6-K
UBS AG (AMUB)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
of the Securities Exchange Act of 1934
Date: September 11, 2023
| Commission File Number 1-15060 |
|---|
UBS AG
(Registrant’s Name)
Bahnhofstrasse 45, 8001 Zurich, Switzerland
Aeschenvorstadt 1, 4051 Basel, Switzerland
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F x Form 40-F ¨
THIS REPORT ON FORM 6-K SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THE REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333-263376) OF UBS AG AND TO BE A PART THEREOF FROM THE DATE ON WHICH THIS REPORT IS FURNISHED, TO THE EXTENT NOT SUPERSEDED BY DOCUMENTS OR REPORTS SUBSEQUENTLY FILED OR FURNISHED.
This Report contains the following:
Exhibit No.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| UBS AG | |
|---|---|
| By: | /s/ Kevin Tillotson |
| Name: Kevin Tillotson<br><br> <br>Title: Executive Director | |
| By: | /s/ Daniel Taylor |
| Name: Daniel Taylor<br><br> <br>Title: Associate Director |
Dated: September 11, 2023
Exhibit 1.1
UBS AG, acting through its London branch
$1,000,000,000 5.800% Fixed Rate Senior Notes due 2025
$1,500,000,000 5.650% Fixed Rate Senior Notes due 2028
$500,000,000 Floating Rate Senior Notes due 2025
UNDERWRITING AGREEMENT
__________________
September 5, 2023
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
As Representative of the several
Underwriters named in Schedule I hereto
Dear Ladies and Gentlemen:
UBS AG, a corporation organized under the laws of Switzerland (the “Company”), acting through its London branch, proposes to issue and sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom you are acting as representative (the “Representative”) $1,000,000,000 aggregate principal amount of 5.800% Fixed Rate Senior Notes due 2025 (the “2025 Notes”), $1,500,000,000 aggregate principal amount of 5.650% Fixed Rate Senior Notes due 2028 (the “2028 Notes”) and $500,000,000 aggregate principal amount of Floating Rate Senior Notes due 2025 (the “Floating Rate Notes,” and together with the 2025 Notes and the 2028 Notes, the “Securities”). The Securities are to be issued pursuant to the provisions of an Indenture, dated as of June 12, 2015 (the “Base Indenture”), between the Company, acting through its London branch, and U.S. Bank Trust National Association, as trustee (the “Trustee”), as supplemented by (i) the Seventh Supplemental Indenture to be dated as of September 11, 2023 and entered into in connection with the 2025 Notes (the “Seventh Supplemental Indenture”), (ii) the Eighth Supplemental Indenture to be dated as of September 11, 2023 and entered into in connection with the 2028 Notes (the “Eighth Supplemental Indenture”) and (iii) the Ninth Supplemental Indenture to be dated as of September 11, 2023 and entered into in connection with the Floating Rate Notes (the “Ninth Supplemental Indenture,” and together with the Seventh Supplemental Indenture, the Eighth Supplemental Indenture and the Base Indenture, the “Indenture”).
1. Registration Statement and Prospectus. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form F-3 under the Securities Act of 1933, as amended (the “Securities Act”) in respect of the securities the Company may offer (as amended through the date of this Agreement, being herein referred to as the “Registration Statement”). Such Registration Statement has become effective. The Registration Statement contains a base prospectus in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement (the “Base Prospectus”), to be used in connection with the public offering and sale of the Securities. Any preliminary prospectus supplement to the Base Prospectus that describes the Securities and the offering thereof and is used prior to filing of the Prospectus is called, together with the Base Prospectus, a “preliminary prospectus.” The term “Prospectus” shall mean the final prospectus supplement relating to the Securities, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) under the Securities Act after the date and time that this Agreement is executed and delivered by the parties hereto but shall not include any free writing prospectus (as such term is used in Rule 405 under the Securities Act). Any reference to any preliminary prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act; any reference to any amendment or supplement to any preliminary prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such preliminary prospectus or the Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), and incorporated by reference in such preliminary prospectus or the Prospectus, as the case may be. The Company also has prepared and filed (or will file) with the Commission the Issuer Free Writing Prospectuses (as defined below) set forth in Schedule II hereto. All references in this Agreement to the Registration Statement, a preliminary prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).
