of a prospectus issued publicly
in
the United States of America.
(d) The
creation and issue of the Series [·] Preference
Shares
and the execution, delivery and performance by the Company of the ADR Deposit
Agreement, Underwriting Agreement, the Pricing Agreement and the Nominee
Agreement is within the corporate power of the Company and have been duly
authorized by all necessary corporate action of the Company.
(e) The
obligations on the part of the Company under the ADR Deposit Agreement and
the
Nominee Agreement are valid and legally binding against the Company, subject
as
to enforcement to bankruptcy, insolvency, re-organization
41
and
other
laws of general applicability relating to or affecting creditors’ rights
generally and to general equity principles.
(f) No
authorizations, approvals, consents or licenses of governmental, judicial or
public bodies or authorities of or in Scotland (together
“consents”), except such consents as may be required under
statutory provisions (other than the Companies Acts, 1985 and 1989 as they
apply
to a company having its registered office in Scotland) or regulations or
practices applying in Great Britain as a whole, are required by the Company
as a
result of the Company being a Scottish registered company for the valid
creation, allotment, issue and delivery of the Series [·] Preference
Shares.
(g) Neither
the execution, delivery and performance by the Company of the ADR Deposit
Agreement, the Underwriting Agreement, the Pricing Agreement and the Nominee
Agreement, nor the creation, allotment and issue of the Series [·] Preference
Shares
will of itself result in any violation in any material respect of:-
(i) the
Memorandum and Articles of Association of the Company; or
(ii) any
existing applicable mandatory provision of Scots law or regulation;
or
(iii) any
existing judgment, order of decree or any Scottish court.
(h) The
Underwriters would under current practice of the Scottish courts (assuming
the
effect of Section 13 of the Underwriting Agreement is not to prorogate the
exclusive jurisdiction of the United States courts or the courts of or in the
State of New York) be permitted to commence proceedings in the Scottish courts
for enforcement of the Underwriting Agreement and the Scottish courts would
accept jurisdiction in any proceedings for so long as the Company remained
domiciled in Scotland and, upon proper averments being made in a Scottish court
in any such proceedings, the choice of the law of the State of New York as
the
proper law of the Underwriting Agreement would be upheld as a valid choice
of
law by that court.
(i) The
ADR Deposit Agreement, the Underwriting Agreement, the Pricing Agreement and
the
Nominee Agreement have, insofar as Scots law governs the formalities of
execution and delivery thereof, been duly executed by or on behalf of the
Company.
(j) The
submission by the Company in Section 13 of the Underwriting Agreement to the
jurisdiction of the courts of or in New York, and the
42
designation,
appointment and empowerment by the Company under the said Section 13 of an
agent
for service, would be upheld by the Scottish courts as valid and
effective.
(k) In
relation to any of the ADR Deposit Agreement, or the Underwriting Agreement
and
the Pricing Agreement which is expressed to be governed by the law of the State
of New York as its proper law, a judgment of the courts of the State of New
York
as the relevant forum would be recognized in Scotland through an action of
decree–conform under common law in the Court of Session in Scotland, assuming
that (i) the court which issued the judgment had jurisdiction and acted
judicially with no element of unfairness, (ii) such judgment was final, not
obtained by fraud, or a revenue or penal action, remained capable of enforcement
in the place it was pronounced and was not contrary to natural justice, and
(iii) enforcement of the judgment is not contrary to Scottish public
policy.
