EXHIBIT 0
XXX XXXXX XXXX XX XXXXXXXX GROUP plc
[Debt Securities]
[Dollar Preference Shares]
Underwriting Agreement
____________ __, ____
[Names of Representative(s)]
Ladies and Gentlemen:
From time to time The Royal Bank of Scotland Group plc, a public
limited company organized under the laws of Great Britain 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 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) certain of its debt securities or Preference Shares (as
defined below) (the "Securities") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and,
in the case of debt securities, in or pursuant to either a capital security
indenture ("Capital Security Indenture") or a subordinated debt indenture
("Subordinated Debt Indenture" and together with the Capital Security
Indenture, the "Indentures"). The term "Indenture" when used herein, refers to
the relevant indenture identified in the related Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated 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 Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal amount or
liquidation preference, as the case may be, of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters and the principal amount or liquidation preference, as the
case may be, of such Designated Securities to be purchased by each Underwriter
and shall set forth the date, time and manner of delivery of such Designated
Securities and payment therefor. The Pricing Agreement shall also specify (to
the extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities,
including whether they are convertible, at the option of the Company, into
non-cumulative U.S. dollar-denominated preference shares of the Company, having
a nominal value of $.01 and a liquidation preference of $25 per Share (the
"Preference Shares") or other securities of the Company and whether such
Preference Shares may be deposited with the Bank of New York, as depositary
(the "ADR Depositary") pursuant to a deposit agreement, dated as of August 17,
1992, as amended from time to time (the "ADR Deposit Agreement") among the
Company, the ADR Depositary and the holders from time to time of American
Depositary Receipts ("ADRs") to be issued by the Depositary and evidencing
American Depositary Shares ("ADSs"). 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.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form F-3 (No.
333-_____) and related preliminary prospectus for the registration of the
Securities in accordance with the provisions of the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations of the Commission
thereunder (the "1933 Act Regulations"). In addition, the Company may, if
applicable, prepare and file with the Commission a registration statement, or
registration statements, on Form F-6 and a related prospectus for the
registration under the 1933 Act of the ADSs.
The registration statement on Form F-3, as amended, if applicable, to
the date on which it became effective prior to the date of this Agreement (or,
if not effective at the date of this Agreement, in the form in which it shall
thereafter become effective), and the prospectus constituting a part thereof
(including in each case all documents, if any, incorporated by reference
therein to such date) are hereinafter referred to as the "Registration
Statement" and the "Prospectus", respectively, except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters by
the Company for use in connection with the offering of the Designated
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement became effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus or include such prospectus supplement, as the case may be, from and
after the time such revised prospectus or prospectus supplement is first
provided to the Underwriters for such use and if the Company files any
documents pursuant to Section 13, 14 or 15 of the Securities Exchange Act of
1934, as amended (the "1934 Act"), after the Registration Statement becomes
2
effective and prior to the termination of the offering of the Designated
Securities by the Underwriters, which documents are deemed to be or, in the
case of a Report on Form 6-K, are designated as being incorporated by reference
into the Prospectus pursuant to Form F-3 under the 1933 Act Regulations, the
term "Prospectus" shall refer to said prospectus as modified to include the
documents so filed from and after the time said documents are filed with or
furnished to the Commission.
The registration statement on Form F-6, if applicable, for the
registration of the ADSs evidenced by ADRs, in the form in which it shall be
declared effective by the Commission, and the prospectus included therein are
hereinafter called the "ADR Registration Statement" and the "ADR Prospectus",
respectively.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) The Prospectus does not include an 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 the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through
the Representatives expressly for use in the Registration Statement or
Prospectus, 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 under the Indenture (the "Trustee").
[include only if global offering--(b) The preliminary Prospectus
contained as of its date of issue all information in relation to the
Company and the Designated Securities (excluding information omitted in
reliance upon Rule 430 under the 0000 Xxx) which was (in the context of
the issue of the Designated Securities) material; as of such date such
information was true and accurate in all material respects and was not
misleading in any material respect; any opinions or intentions expressed
in the preliminary Prospectus were as of such date honestly held or made
and were not misleading in any material respect; the preliminary
Prospectus did not include an untrue statement of a material fact or omit
to state any material fact necessary to make such information, opinions,
predictions, projections or intentions (in such context) not misleading in
any material respect; and all proper inquiries were made to ascertain or
verify the foregoing.]
[include only if global offering-- (c) The Prospectus contains all
information in relation to the Company and the Designated Securities which
is (in the context of the issue of the Designated Securities) material;
such information is true and accurate in all material respects and is not
misleading in any material respect; any opinions or intentions expressed
in the Prospectus are honestly held or made and are not misleading in any
material respect; the Prospectus does not include an untrue statement of a
material fact or omit to state any material fact necessary to make such
information, opinions, predictions, projections or intentions (in such
context) not misleading in any material respect; and all proper inquiries
have been made to
3
ascertain or verify the foregoing; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Prospectus made in reliance upon and
in conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus, provided, further, that the
representations and warranties in this subsection shall not apply to that
part of the Registration Statement that constitutes the Form T-1 under the
Trust Indenture Act of the Trustee.]
[include only if global offering-- (d) The Prospectus contains all
such information as investors and their professional advisers would
reasonably require, and reasonably expect to find there in the context of
the issue of the Designated Securities, for the purpose of making an
informed assessment of the assets and liabilities, financial position,
profits and losses, and prospects of the Company and of the rights
attaching to the Designated Securities.]
[include only if global offering-- (e) The audited consolidated
financial statements of the Company for the 15 months ended December 31,
2000, the year ended December 31, 2000, the three months ended December
31, 1999 and the years ended September 30, 1999 and 1998 were prepared in
accordance with accounting principles generally accepted in the United
Kingdom and correctly reflect (in conjunction with the notes thereto) the
financial position of the Company for the years or periods then ended. The
audited consolidated financial statements of National Westminster Bank Plc
("NatWest") for the three financial years ended 31 December 1999 were
prepared in accordance with accounting principles generally accepted in
the United Kingdom and correctly reflect (in conjunction with the notes
thereto) the financial position of NatWest for the years then ended.]