2. Agreements to Sell and Purchase. On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company, acting through its London branch, agrees to issue and sell to the Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company, acting through its London branch, the principal amount of Securities set forth opposite the name of such Underwriter in Schedule I hereto, at a price (the “Purchase Price”) equal to (i) with respect to the 2025 Notes, 99.794% of the principal amount thereof, plus accrued interest thereon, if any, from September 11, 2023 to the date of payment and delivery, (ii) with respect to the 2028 Notes, 99.646% of the principal amount thereof, plus accrued interest thereon, if any, from September 11, 2023 to the date of payment and delivery and (iii) with respect to the Floating Rate Notes, 99.80% of the principal amount thereof, plus accrued interest thereon, if any, from September 11, 2023 to the date of payment and delivery.
3. Terms of Public Offering. The Company is advised by the Representative that the Underwriters propose (i) to make a public offering of their respective portions of the Securities as soon after the execution hereof as practicable and (ii) initially to offer the Securities upon the terms set forth in the Prospectus.
4. Delivery and Payment. The Company will deliver, or cause to be delivered, the Securities to the Representative for the account of each Underwriter free of payment by or on behalf of such Underwriter of the Purchase Price by wire transfer of immediately available funds to the account specified by the Company to the Representative at least twenty-four hours in advance, by causing the Trustee as registrar, to register the Securities in the name of Cede & Co., or such other nominee as The Depository Trust Company (“DTC”) may designate, and shall cause DTC to credit the Securities to the account of UBS Securities LLC at DTC. The time and date of such delivery and payment shall be 10:00 a.m., New York City time on September 11, 2023 (the “Closing Date”), or such other time and date as the Representative and the Company may agree upon in writing.
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5. Agreements of the Company. The Company agrees with the Underwriters:
(a) To file the Prospectus with the Commission pursuant to Rule 424(b) not later than the close of business of the Commission on the second business day following the execution and delivery of this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
(b) During the period beginning at the Time of Sale (as defined below) and ending on the later of the Closing Date or such date as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the Disclosure Package (as defined below) or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement.
(c) If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus as then amended and supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if in the judgment of the Company it shall be necessary to amend or supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Disclosure Package or the Prospectus, in order to comply with the Securities Act, the Exchange Act or the Trust Indenture Act, including in connection with the delivery of the Prospectus, the Company agrees to (i) notify the Representative of any such event or condition and (ii) promptly prepare (subject to paragraph (b) above), file with the Commission (and use its reasonable best efforts to have any amendment to the Registration Statement be declared effective) and furnish at its own expense (unless the amendment or supplement is necessary because of a statement made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representative expressly for use therein, in which case this shall be at the expense of the Underwriters) to the Underwriters and to dealers, amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the Prospectus as so amended or supplemented, in the light of the circumstances then prevailing or under which they were made, not misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended or supplemented, will comply with the Securities Act, the Exchange Act or the Trust Indenture Act.
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(d) The Company will prepare a final term sheet for the Securities containing only a description of the Securities, in a form approved by the Representative, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
(e) The Company represents that (other than the Final Term Sheet) it has not made, and agrees that, unless it obtains the prior written consent of the Representative, it will not make, any offer relating to the Securities that would constitute an “issuer free writing prospectus” as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representative shall be deemed to have been given in respect of any Issuer Free Writing Prospectus included in Schedule II hereto. Any such free writing prospectus consented to by the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied or will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of (i) any Issuer Free Writing Prospectus included in Schedule II hereto, or (ii) a free writing prospectus which contains only (x) information describing the preliminary terms of the Securities or their offering or (y) information that describes the final terms of the Securities or their offering and that is included in the Final Term Sheet.
(f) To advise the Representative promptly and, if requested by the Representative, to confirm such advice in writing, (i) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or the Disclosure Package or for additional information and (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of qualification of the Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for such purposes, or of any objection of the Commission of the use of the Registration Statement or any post-effective amendment thereto relating to the Securities.
(g) If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time.