43
ANNEX
VI
OPINION
OF LINKLATERS LLP
ENGLISH
SOLICITORS TO THE COMPANY
We
are of
the opinion that:-
(a) It
is not necessary to obtain any approval, consent, order or permission of, or
to
effect any further filing, recording or registration with, any public authority
or governmental agency in England or authorization from any regulatory
authority, government department or court in England (other than any consents,
approvals or authorizations required under the Companies Xxx 0000 as it applies
to a company having its registered office in Scotland - as to which we
understand you are relying upon an opinion of Dundas & Xxxxxx XX LLP) in
respect of the execution, delivery or performance of the Securities, the ADR
Deposit Agreement, the Underwriting Agreement, the Pricing Agreement, the
Nominee Agreement, or, in particular:
(i) for
the valid authorization, allotment, issue and delivery of the Securities to,
or
at the direction of, the Underwriters; or
(ii) to
enable the Company to make any payment to the holders of the Securities
including any payment on a return of capital on a winding up of the Company
to
the holders of the Securities in United States dollars;
(b) No
filing or registration of the Registration Statement, the Disclosure Package,
the Prospectus and Prospectus Supplement, the ADR Registration Statement, the
ADR Prospectus, or any other prospectus or circular is necessary under
legislation of general application in the United Kingdom (other than any filings
or registrations required under the Companies Xxx 0000 as it applies to a
company having its registered office in Scotland - as to which we do not express
an opinion) in connection with the allotment, issue and delivery of the Series
[·] Preference
Shares or the sale of Series [·] Preference
Shares
to the Underwriters.
(c) The
statements in the Disclosure Package and the Prospectus under the section headed
“Certain US Federal and UK Tax Consequences”, insofar as such statements
constitute a general summary of both current United Kingdom tax law and H.M.
Revenue & Customs’ practice relevant to the issue of the Securities fairly
and accurately summarize the matters referred to therein; provided however
that
we express no opinion as to the reasonableness, completeness or fairness of
such
statements in the context of a prospectus issued publicly in the United States
of America or as to the compliance of such statements with the requirements
of
the securities laws of the United States of America or any part
thereof.
44
(d) Subject
as described under the heading “Stamp Duty and Stamp Duty Reserve Tax” in the
section of the Disclosure Package and the Prospectus headed “Certain U.S.
Federal and U.K. Tax Consequences”, no United Kingdom stamp duty, stamp duty
reserve tax, capital duty, registration or other issue or documentary taxes
are
payable in the United Kingdom on (i) the creation, issue or delivery by, or
on
behalf of, the Company of the Series [·] Preference
Shares
in bearer form or (ii) the deposit with the Depositary of the Series [·] Preference
Shares
in bearer form, the execution and delivery of the Pricing Agreement, the
Underwriting Agreement, the Nominee Agreement or the ADR Deposit Agreement
or
the consummation of the transactions contemplated thereby.
(e) No
United Kingdom value added tax will be payable by the Underwriters in respect
of
their underwriting commissions under the Underwriting Agreement and the Pricing
Agreement.
(f) Neither
the execution and delivery of the Underwriting Agreement, the Pricing Agreement,
the Nominee Agreement and the ADR Deposit Agreement by the Company, nor the
compliance by the Company with its obligations under the Underwriting Agreement,
the Pricing Agreement, the Nominee Agreement or the ADR Deposit Agreement will,
of itself, breach (A) any mandatory provision of English law of general
application binding on the Company, or (B) any covenant (other than any
financial or similar covenant) contained in any of the following
documents:-
[List
all Trust Deeds currently in force.]
(g) The
Nominee Agreement constitutes valid and binding obligations of the Company
and
[Nominee], enforceable against each such company in accordance with its
terms. Clause [•] of the Nominee Agreement is sufficient to create a valid trust
under English law and to ensure that no Group Company (as defined therein)
will
be beneficially interested under that trust.
For
the
purposes of the opinion contained in paragraph 6 above we have interpreted
the
effect of the Underwriting Agreement, the Pricing Agreement, the Nominee
Agreement, and the ADR Deposit Agreement as if they were governed by and
construed in accordance with English law. Such opinion should not be taken
as
expressing an opinion as to the observance of any financial or similar covenant
contained in the documents listed above.