(b) The documents incorporated by reference in the Registration
Statement pursuant to Item 6 of Form F-3 under the 1933 Act, at the time
they were filed with the Commission, complied in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, at the time the
Registration Statement became effective, the Registration Statement
complied in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and did not contain an 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, and
any further documents deemed to be or, in the case of a Report on Form
6-K, designated as being incorporated by reference in the Registration
Statement after the date of this Agreement but prior to the termination of
the offering of Designated Securities, will, when they are filed with or
furnished to the Commission, comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and, when read
together with the other information included or incorporated in the
Registration Statement, will not contain an 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 that the
representations and warranties in this subsection shall not apply to the
Form T-1 of the Trustee.
(c) At the time the ADR Registration Statement, if applicable,
becomes effective, the ADR Registration Statement and the ADR Prospectus
will comply in all material respects with the provisions of the 1933 Act
and the 1933 Act Regulations
4
and the ADR Registration Statement will not contain an 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. The
ADR Prospectus, as amended or supplemented, if applicable, will not
include an 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 will be made, not misleading.
(d) Since the respective dates as of which information is given in
the Registration Statement 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.
(e) The Company (A) has been duly incorporated in Great Britain and
is validly registered under the laws of Scotland; (B) has the requisite
corporate power and authority to execute and deliver this Agreement, the
Pricing Agreement, the Indentures, and the ADR Deposit Agreement, if
applicable, the calculation agency Agreement, if applicable and to perform
its obligations hereunder and thereunder; and (C) 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 to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
generally and to general equity principles.
(f) The ADR Deposit Agreement, if applicable, 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.
(g) The Royal Bank of Scotland plc (the "Bank") has been duly
incorporated in Great Britain and is validly registered under the laws of
Scotland, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus; and
all of the issued and outstanding share capital or capital stock of the
Bank is owned, directly or indirectly, by the Company.
(h) NatWest has been duly incorporated under the laws of England, has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus; and all of the
issued and outstanding ordinary share capital of NatWest is owned,
directly or indirectly, by the Company.
(i) The Preference Shares, if any, to be represented by the ADSs,
when allotted and issued upon exchange of the Designated Securities in
accordance with the terms thereof, (a) will be validly issued in
accordance with the requirements of the Companies Act of 1985 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
5
liability to the Company or to creditors of the Company by reason of being
such a holder.
(j) The Capital Security Indenture or the Subordinated Debt
Indenture, as the case may be, has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, constitutes the legal, valid and 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.
(k) The Designated Securities have been duly authorized by the
Company and, when executed, authenticated, issued and delivered against
payment therefor as contemplated hereby and by the applicable Indenture,
will have been duly executed, authenticated, issued and delivered and will
constitute the legal, valid and binding obligation of the Company,
enforceable 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.
(l) The Calculation Agency Agreement, if applicable, has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Calculation Agent,
constitutes the legal, valid and binding obligation of the Company,
enforceable 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.
(m) Each of the Capital Security Indenture or the Subordinated Debt
Indenture, as applicable, the Designated Securities and the ADRs, if any,
will conform in all material respects to the descriptions thereof
contained in the Prospectus.
(n) 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 by the Company of the transactions contemplated by this
Agreement or the Pricing Agreement or to permit the Company to effect
interest payments in United States dollars on the Designated Securities or
dividend payments in United States dollars on the Preference Shares, if
any, have been obtained and are in full force and effect, except such as
may be required under the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations or as may be required by state securities or
Blue Sky laws.
(o) No event has occurred or circumstances arisen which (after the
issuance of the Designated Securities) will constitute, or which, with the
giving of notice and/or the lapse of time would constitute, an Event of
Default or a Default under the Designated Securities.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
6
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such
Pricing Agreement, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriters, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
immediately available funds to an account designated by the Company in the
funds specified in such 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 "Time of Delivery" for such
Designated Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) The Company will notify the Representatives immediately on
becoming aware of (i) any request by the Commission for any amendment to
the Registration Statement or the ADR Registration Statement, if any, or
any amendment or supplement to the Prospectus or ADR Prospectus, if any,
or for additional information relating to the Registration Statement, the
ADR Registration Statement or the offering of the Designated Securities,
and (ii) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement or the initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance of any
such stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) The Company will 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 1934 Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Designated
Securities 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, if any, or any amendment or supplement to the
Prospectus or ADR Prospectus, if any, (including any revised prospectus
which the Company proposes for use by the Underwriters in connection with
the offering of the Designated Securities which differs from the
Prospectus, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) under the 1933 Act Regulations; provided that any
such revised prospectus required to be filed pursuant to Rule 424(b) will
be so filed not later than the time required by Rule 424(b)) and 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.
(c) The Company will prepare the Prospectus in relation to the
applicable Designated Securities and file such Prospectus pursuant to Rule
424(b) under the 1933 Act not later than the time required by Rule 424(b)
following the execution and delivery of the Pricing Agreement relating to
the applicable Designated Securities.
7
(d) The Company will deliver to the Representatives a signed copy of
the Registration Statement and the ADR Registration Statement if any, in
each case, as originally filed, and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference into the Registration Statement
pursuant to Item 12 of Form F-3 under the 0000 Xxx) and will also deliver
to the Representatives a conformed copy of the Registration Statement and
the ADR Registration Statement as originally filed and of each amendment
thereto (in each case without exhibits) for each of the Underwriters.
(e) The Company will furnish the Underwriters with copies of the
Prospectus 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 12:00 noon on the second business
day prior to the Time of Delivery and, if the delivery 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
Designated 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 1933 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 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 1933 Act.
(f) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Designated Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Representatives 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 Designated 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 Designated
Securities but in no event for a period longer than one year from the date
of this Agreement.
(g) The Company will make generally available to its security holders
as soon as practical, 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
1933 Act and the rules and regulations thereunder (including, at the
option of the Company, Rule 158).
8
(h) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives,
(ii) the Time of Delivery for such Designated Securities and (iii) in the
event that the Designated Securities are Preference Shares or securities
convertible into or exchangeable for Preference Shares, a period of ninety
days after the Time of Delivery, 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 mature more than
one year after such Time of Delivery and which are substantially similar
to such Designated Securities, without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld.
(i) Prior to the issuance of the Preference Shares, if any, 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 or the United Kingdom
necessary or required for the valid issuance of the Preference Shares or
to permit the Company to effect dividend payments on the Preference Shares
in United States dollars.