(h) To furnish to each Underwriter, without charge, signed copies of the Registration Statement as first filed with the Commission and of each amendment to it, including all exhibits, and to furnish to each Underwriter such number of conformed copies of the Registration Statement as so filed and of each amendment to it, without exhibits, as such Underwriter may reasonably request.
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(i) During the Prospectus Delivery Period, to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(j) During the Prospectus Delivery Period, to furnish to each Underwriter and dealer as many copies of the Base Prospectus and the Prospectus (each as amended or supplemented) as such Underwriter or dealer may reasonably request.
(k) Prior to any public offering of the Securities, to use all reasonable efforts to cooperate with the Representative and counsel for the Underwriters in connection with the registration or qualification of the Securities for offer and sale by the several Underwriters and by dealers under the state securities or Blue Sky laws of such jurisdictions or foreign jurisdictions as the Representative may reasonably request, to continue such qualification in effect so long as required for distribution of the Securities and to file such consents to service of process or other documents as may be necessary in order to effect such registration or qualification, provided that in no event shall the Company be obligated to (i) qualify to do business in any jurisdiction where it is not so qualified, (ii) subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject or (iii) take any action that would subject it to service of process in suits other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(l) To make generally available to its security holders as soon as reasonably practicable, but in any event not later than 18 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement covering a period of at least twelve months after the effective date of the Registration Statement, which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(m) During the period beginning on the date hereof and continuing to and including the later of the Closing Date or the termination of the “restricted period”, as such term is defined under Regulation M relating to the Securities purchased hereunder, as notified to the Company by the Representative, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company substantially similar to the Securities, without the prior written consent of the Representative; provided, however, that any commercial paper issued by the Company in the ordinary course of business shall not be considered “substantially similar” to the Securities for purposes of this Section.
(n) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Prospectus.
(o) To take all reasonable action necessary to enable a “nationally recognized statistical rating organization”, as that term is defined by in Section 3(a)(62) the Exchange Act, to provide ratings for the Securities.
6. Representations and Warranties of the Company. The Company represents and warrants to each Underwriter on the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Closing Date, that:
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(a) The Company meets the requirements for use of Form F-3 under the Securities Act. The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and, to the best of the Company’s knowledge, no proceedings for such purpose are pending before or threatened by the Commission. No order preventing the use of any preliminary prospectus or any Issuer Free Writing Prospectus has been issued by the Commission.
(b) (i) At the respective times the Registration Statement and any post-effective amendment thereto became or becomes effective prior to the Closing Date, neither the Registration Statement nor such amendment included or will include an untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, as of the date such amendment becomes effective or such supplement is filed with the Commission, as the case may be, will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, as of the date such amendment becomes effective or such supplement is filed with the Commission, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph (b) do not apply to statements in or omissions from the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter expressly for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof and (iv) the documents incorporated by reference in the Prospectus pursuant to Item 6 of Form F-3 under the Securities Act, at the time they were or hereafter are filed with the Commission prior to the Closing Date, complied and will comply in all material respects with the requirements of the Exchange Act, and, when read together with the other information in the Prospectus, as of the date of the Prospectus and at all times subsequent thereto up to the Closing Date, did not and will not contain an untrue statement of a material fact or did not and will not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) The term “Disclosure Package” shall mean (i) the Base Prospectus, including the preliminary prospectus supplement dated September 5, 2023, as amended or supplemented at the Time of Sale (as defined below) and (ii)(1) with respect to the 2025 Notes, only the terms related to the 2025 Notes in the Issuer Free Writing Prospectus identified on Schedule II hereto, (2) with respect to the 2028 Notes, only the terms related to the 2028 Notes in the Issuer Free Writing Prospectus identified on Schedule II hereto and (3) with respect to the Floating Rate Notes, only the terms related to the Floating Rate Notes in the Issuer Free Writing Prospectus identified on Schedule II hereto. As of the Time of Sale, the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof. As used in this paragraph and elsewhere in this Agreement “Time of Sale” shall mean 3:45 p.m., New York City time, on September 5, 2023.