45
ANNEX
VII
OPINION
OF XXXXX XXXXXX & XXXXXX LLP,
COUNSEL
TO THE ADR DEPOSITARY
(a) the
ADR Deposit Agreement has been duly authorized, executed and delivered by the
Depositary and, assuming due authorization, execution and delivery of the ADR
Deposit Agreement by the Company and further assuming that the ADR Deposit
Agreement is a valid and binding agreement of the Company, constitutes a valid
and legally binding obligation of the Depositary enforceable in accordance
with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar laws
of
general application relating to or affecting creditors’ rights and by general
principles of equity;
(b) upon
the issuance by the Depositary of ADRs evidencing ADSs against the deposit
of
the Series [·]
Preference Shares in accordance with the provisions of the ADR Deposit Agreement
(assuming such shares were, at the time of such deposit, (a) duly authorized
and
validly issued, fully paid and not subject to further calls or contribution
and
(b) registered in compliance with the Securities Act of 1933, as amended, (the
“Securities Act”)), such ADRs will be duly and validly issued;
(c) the
ADRs issued under and in accordance with the provisions of the Deposit Agreement
will entitle the holders thereof to the rights specified therein and in the
Deposit Agreement; and
(d) the
legal entity for the issuance of ADRs filed a registration statement for the
ADSs (the “ADR Registration Statement”) on Form F-6 in accordance with Rule 466
under the Securities Act and pursuant to Rule 466, the ADR Registration
Statement became effective immediately upon filing, and, to our knowledge,
no
stop order suspending the effectiveness of the ADR Registration Statement or
any
part thereof and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act and the rules and regulations
thereunder.
00
XXXXX
XXXX
XXXXXXX
XX XXXXX & XXXXX XXX,
XXXXXX
XXXXXX COUNSEL FOR THE UNDERWRITERS
Assuming
the ADR Deposit Agreement has been duly authorized, executed and delivered
by
the Company and the Depositary, and assuming each of the Company and the
Depositary has full power, authority and legal right to enter into and perform
its obligations thereunder, the ADR Deposit Agreement constitutes a valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, reorganization and other
laws
of general applicability relating to or affecting creditors’ rights and to,
general equity principles.
The
Registration Statement (except the financial statements, financial
schedules and other financial data or statistical data included therein or
incorporated therein by reference, and Form T-1 as to which we do not express
any opinion), at the time each part thereof became effective, and the ADR
Registration Statement, at the time it became effective, and the Prospectus
and
ADR Prospectus (except as aforesaid), as of the date thereof, and the Disclosure
Package as of the Applicable Time appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the Rules and Regulations.
Assuming
the ADRs are issued in conformity with the ADR Deposit Agreement, such ADRs,
when issued, will conform in all material respects as to legal matters to the
description thereof contained in the Disclosure Package and the
Prospectus.
Assuming
the effectiveness of the ADR Registration Statement, upon due issuance by the
Depositary of the ADRs evidencing the ADSs against the deposit of Series [·] Preference
Shares
in accordance with the provisions of the ADR Deposit Agreement, such ADRs will
be duly and validly issued and persons in whose names such ADRs are registered
will be entitled to the rights of registered holders of the ADRs specified
therein and in the ADR Deposit Agreement.
We
have
participated in conferences with officers and representatives of the Company,
representatives of the independent accountants of the Company and the
representatives of the Underwriters at which the contents of the Registration
Statement, the Disclosure Package and the Prospectus and related matters were
discussed. We have not participated in the preparation of the Company’s Annual
47
Report
on
Form 20-F for the year ended December 31, 2006 or of any of the Company’s
Reports on Form 6-K, which are incorporated by reference in the Registration
Statement and Prospectus. We are not passing upon, or assuming responsibility
for, the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and Prospectus, and
have
made no independent check or verification thereof. On the basis of
the document review described in the [second] paragraph of this opinion and
the
foregoing conferences in which we participated, no fact has come to our
attention that has caused us to believe that (i) any part of the Registration
Statement (except for financial statements and schedules and other financial
data or statistical data included or incorporated by reference therein or
omitted therefrom and the Form T-1, as to which we do not make any statement),
at the Effective Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, (ii) the Disclosure Package (except
for financial statements and schedules and other financial data or statistical
data included or incorporated by reference therein or omitted therefrom and
the
Form T-1, as to which we do not make any statement), at the Applicable Time,
contained an untrue statement of a material fact or omitted to state a material
fact required to the stated therein or necessary to make the statements therein
misleading or (iii) the Prospectus (except for financial statements and
schedules and other financial data or statistical data included or incorporated
therein or omitted therefrom, as to which we do not make any statement), as
of
the date that the Prospectus was issued, the date of any amendment or supplement
to the Prospectus or at the date hereof, included or includes an untrue
statement of a material fact or omitted or omits 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.
48