6. The Company will pay all expenses incident to the performance of
its obligations under this Agreement and any Pricing Agreement and under the
Indentures 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, if applicable, the preliminary prospectus and the
Prospectus and 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 Indentures, the ADR Deposit
Agreement and the ADRs, if any, and the Blue Sky Survey; (iii) the printing or
reproduction, preparation, issuance and delivery of the certificates, if any,
for the Securities to the Underwriters and any Global Securities, at the
direction of the Underwriters, to The Bank of New York, including any stock
transfer or other taxes or duties payable upon the delivery of the Securities
to The Bank of New York or Preference Shares, if any, to the ADR Depositary or
the sale of the Securities 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 5(f) 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 Designated Securities and in connection with the preparation of the Blue Sky
Survey and any Legal Investment Survey; (vi) the delivery to the Underwriters
of copies of the Blue Sky Survey; (vii) any costs, fees and charges of the ADR
Depositary, if applicable, 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 and the clearance and settlement of the
Securities through the facilities of The Depository Trust Company, Euroclear
and Clearstream, as applicable; (ix) to the Representative, for the account of
the several Underwriters, up to $[_______] for any reasonable out-of-pocket
expenses (including fees, disbursements and expenses of counsel to the
Underwriters) actually incurred; (x) any fees charged by securities rating
services for rating the Securities; (xi) the fees and expenses incurred in
connection with the filing of any materials with the National Association of
Securities Dealers, Inc.; (xii) any United Kingdom stamp duty, stamp
9
duty reserve tax or similar tax or duty imposed by the United Kingdom or any
political subdivision thereof upon the original issuance or delivery by, or on
behalf of, the Company of the Designated Securities, the deposit of Designated
Securities with a custodian for The Depository Trust Company or the initial
delivery, if any, of Designated Securities to The Bank of New York, the
exchange of Securities for Preference Shares at the option of the Company, if
applicable, the deposit of Preference Shares, if any, under the Deposit
Agreement by the Company, the purchase by the Underwriters of the Securities,
the sale and delivery of the Securities by the Underwriters outside the United
Kingdom to the initial purchasers thereof, and the execution and delivery of
this Agreement, the Pricing Agreement, the Indenture, the ADR Deposit
Agreement, if any; and (xiii) the fees and expenses of the Trustee, including
the reasonable fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities; (xiv) the fees and expenses of the
Calculation Agent, if any; and (xiv) any value added taxes payable in the
United Kingdom in respect of any of the above expenses.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 7 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 (7)(c)(1) hereof, such reimbursement
shall include only any expenses actually incurred (not to exceed $[______]).
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the 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 Designated Securities are, at and as
of the Time of Delivery for such Designated 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 on the date hereof or,
with the consent of the Representatives, at a later time and date, and at
the Time of Delivery no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The
Prospectus shall have been transmitted to the Commission for filing
pursuant to Rule 424(b)(2) of the 1933 Act Regulations within the time
period prescribed by Section 5(c) hereof, and prior to the Time of
Delivery the Company shall have provided evidence satisfactory to the
Representatives of such timely filing.
(b) At the Time of Delivery, the Representatives shall have received:
(1) The opinion, dated as of the Time of Delivery, of Xxxxx Xxxx
& Xxxxxxxx, United States counsel for the Company, in the form set
forth in Annex II hereto, subject to modifications to which the
Underwriters do not reasonably object.
(2) The opinion, dated as of the Time of Delivery, of Dundas &
Xxxxxx, X.X., Scottish solicitors to the Company, in the form set
forth in Annex III hereto, subject to modifications to which the
Underwriters do not reasonably object.
10
(3) The opinion, dated as of the Time of Delivery, of
Freshfields, English solicitors to the Company, in the form set forth
in Annex IV hereto, subject to modifications to which the
Underwriters do not reasonably object.
(4) If an ADR depository is used in conjunction with the
offering of the Designated Securities, the opinion, dated as of the
Time of Delivery, of Xxxxxx, Xxxxxx & Xxxxxx, counsel to the ADR
Depositary, in the form set forth in Annex V hereto, subject to
modifications to which the Underwriters do not reasonably object.
(5) The opinion, dated as of the Time of Delivery, of Sidley
Xxxxxx Xxxxx & Xxxx, a multinational partnership, counsel for the
Underwriters, with respect to the matters set forth in Annex VI.
(c) At the Time of Delivery (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 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 Executive Director of the
Company, dated as of the Time of Delivery, to the effect that (i) the
representations and warranties in Section 2 hereof are true and correct in
all material respects as though expressly made at and as of the Time of
Delivery; (ii) the Company has complied with all agreements hereunder and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Time of Delivery; 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.
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to the Designated Securities and at the Time of Delivery for such
Designated Securities, Deloitte & Touche, 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 shall have furnished to the Representatives a letter, dated the
effective date of the Registration Statement or the date of the most
recent report filed with the Commission containing financial statements
and incorporated by reference in the Registration Statement, if the date
of such report is later than such effective date, and a letter dated such
Time of Delivery, respectively, to the effect set forth in Annex VII
hereto, and with respect to such letter dated such Time of Delivery, as to
such other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(e) If required pursuant to the Pricing Agreement, the Designated
Securities shall have been duly authorized for listing by the New York
Stock Exchange, Inc., the London Stock Exchange and/or the Luxembourg
Stock Exchange.
If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice
11
to the Company at any time at or prior to the Time of Delivery, and such
termination shall be without liability of any party to any other party except
as provided in Section 6 hereof. Notwithstanding any such termination, the
provisions of Sections 8 and 10 herein shall remain in effect.
8. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, 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 1933 Act
Regulations, if applicable, 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 any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) 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, claim, 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 incurred
(including, subject to Section 8(c) hereof, the fees and
disbursements of counsel chosen by the Representatives),
reasonably incurred 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 8(a) to the extent that such
indemnification is not permissible pursuant to Section 151 of
the Companies Xxx 0000 of Great Britain -- include only if
Designated Securities are Preference Shares or are convertible
or exchangeable for Preference Shares] and that this indemnity
agreement shall not apply to (A) any loss, liability, claim,
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 thereto), the ADR Registration Statement, if
any (or any amendment thereto) or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or (B)
any loss,
12
liability, claim, damage or expense to the extent arising out of
an untrue statement or omission or alleged untrue statement or
omission of a material fact in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) delivered to
any person if such untrue statement or omission was corrected in
any subsequent preliminary prospectus, the Prospectus or any
amendment or supplement thereto, if copies thereof were
delivered to such Underwriter and a copy thereof was not
furnished to such person prior to the confirmation of the sale
of Securities to such person.