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(d) Each Issuer Free Writing Prospectus identified on Schedule II hereto does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(e) Each of the Company and each of its subsidiaries that is a “significant subsidiary” as defined in Rule 405 under the Securities Act (each a “Significant Subsidiary”) has been duly organized or incorporated under the laws of Switzerland or its respective jurisdiction of organization or incorporation, as the case may be, except to the extent that the failure to be duly organized or incorporated would not have a material adverse effect, in the context of the issue of the Securities, on the consolidated financial position and consolidated results of operations of the Company and its Significant Subsidiaries, taken as a whole (a “Material Adverse Effect”). Each of the Company and its Significant Subsidiaries is validly existing and, where such concept applies, is in good standing under the laws of its respective jurisdiction of organization or incorporation, is duly qualified to do business and in good standing in each other jurisdiction in which qualification is necessary for the ownership of its respective properties or for the conduct of its respective businesses, except in each case to the extent that the failure to be validly existing, qualified or in good standing would not have a Material Adverse Effect. The Company has the power and authority necessary to own or hold its properties, to conduct the businesses in which it is engaged, as described in the Registration Statement, the Disclosure Package and the Prospectus, and to enter into and perform its obligations under this Agreement, the Securities or the Indenture, except to the extent that the failure to have such power or authority or the failure to perform its obligations under this Agreement, the Securities or the Indenture would not have a Material Adverse Effect.
(f) The Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Underwriters against payment therefor as provided by this Agreement, will be entitled to the benefits of the Indenture, and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except to the extent that enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) (the “Bankruptcy Exceptions”).
(g) This Agreement has been duly authorized, executed and delivered by the Company. The Indenture has been duly qualified under the Trust Indenture Act, and the Base Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Bankruptcy Exceptions.
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(h) Each of the Seventh Supplemental Indenture, Eighth Supplement Indenture and Ninth Supplemental Indenture has been duly authorized by the Company and, at the Closing Date, will have been executed and delivered by the Company and, assuming due authorization, execution and delivery of each Supplemental Indenture by the Trustee, will at the Closing Date constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Bankruptcy Exceptions.
(i) The Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
(j) Neither the Company nor any of its Significant Subsidiaries is in violation of its respective constituent documents, charter or by-laws or in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness to the Company and its subsidiaries, taken as a whole, or in any other agreement, indenture or instrument to the conduct of the business of the Company and its subsidiaries, taken as a whole, to which the Company or any of its Significant Subsidiaries is a party or by which it or any of its Significant Subsidiaries or their respective property is bound, except for any such violation or default in the performance of an obligation, agreement, covenant or condition that would not have a Material Adverse Effect.
(k) The execution, delivery and performance of this Agreement, the Indenture and the Securities by the Company and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those that have been previously received from applicable governmental authorities and as such may be required under the securities or Blue Sky laws of the various states) and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the constituent documents, charter or by-laws of the Company or any of its Significant Subsidiaries or any material indenture, agreement, or other instrument to which it or any of its Significant Subsidiaries is a party or by which it or any of its Significant Subsidiaries or their respective property is bound, or violate or conflict with any laws, administrative regulations or rulings or court decrees applicable to the Company, any of its Significant Subsidiaries or their respective property, except for except for any such conflict, default, breach or violation which would not have (a) a material adverse effect on the transactions contemplated hereby or (b) a Material Adverse Effect.
(l) Except as otherwise set forth in the Disclosure Package and the Prospectus, there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending to which the Company or any Significant Subsidiary is a party or of which any property or assets of any of them is the subject that, if determined adversely to it, are likely, individually or in the aggregate, to have a Material Adverse Effect or could materially adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder, and, to the best of the knowledge of the Company, no such proceedings are threatened or contemplated. No contract or document of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement is not so described or filed as required.
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(m) Ernst & Young Ltd, who have certified certain financial statements of the Company and its subsidiaries, is an independent registered public accounting firm as required by the Securities Act and the rules and regulations of the Commission thereunder.
(n) Under the laws of Switzerland, the obligations of the Company under the Securities will rank pari passu without any preference among themselves. In the event of the Company’s winding-up or administration, the Securities will rank pari passu with all of the Company’s other outstanding unsecured and unsubordinated obligations, present and future, except such obligations as are preferred by operation of law.
(o) Under the laws of Switzerland, the Company has no right of immunity, on the grounds of sovereignty or otherwise.
(p) The statements set forth in the Disclosure Package and the Prospectus as amended or supplemented under the caption “Description of Debt Securities We May Offer,” as supplemented by the statements under the caption “Description of the Notes,” insofar as they purport to constitute a summary of the terms of the Securities, and under the captions “U.S. Tax Considerations,” “Tax Considerations under the Laws of Switzerland,” “U.K. Tax Considerations” and “Supplemental Plan of Distribution”, insofar as they purport to describe the provisions of the laws and documents referred to therein, are, in all material respects, accurate, complete and fair.
(q) The annual and interim consolidated financial statements of the Company and its consolidated subsidiaries, included or incorporated by reference in the Disclosure Package and the Prospectus (and any amendment or supplement thereto), present fairly in all material respects the consolidated financial position, results of operations and cash flows of the Company and its consolidated subsidiaries on the basis stated therein as of the dates indicated and the results of its operations for the periods specified; and such statements and related schedules and notes have been prepared in accordance with International Financial Reporting Standards applicable to the Company consistently applied throughout the periods involved, except as disclosed therein.
(r) Subsequent to the respective dates as of which information is given in the Registration Statement, the Disclosure Package and Prospectus, (i) there has not been any change in the share capital or long-term debt of the Company or any of its subsidiaries that is material to the consolidated financial position of the Company; and (ii) there has been no change, or, to the best of the knowledge of the Company, any development involving a prospective change, in or affecting the business, general affairs, management, consolidated financial position, consolidated shareholders’ equity or consolidated results of operations of the Company, except as set forth or contemplated in the Disclosure Package and the Prospectus that has had, or is likely to have, a Material Adverse Effect.
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(s) The Company is not, and will not be after giving effect to the consummation of the transactions contemplated by this Agreement, including the application of the net proceeds from the sale of the Securities, required to register as an “investment company” under the provisions of the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(t) The Company does not believe that it was a passive foreign investment company (“PFIC”) for U.S. federal income tax purposes for its most recent taxable year and does not expect to become a PFIC.
(u) All payments to be made under this Agreement to the Underwriters and payments of interest and principal in respect of the Securities are not subject under the laws of Switzerland or any political subdivision or taxing authority thereof or therein to any withholdings or similar charges or deductions.
(v) Any certificate signed by an officer of the Company or any of its subsidiaries (other than UBS Securities LLC acting in its capacity as Representative) and delivered to the Underwriters or to counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby on the date of such certificate.
7. Representations and Warranties of the Underwriters. Each Underwriter hereby represents and agrees that it has not and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act without the prior consent of the Company and UBS Securities LLC or as permitted in Section 5(e) above and that Schedule II hereto is a complete list of any free writing prospectuses for which the Underwriters have received such consent.
8. Indemnification. (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 Securities Act or Section 20 of the Exchange Act, as follows:
| (i) | against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of<br>any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, the Disclosure<br>Package or any Issuer Free Writing Prospectus (each as amended or supplemented if the Company shall have furnished any amendments or supplements<br>thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements<br>therein, in the light of the circumstances under which they were made, not misleading, |
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| (ii) | against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent<br>of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced<br>or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission;<br>and |
| --- | --- |
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| (iii) | against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen<br>by the Representative (subject to Section 8(c)), reasonably incurred in investigating, preparing or defending against any litigation,<br>or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any<br>such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under<br>(i) or (ii) above, |
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except, in each case, insofar as such loss, liability, claim, damage and expense arise out of or are based upon any such untrue statement or omission or alleged untrue statement or omission made in reliance upon information relating to any Underwriter furnished in writing to the Company by or on behalf of such Underwriter through the Representative expressly for use in the Registration Statement, the Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus (each as amended or supplemented, if applicable), or arises out or is based upon of any omission or alleged omission to state a material fact in Registration Statement, the Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus in connection with such information, which material fact was not contained in such information and which material fact was necessary to make such information not misleading, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b).