(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 1933 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section 8 as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), the ADR Registration
Statement, if any (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly for use
in the Registration Statement (or any amendment thereto), the ADR
Registration Statement (or any amendment thereto), or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(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 which it may have otherwise than on
account of this indemnity agreement. 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.
(d) If the indemnification provided for in this Section 8 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 Designated Securities on the
other from the offering of the Designated 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
13
also the relative fault of the Company on the one hand and the
Underwriters of the Designated 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) 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 applicable Designated
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) to the extent such contribution payment is not permissible
pursuant to Section 151 of the Companies Xxx 0000 of Great Britain --
include only if Designated Securities are Preference Shares or are
convertible or exchangeable for Preference Shares]. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated 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 8 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 1933 Act;
and the obligations of the Underwriters under this Section 8 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 0000 Xxx.
9. If one or more of the Underwriters shall fail at the Time of
Delivery to purchase the Designated Securities which it or they are obligated
to purchase under this
14
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
Designated Securities which the Underwriters are obligated to purchase at
the Time of Delivery, 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 Designated Securities bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Designated Securities which the Underwriters are obligated to purchase at
the Time of Delivery, the Pricing Agreement relating to such Designated
Securities shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 9 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 Time of Delivery for a period
not exceeding seven days in order to effect any required changes in the
Registration Statement, the ADR Registration Statement, if any, or Prospectus
or in any other documents or arrangements.
10. 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.
11. (a) The Representatives may terminate this Agreement, immediately
upon notice to the Company, at any time prior to the Time of Delivery (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, if any, 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 or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the
reasonable judgment of the Representatives (after consultation with the
Company), impracticable to market the Designated Securities or enforce
contracts for the sale of the Designated Securities, or (iii) if there has
occurred a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or the American Stock Exchange,
or (iv) if there has occurred a material adverse change in the financial
markets in the United States or in the international financial markets, or
(v) if a banking moratorium has been declared by the relevant authorities
15
in New York or London, or (vi) any rating of any of the Company's debt
securities, preference shares, American depositary shares representing
preference shares or American depositary receipts evidencing American
depositary shares representing preference shares shall have been lowered
by Xxxxx'x Investor Services or Standard and Poor's Corporation.
(b) If this Agreement is terminated pursuant to this Section 11 or
pursuant to Section 9 hereof, such termination shall be without liability
of any party to any other party except as provided in Section 6 or Section
9 hereof. Notwithstanding any such termination, the provisions of Sections
8, 10 and 14 shall remain in effect.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated 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 8(c) 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.
13. 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 their respective
successors and the controlling persons and officers, directors and authorized
representative of the Company referred to in Section 8 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
Designated Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
14. (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
16
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
CT Corporation System with offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and its properties, assets and
revenues, service 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 14 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 14 (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 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.
15. (a) Each Underwriter severally represents and agrees that it has
not offered or sold and, prior to the expiry of the period of six months
from the Time of Delivery for each particular issue of Securities, in
respect of such Securities it will not offer or sell such Securities or
any investments representing such Securities (including ADSs or ADRs) to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of their businesses or otherwise
in circumstances which have not resulted and will not result in an offer
to the public in
17
the United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995.
(b) Each Underwriter further severally represents and agrees that it
has complied and will comply with all applicable provisions of the
Financial Services Xxx 0000 (the "Act") (and, after they come into force,
all applicable provisions of the Financial Services and Markets Act 2000
(the "FSMA")) with respect to anything done by it in relation to the
Securities or any investments representing the Securities (including ADSs
or ADRs) in, from or otherwise involving, the United Kingdom.
(c) Each Underwriter also severally represents and agrees that (i) it
has only issued or passed on and will only issue or pass on in the United
Kingdom before the repeal of Section 57 of the Act any document received
by it in connection with the issue of the Securities or any investments
representing the Securities (including ADSs or ADRs)(including without
limitation the Registration Statement, the Prospectus, any preliminary
prospectus, any ADR Registration Statement or any ADR Prospectus) to a
person who is of a kind described in Article 11(3) of the Financial
Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or
is a person to whom such document may otherwise lawfully be issued or
passed on; and (ii) after the repeal of Section 57 of the Act, it will
have 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
FSMA) received by it in connection with the issue or sale of such
Securities or any investments representing the securities (including ADSs
or ADRs) (including without limitation the registration statement, the
prospectus, any preliminary prospectus, any ADR registration statement or
any ADR prospectus) in circumstances in which Section 21(1) of the FSMA
does not apply to the Company.
(d) No action has or will be taken by the Company in any jurisdiction
(other than the United States) that would permit a public offering of the
Securities or any investments representing the Securities (including ADSs
or ADRs) or possession or distribution of any registration statement,
preliminary prospectus or prospectus or any amendment or supplement
thereto or any other offering material relating to the Securities or any
investments representing the Securities (including ADSs or ADRs) in any
country or jurisdiction (other than the United States) where action for
that purpose is required. Each Underwriter represents and agrees that it
has complied and will comply with all applicable laws and regulations in
each jurisdiction in which it acquires, offers, sells or delivers
Securities or any investments representing Securities (including ADSs or
ADRs) or has in its possession or distributes any registration statement,
prospectus or any amendment or supplement thereto or any such other
material, in each case at its own expense.
16. 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.
17. 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 conflicts of laws provisions thereof. Specified times of day refer
to New York City time.
18
18. 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.
19
If the foregoing is in accordance with your understanding, please sign
and return to us [ ] counterparts hereof.
Very truly yours,
THE ROYAL BANK OF SCOTLAND GROUP plc
By:
---------------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representative]
By:
---------------------------------
20
ANNEX I
Pricing Agreement
[Names of Representative(s)]
As Representatives of the several
Underwriters names in Schedule I hereto,
c/o
_________ __, 20__
Ladies and Gentlemen:
The Royal Bank of Scotland Group plc, a public limited company organized
under the laws of Great Britain and registered in Scotland (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ___________ __, 20__ (the "Underwriting
Agreement"), between the Company on the one hand and (names of Representatives
named therein) 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 "Designated 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 Prospectus in Section 2 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 Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing Agreement
in relation to the Prospectus as amended or supplemented relating to the
Designated 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 Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
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 Designated 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
21
purchase price to the Underwriters set forth in Schedule II hereto, the
[principal amount/liquidation preference] of Designated 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 [ ] 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.