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors or executive board members and each of its officers who signs the Registration Statement and each person controlling the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all loss, liability, claim, damage and expense whatsoever as incurred, to the same extent as the foregoing indemnity from the Company to each Underwriter described in Section 8(a) but only to the extent such loss, liability, claim, damage and expense arises out of or is based upon information relating to such Underwriter furnished in writing by or on behalf of such Underwriter expressly for use in the Registration Statement, the Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus (each as amended or supplemented if the Company shall have furnished any amendments or supplements thereto). The Representative confirms that the (i) Underwriters' names on the front cover page, Page S-37 and the back cover page , (ii) the third paragraph appearing under the caption “Supplemental Plan of Distribution” on Page S-37, (iii) the paragraphs appearing under the caption “Supplemental Plan of Distribution—Stabilization Transactions and Short Sales” on Pages S-37 and S-38 and (iv) the second paragraph under the caption “Supplemental Plan of Distribution - Conflicts of Interest” on Page S-38 of the preliminary prospectus and the Prospectus were furnished in writing to the Company by or on behalf of the Underwriters expressly for use therein.
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(c) In case any action shall be brought against any indemnified party based upon the Registration Statement, the Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus (each as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) and with respect to which indemnity may be sought against the indemnifying party, such indemnified party shall promptly notify the indemnifying party in writing, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 8(a) hereof, counsel to the indemnified parties shall be selected by the Representative, and, in the case of parties indemnified pursuant to Section 8(b) hereof, counsel to the indemnified parties shall be selected by the Company, provided that, if it so elects by written notice delivered to such indemnified party within a reasonable time after receiving the aforesaid notice from such indemnified party, an indemnifying party, jointly with any other indemnifying party receiving such notice, may assume the defense thereof, unless such indemnified party reasonably objects to such assumption on the ground that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party. If an indemnifying party assumes the defense of such action, any fees and expenses of counsel for the indemnified party incurred thereafter in connection with such action shall be at the expense of such indemnified party. An indemnifying party may participate at its own expense in the defense of any such action, provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying party be liable for the fees and expenses of more than one counsel (in addition to any one local counsel) separate from their own counsel for all indemnified parties in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. In the case of any separate firm for the Underwriters and persons who control any Underwriter, such firm shall be designated by the Representative. Subject to Section 8(d) below, the indemnifying party shall not be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld). No indemnifying party shall, without the prior written consent of the indemnified party, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section (whether or not the indemnified party is an actual or potential party thereto), unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 8(a)(ii) hereof effected without its written consent if: (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request; (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into; and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
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(e) If the indemnification provided for in paragraphs (a), (b) and (c) of this Section 8 is held to be unenforceable by an indemnified party in respect of any losses, claims, damages, liabilities, expenses or judgments referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities, expenses and judgments (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party on the one hand and the indemnified party on the other hand from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party on the one hand and the indemnified party on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, expenses or judgments, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Underwriters shall be deemed to be in the same respective proportion as the total net proceeds from the offering (before deducting expenses but after deducting the total underwriting discounts and commissions received by the Underwriters) received by the Company, and the total underwriting discounts and commissions received by the Underwriters, bear to the total price to the public of the Securities, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company and the Underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Company or the Underwriters 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 Section 8(e) 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 in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities, expenses or judgments referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, 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 Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ respective obligations to contribute pursuant to this Section 8(e) are several in proportion to the respective amount of Securities purchased by each of the Underwriters hereunder and not joint.
For purposes of this Section 8, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, and each director or executive board member of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
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9. Conditions of Underwriters’ Obligations. The several obligations of the Underwriters to purchase the Securities under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) The Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act, and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending before or, to the best knowledge of the Company, contemplated by the Commission.
(c) The Final Term Sheet and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under Rule 433.
(d) There shall not have been, since the date hereof or since the respective dates as of which information is given in the Disclosure Package and the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or consolidated results of operations of the Company and its subsidiaries considered as one enterprise.
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating assigned to any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined under Section 3(a)(62) of the Exchange Act.
(f) The Representative shall have received on the Closing Date an opinion (reasonably satisfactory to the Representative and counsel for the Underwriters, as applicable), dated the Closing Date, of Homburger AG, Swiss counsel for the Company. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials and may contain other customary or appropriate assumptions and qualifications reasonably satisfactory to counsel for the Underwriters.