Very truly yours,
THE ROYAL BANK OF SCOTLAND GROUP plc
By:
---------------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Representatives]
By:
---------------------------------
On behalf of each of the Underwriters
22
SCHEDULE I
[Principal Amount/
Liquidation Preference]
of Designated Securities
Underwriter to be Purchased
----------- ------------------------
[Name(s) of Representative(s)] ...................
[Names of other Underwriters] ....................
-------------
Total ............................................ $
============
23
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due,
[Non-Cumulative Dollar Preference Shares, Series __]
Aggregate principal amount/aggregate liquidation preference:
[$ ]
Price to Public:
[ % of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to ] [$25 per Preference Share]
Purchase Price by Underwriters:
% of the [principal amount/liquidation preference] of the Designated
Securities, plus accrued interest from to [and accrued
amortization[, if any,] from to ]
Form of Designated Securities:
[Definitive form, to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
Specified funds for payment of purchase price:
Wire transfer of same day value funds
Time of Delivery:
a.m. (New York City time), , 20
Indenture:
Indenture dated , 20 , between the Company and ,
as Trustee
Maturity:
Interest/Dividend Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest/Dividend Payment Dates:
24
[months and dates, commencing ....................., 20..]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning ,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at
the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$ ] principal amount of Designated Securities
on in each of the years through at 100% of their principal
amount plus accrued interest[, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$ ] principal amount of Designated Securities in
the years through at 100% of their principal amount plus
accrued interest.]
[If Designated Securities are extendable debt securities,
insert--
Extendable provisions:
Designated Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with
accrued interest. The initial annual interest rate will be %, and
thereafter the annual interest rate will be adjusted on , and to
a rate not less than % of the effective annual interest rate on
25
U.S. Treasury obligations with -year maturities as of the [insert date
15 days prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through [and thereafter
will be adjusted [monthly] [on each , , and ] [to an annual rate
of % above the average rate for -year [month][securities][certificates
of deposit] issued by
and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest yield
equivalent of the weekly average per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the excess, if any, of
(i) the then current weekly average per annum secondary market yield for
-month certificates of deposit over (ii) the then current interest
yield equivalent of the weekly average per annum market discount rate
for -month Treasury bills); [from and thereafter the rate will
be the then current interest yield equivalent plus % of Interest
Differential].]
Defeasance provisions:
Conversion price:
Votes per Preference Share:
Closing location for delivery of Designated Securities:
Additional Closing Conditions:
Section 7 of the Underwriting Agreement should be modified in the event
that the Securities are denominated in, indexed to, or principal or
interest are paid in, a currency other than the U.S. dollar, more than one
currency or in a composite currency. The country or countries issuing such
currency should be added to the banking moratorium and hostilities clauses
and the following additional clause should be added to the paragraph (the
entire paragraph should be restated, as amended):
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing
such currency, currencies or composite currency]".
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
26
ANNEX II
[Form of opinion of Xxxxx Xxxx & Xxxxxxxx,
United States counsel for the Company]
(i) Assuming the ADR Deposit Agreement/Calculation Agency Agreement, if
applicable, has been duly authorized, executed and delivered by the Company
pursuant to Scots law, and assuming due authorization and execution by the ADR
Depositary/Calculation Agent, the ADR Deposit Agreement/Calculation Agency
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.
(ii) The Registration Statement has been declared effective under the 1933
Act.
(iii) Such counsel is of the opinion that the Registration Statement, the
ADR Registration Statement, if any, the Prospectus and the ADR Prospectus, if
any, and any supplements or amendments thereto (except for financial statements
and other financial data included or incorporated by reference therein and the
Form T-1 as to which such counsel need not express any opinion) appear on their
face to be appropriately responsive in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations.
(iv) Each of the Indenture, the Calculation Agency Agreement and the
Designated Securities conform, and, assuming the ADRs, if any, are issued in
conformity with the ADR Deposit Agreement, the ADRs when issued will conform,
in all material respects as to legal matters to the description thereof
contained in the Prospectus.
(v) Assuming the Indenture and the Designated Securities have been duly
authorized, executed and delivered by the Company pursuant to Scots law, and
assuming due authorization, execution and delivery of the Indenture by the
Trustee and due authentication of the Designated Securities by the Trustee, the
Indenture has been duly authorized, executed and delivered by the Company and
duly qualified under the Trust Indenture Act of 1939, and the Designated
Securities have been duly executed, authenticated and delivered; and the
Indenture constitutes, and, upon payment therefor in accordance with the terms
of the Underwriting Agreement and the Pricing Agreement, the Designated
Securities will constitute, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
[(vi) Assuming the effectiveness of the ADR Registration Statement, upon
due issuance by the ADR Depositary of the ADRs evidencing the ADSs against the
deposit of 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.]
27
(vii) No registration of the Company under the Investment Company Act of
1940, as amended (the "1940 Act"), is required in connection with the issuance
and delivery of the Designated Securities or the sale of the Securities in the
United States.
(viii) The discussion in the Prospectus under the caption "Certain US
Federal and UK Tax Consequences", insofar as such discussion affects the US
Holders (as defined therein) described therein, summarizes the material US
Federal tax consequences to such US Holders of holding Designated Securities,
Preference Shares or ADSs.
(ix) No consent, approval, authorization, or order of, or any
qualification with, any governmental authority or agency under United States
federal or the New York State law that in our experience is normally applicable
to general business corporations in relation to transactions of the type
contemplated by this Agreement is required in connection with the sale of the
Designated Securities to the Underwriters, or for the consummation of the
transactions contemplated by this 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 Designated Securities.
In giving the opinion required hereby Xxxxx Xxxx & Xxxxxxxx shall
additionally state that nothing has come to their attention that has caused
them to believe that (except for financial statements and other financial and
statistical data and the Form T-1 as to which such counsel need not express any
belief) the Registration Statement, at the time it became effective (after
giving effect to the undertaking contained in the Registration Statement
pursuant to Item 512(i) of Regulation S-K of the 1933 Act Regulations),
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 or that the Prospectus as of its date and, as amended or
supplemented, if applicable, as of the date of such opinion, included an 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 circumstances under which
they were made, not misleading. With respect to the opinions in (iv) above and
the belief expressed in this paragraph such counsel may also make a statement
substantially to the effect that they have not themselves checked the accuracy
or completeness of, or otherwise verified, the information furnished with
respect to the Registration Statement or the Prospectus but have generally
reviewed and discussed with certain officers and employees of, and solicitors
and independent accountants for, the Company and with representatives of the
Representatives and counsel for the Underwriters the information furnished,
whether or not subject to such counsel's check and verification, and that such
opinion or belief is on the basis of such consideration, review and discussion
but without independent check and verification, except as stated. Such counsel
may state that they have assumed that any document referred to in their opinion
and authorized, executed and delivered pursuant to English or Scottish law was
duly authorized, executed and delivered under such law and, if applicable,
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms, under such law, and may acknowledge receipt by the
Company of opinions as to matters of English and Scottish law from Freshfields
Bruckhaus Xxxxxxxx and Dundas & Xxxxxx, X.X., respectively, delivered pursuant
to Section 7(b)(2) and 7(b)(3) of the Underwriting Agreement upon which it
understands the Company intends to rely. Such counsel may also state that their
opinions are confined to matters of the laws of the United States of America
and the State of New York, and that such counsel expresses no opinion or belief
as to the statements of English or Scottish law contained in the Registration
Statement or Prospectus.
28
ANNEX III
[Form of opinion of Dundas & Xxxxxx, X.X., Scottish solicitors to the Company]
(i) The Company and the Bank have been duly incorporated in Great Britain
as limited liability companies and are validly registered under the law of
Scotland, are not in liquidation, and have the corporate power and authority
under such law to conduct their respective businesses as described in the
Prospectus.
[(ii) The Designated Securities (in global or definitive form) (when
executed by the Company in accordance with the Indenture) will have been duly
executed by or on behalf of the Company and (upon their issue, authentication
and delivery in accordance with the terms of the Underwriting Agreement, the
Pricing Agreement and the Indenture) will have been duly delivered.]
[(iii) Assuming that, at the time of issue, the Board of Directors of the
Company are duly authorized to allot the Preference Shares under Section 80 of
the Companies Xxx 0000, the Preference Shares, when allotted and issued upon
exchange by conversion for the Securities in accordance with the terms of the
Securities and the Indenture, (A) will be validly authorized and issued and
will be fully paid and not subject to any calls for further funds (and a holder
thereof will not be subject to personal liability in respect of the debts and
obligations of the Company or any creditors thereof by reason only of being
such a holder), and (B) the issuance of the Preference Shares will not be
subject to the preemptive rights of any shareholder of the Company.]
[(iv) Assuming that, at the time of any issue of the Ordinary Shares by
the Company to satisfy interest payments in respect of the Designated
Securities, there is sufficient authorised but unissued share capital, the
Board of Directors of the Company are duly authorised to allot the Ordinary
Shares under Section 80 of the Companies Xxx 0000, and duly empowered under
Section 95 of the Companies Xxx 0000 to allot the Ordinary Shares on a
non-pre-emptive basis, and a resolution to allot the Ordinary Shares is duly
passed at a properly convened meeting of duly appointed Directors of the
Company at which a quorum is present throughout, such Ordinary Shares when
allotted and issued (a) will be validly authorised and issued and will be fully
paid and not subject to any calls for further funds (and a holder thereof will
not be subject to personal liability in respect of the debts and obligations of
the Company or any creditors thereof by reason only of being such a holder) and
(b) will not be subject to the pre-emptive rights of any shareholders of the
Company.]
[(v) Upon allotment and issuance of the Preference Shares in accordance
with the Underwriting Agreement and the Pricing Agreement, the Preference
Shares will be convertible at the option of the holder thereof for Ordinary
Shares in accordance with and subject to the terms of the Preference Shares,
unless earlier redeemed by the Company; assuming that, at the time of issue of
the Ordinary Shares, there is sufficient authorised but unissued share capital,
the Board of Directors of the Company are duly authorised to allot the Ordinary
Shares under Section 80 of the Companies Xxx 0000, and duly empowered under
Section 95 of the Companies Xxx 0000 to allot the Ordinary Shares on a
non-pre-emptive basis, and a resolution to allot the Ordinary Shares is duly
passed at a properly convened
29
meeting of duly appointed Directors of the Company at which a quorum is present
throughout, Ordinary Shares when allotted and issued upon conversion of the
Preference Shares in accordance with the terms of the Preference Shares (a)
will be validly authorised and issued and will be fully paid and not subject to
any calls for further funds (and a holder thereof will not be subject to
personal liability in respect of the debts and obligations of the Company or
any creditors thereof by reason only of being such a holder), (b) the issue of
the Ordinary Shares will not be subject to the pre-emptive rights of any
shareholders of the Company and (c) except as described in the Prospectus under
the heading "Description of Our Ordinary Share Capital" there are no
restrictions upon the rights of the holder of Ordinary Shares to hold, vote or
transfer such Ordinary Shares.]
[(vi) The statements made in the Prospectus under the caption "Description
of Dollar Preference Shares]", if any, insofar as such statements constitute a
summary of certain of the rights and privileges of the holders of the Dollar
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.]
(vii) The execution, delivery and performance by the Company of the
Underwriting Agreement and the Pricing Agreement is within the corporate power
of the Company and has been duly authorized by all necessary corporate action
on the part of the Company and each of such agreements has been duly executed
and delivered by the Company.
(viii) The creation and issue of the Designated Securities and the
execution, delivery and performance by the Company of the Indenture [, the
Calculation Agency Agreement, the Deposit Agreement and the Security Deposit
Agreement], is within the corporate power of the Company and has been duly
authorized by all necessary corporate action on the part of the Company and has
been duly executed and delivered by the Company; assuming inter alia due
authorization and execution of the Indenture by the Trustee [and due
authorization and execution of the Deposit Agreement by the ADR Depositary and
the Calculation Agency Agreement by the Calculation Agent], the obligations on
the part of the Company under the Indenture [, the Calculation Agency Agreement
and the ADR Deposit Agreement] are valid and legally binding against the
Company, 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.
(ix) No authorizations, approvals, consents or licenses of any
governmental, judicial or public bodies or authorities of or in Scotland
(except such authorizations, approvals, licenses or consents as may be required
under statutory provisions or regulations applying in Great Britain as a whole,
other than under the Companies Xxx 0000 as it applies to a company having its
registered office in Scotland) are required for the valid creation, allotment,
issuance and delivery of the Designated Securities.
(x) Neither the execution, delivery and performance of the Underwriting
Agreement, the Pricing Agreement, the Indenture, [the Calculation Agency
Agreement, the ADR Deposit Agreement and the Security Deposit Agreement], nor
the creation, allotment and issuance of the Designated Securities, will of
itself result in any violation in any material respect of (A) the memorandum or
articles of association of the Company or the Bank, (B) any existing applicable
mandatory provision of Scots law or regulation, (C) any judgment, order or
decree of any Scottish court, or (D) ) the terms of the Voting Agreement
between the
30
Company and Banco de Santander Central Hispano, SA (successor by merger to
Banco de Santander, SA) dated 3 October 1988.
(xi) The Underwriters would under current practice of the Scottish courts
(assuming the effect of Section 14 of the Underwriting Agreement is not to
prorogate the exclusive jurisdiction of 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 Pricing 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 and the Pricing
Agreement would be upheld as a valid choice of law by that Court.
(xii) The Underwriting Agreement, the Pricing Agreement, the Indenture
[the Calculation Agency Agreement, the ADR Deposit Agreement and the Security
Deposit Agreement] have, insofar as Scots law governs the formalities of
execution and delivery thereof, been duly executed by or on behalf of the
Company.
(xiii) The submission by the Company in Section 14 of the Underwriting
Agreement to the jurisdiction of the courts of or in New York, and the
designation, appointment and empowerment by the Company under the said Section
14 of an agent for service, would be upheld by the Scottish Courts as valid and
effective.
(xiv) In relation to any 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 recognised in Scotland
through an action of decree-conform under common law in the Court of Session in
Scotland, assuming that (1) the court which issued the judgement had
jurisdiction and acted judicially with no element of unfairness, (2) such
judgement 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 (3) enforcement of the judgement is not
contrary to Scottish public policy.
31
ANNEX IV
[Form of opinion of Freshfields Bruckhaus Xxxxxxxx,
English solicitors to the Company]
(a) no consents, approvals or authorisations of any regulatory authority,
government department or court in England or under legislation of general
application in the United Kingdom (other than any consents, approvals or
authorisations 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) are required:
(i) for the valid creation, issue and delivery of the Designated
Securities to, or at the direction of, the Underwriters; or
(ii) to enable the Company to make any payment to the Holders (as
such term is defined in the Indenture) of Designated Securities [, or any
payment on the Preference Shares] including any payment on a return of
capital on a winding up of the Company to the Holders of the Designated
Securities in United States dollars [except for the approval of The
Financial Services Authority in the circumstances detailed in the terms
and conditions of the Designated Securities set out in the Prospectus and
the Prospectus Supplement;]
(b) no filing or registration of the Registration Statement[, ADR
Registration Statement], preliminary prospectus, Prospectus, prospectus
supplement, Listing Particulars, 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 Designated Securities or the sale of the Designated Securities to the
Underwriters;
(c) the statements in the Prospectus Supplement under the heading "Certain
US Federal and UK Tax Consequences" so far as such statements relate to United
Kingdom tax matters currently applicable, accurately summarise those matters;
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;
(d) no stamp duty, capital duty, registration or other issue or
documentary taxes are payable in the United Kingdom on the creation, issue or
delivery by the Company of the Designated Securities, the deposit with The
Depository Trust Company of the Global Security, [the deposit with the ADR
Depositary of the Preference Shares, (to be represented by ADSs),] the
execution and delivery of the Underwriting Agreement, [the Calculation Agency
Agreement,] [the ADR Deposit Agreement, the Security Deposit Agreement,] [the
Indenture, the Supplemental Indenture] or the Pricing 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;
32
(f) the execution and delivery of the Pricing Agreement, the Underwriting
Agreement[,] [and] [the Indenture, the Supplemental Indenture,] [the ADR
Deposit Agreement and the Security Deposit Agreement,] [[and] the Calculation
Agency Agreement] by the Company did not of itself contravene on the date of
execution and delivery thereof, and the compliance by the Company with its
obligations under the Pricing Agreement, the Underwriting Agreement[,] [and]
[the Indenture, the Supplemental Indenture,] [the ADR Deposit Agreement and the
Security Deposit Agreement,] [[and] the Calculation Agency Agreement], will not
of itself contravene, any covenant binding on the Company contained in any of
the following documents:
(i) Trust Deed dated 2 May 1985 between the Company and The Law
Debenture Trust Corporation p.l.c. constituting(pound)200,000,000 floating
rate notes 2005;
(ii) Trust Deed dated 11 December 1985 between the Company and The
Law Debenture Trust Corporation p.l.c. constituting US$350,000,000 undated
floating rate primary capital notes;
(iii) Trust Deed dated 24 August 1989 between the Company and The Law
Debenture Trust Corporation p.l.c. constituting US$400,000,000 undated
floating rate primary capital notes;
(iv) First Supplemental Trust Deed dated 1 March 1993 between the
Bank, the Company and The Law Debenture Trust Corporation p.l.c.
constituting(pound)150,000,000 10 1/2% subordinated bonds 2013;
(v) Second Supplemental Trust Deed dated 12 August 1993 between the
Bank, the Company and The Law Debenture Trust Corporation p.l.c.
constituting(pound)200,000,000 9 1/2% undated subordinated bonds.
(g) the execution and delivery of Pricing Agreement, the Underwriting
Agreement[,] [and] [the Indenture, the Supplemental Indenture,] [the ADR
Deposit Agreement and the Security Deposit Agreement,] [[and] the Calculation
Agency Agreement] by the Company did not of itself breach on the date of
execution and delivery thereof, and the compliance by the Company with its
obligations in respect of Pricing Agreement, the Underwriting Agreement[,]
[and] [the Indenture, the Supplemental Indenture,] [the ADR Deposit Agreement
and the Security Deposit Agreement,] [[and] the Calculation Agency Agreement],
will not of itself breach, any mandatory provision of English law of general
application binding on the Company; and
(h) [The description of the subordination provisions of the Designated
Securities in the Prospectus and prospectus supplement is accurate in all
material respects; 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.]
For the purposes of the opinion contained in paragraphs (f) and (g) we
have interpreted the effect of the Pricing Agreement, the Underwriting
Agreement, the Indenture, the Supplemental Indenture and the Calculation Agency
Agreement as if they were governed by and construed in accordance with English
law. Such opinion should not be taken as
33
expressing an opinion as to the observance of any financial or similar covenant
contained in the documents listed above.
34
ANNEX V
[Form of opinion of Xxxxxx, Xxxxxx & Xxxxxx, counsel for the ADR Depositary]
[(i) The ADR Deposit Agreement, if any, has been duly authorized, executed
and delivered by the ADR Depositary and, assuming it has been duly authorized,
executed and delivered by the Company, the ADR Deposit Agreement constitutes a
valid and legally binding obligation of the ADR Depositary, enforceable against
the ADR Depositary 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.]
[(ii) Upon due issuance by the ADR Depositary of the ADRs representing the
ADSs against deposit of Preference Shares, if any, in accordance with 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.]
35
ANNEX VI
[Form of opinion of Sidley Xxxxxx Xxxxx & Xxxx, counsel for the Underwriters]
[(i) Assuming the ADR Deposit Agreement, if applicable, has been duly
authorized, executed and delivered by the Company and, assuming due
authorization and execution by the ADR Depositary, the ADR Deposit Agreement
constitutes a valid and binding obligation of the Company enforceable against
the Company 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.]
(ii) The Registration Statement has been declared effective under the 1933
Act.
(iii) Such counsel is of the opinion that the Registration Statement, the
ADR Registration Statement, if any, the Prospectus and the ADR Prospectus, if
any, and any supplements or amendments thereto (except for financial statements
and other financial [and statistical] data as to which such counsel need not
express any opinion) appear on their face to be appropriately responsive in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations.
(iv) Each of the Indenture, the Calculation Agency Agreement and the
Securities conform, and, assuming the ADRs, if any, are issued in conformity
with the Deposit Agreement, the ADRs when issued will conform, in all material
respects as to legal matters to the description thereof contained in the
Prospectus.
(v) Assuming the Indenture, the Calculation Agency Agreement and the
Designated Securities have been duly authorized, executed and delivered by the
Company pursuant to Scots law, and assuming due authorization, execution and
delivery of the Indenture by the Trustee and due authorization, execution and
delivery of the Calculation Agency Agreement by the Calculation Agent and due
authentication of the Designated Securities by the Trustee, the Indenture has
been duly authorized, executed and delivered by the Company and duly qualified
under the Trust Indenture Act of 1939, and the Designated Securities have been
duly executed, authenticated and delivered; and each of the Indenture and the
Calculation Agency Agreement constitutes, and, upon payment therefor in
accordance with the terms of the Underwriting Agreement and the Pricing
Agreement, the Designated Securities will constitute, valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
[(vi) Assuming the effectiveness of the ADR Registration Statement, upon
due issuance by the ADR Depositary of the ADRs evidencing the ADSs against the
deposit of 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.]
36
In giving the opinion required hereby, Sidley Xxxxxx Xxxxx & Xxxx shall
additionally state that nothing has come to their attention that has caused
them to believe that (except for financial statements and other financial and
statistical data and the Form T-1 as to which such counsel need not express any
belief) the Registration Statement, at the time it became effective (after
giving effect to the undertaking contained in the Registration Statement
pursuant to Item 512(i) of Regulation S-K of the 1933 Act Regulations),
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 or that the Prospectus as of its date and, as amended or
supplemented, if applicable, as of the date of such opinion, included an 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 circumstances under which
they were made, not misleading. With respect to the opinions in (iv) above and
the belief expressed in this paragraph such counsel may also make a statement
substantially to the effect that they have not themselves checked the accuracy
or completeness of, or otherwise verified, the information furnished with
respect to the Registration Statement or the Prospectus but have generally
reviewed and discussed with certain officers and employees of, and solicitors
and independent accountants for, the Company and with representatives of the
Representatives and counsel for the Underwriters the information furnished,
whether or not subject to such counsel's check and verification, and that such
opinion or belief is on the basis of such consideration, review and discussion
but without independent check and verification, except as stated. Such counsel
may state that they have assumed that any document referred to in their opinion
and authorized, executed and delivered pursuant to English or Scottish law was
duly authorized, executed and delivered under such law and, if applicable,
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms, under such law, and may rely as to all matters of
English and Scottish law upon the opinions of Freshfields Bruckhaus Xxxxxxxx
and Dundas & Xxxxxx, X.X., respectively, delivered pursuant to Section 7(b)(2)
and 7(b)(3) of the Underwriting Agreement. Such counsel may also state that
their opinions are confined to matters of the laws of the United States of
America and the State of New York, and that such counsel expresses no opinion
or belief as to the statements of English or Scottish law contained in the
Registration Statement or Prospectus.
Very truly yours,
37
ANNEX VII
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) they are independent chartered accountants with respect to the Company
and its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations; (ii) it is their opinion that the financial statements of the
Company included or incorporated by reference in the Registration Statement and
covered by their opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations for foreign private issuers; (iii) based upon limited procedures
set forth in detail in such letter, nothing has come to their attention which
causes them to believe that a specified date not more than three business days
prior to the date of the Pricing Agreement, there was any change in the issued
share capital, loan capital or perpetual capital notes or any decrease in
consolidated shareholders' equity as compared with the amounts shown in the
most recent balance sheet included or incorporated by reference in the
Registration Statement, or during the period from the date of such most recent
balance sheet to a specified date not more than three days prior to the date of
the Pricing Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated net interest income
or other operating income or in the total or per-share amounts of consolidated
income before exceptional items and income taxes of the Company and its
subsidiaries, except in all cases for changes, increases or decreases which the
Registration Statement or Prospectus disclose have occurred or may occur; and
(iv) in addition to the examination referred to in their opinions and the
limited procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus and
which are specified by the Representatives, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter.
All references in this Annex VII to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
38