(g) The Representative shall have received on the Closing Date an opinion and disclosure letter (reasonably satisfactory to the Representative and counsel for the Underwriters, as applicable), dated the Closing Date, of Sullivan & Cromwell LLP, United States counsel for the Company. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials and may contain other customary or appropriate assumptions and qualifications reasonably satisfactory to counsel for the Underwriters.
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(h) The Representative shall have received on the Closing Date an opinion (reasonably satisfactory to the Representative and counsel for the Underwriters, as applicable), dated the Closing Date, of Sullivan & Cromwell LLP, English counsel for the Company. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials and may contain other customary or appropriate assumptions and qualifications reasonably satisfactory to counsel for the Underwriters.
(i) The Representative shall have received on the Closing Date, an opinion and disclosure letter, dated the Closing Date, of Davis Polk & Wardwell LLP, United States counsel for the Underwriters, covering such matters as the Representative may request. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials and may contain other customary or appropriate assumptions and qualifications.
(j) The Representative shall have received on the Closing Date, an opinion, dated the Closing Date, of Davis Polk & Wardwell LLP, English counsel for the Underwriters, covering such matters as the Representative may request. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials and may contain other customary or appropriate assumptions and qualifications.
(k) The Representative shall have received letters on and as of the date hereof and on and as of the Closing Date, in form and substance satisfactory to the Representative, from Ernst & Young Ltd, an independent registered public accounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to the Underwriters with respect to the financial statements and certain financial information of the Company contained in the Registration Statement, any preliminary prospectus and the Prospectus, including reports incorporated by reference therein.
(l) The Representative shall have received on the Closing Date a written certificate of an executive officer of the Company (reasonably satisfactory to the Representative and counsel for the Underwriters, as applicable) stating that (a) there shall not have been, since the date hereof or since the respective dates as of which information is given in the Disclosure Package and the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or consolidated results of operations of the Company and its subsidiaries considered as one enterprise, (b) the representations and warranties of the Company in Section 6 hereof were true and correct when made and are true and correct with the same force and effect as though expressly made at and as of the Closing Date, and (c) the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date.
(m) The Company shall not have failed at or prior to the Closing Date to perform or comply in all material respects with any of the agreements herein contained and required to be performed or complied with by the Company at or prior to the Closing Date.
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10. Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the Closing Date by the Representative by written notice to the Company if any of the following has occurred: (i) since the respective dates as of which information is given in the Registration Statement and the Prospectus and since the Time of Sale, any material adverse change in the condition, financial or otherwise, of the Company and its subsidiaries taken as a whole or the earnings, affairs, or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representative (after discussion with the Company to the extent practicable), make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities, or in Switzerland declared by Swiss authorities, (iii) any outbreak or escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or change in in the international financial markets or financial markets of the United States that is material and adverse and would, in the judgment of the Representative (after discussion with the Company to the extent practicable), make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, (iv) the suspension or material limitation of trading in securities generally, or in the securities of the Company listed, on the SIX Swiss Exchange, New York Stock Exchange, the NYSE American or The Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required on any such exchange or (v) a material disruption in securities settlement in the United States or Europe that makes it impracticable to deliver the Securities in the manner contemplated by the Prospectus.
11. Default of One or More Managers. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase and pay for any of the Securities which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total principal amount of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the principal amount of Securities set forth opposite its name in Schedule I bears to the total principal amount of Securities which all the non-defaulting Underwriters, as the case may be, have agreed to purchase, or in such other proportion as the Representative may specify, to purchase the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate principal amount of Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to the Representative and the Company for purchase of such Securities are not made within 24 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company. In any such case which does not result in termination of this Agreement, either the Representative or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.
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12. No Agency or Fiduciary Duty. The Company acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed an advisory, agency or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. The Company acknowledges that none of the activities of the Underwriters in connection with the offering of the Securities constitutes a recommendation, investment advice, or solicitation of any action by the Underwriters with respect to the Company.
This Agreement supersedes all prior agreements and understandings (whether written or oral) among the Company and the several Underwriters, or any of them, with respect to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
13. UK MiFIR Product Governance Rules. Solely for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules:
| (i) | UBS AG London Branch (the “UK Manufacturer”) acknowledges that it understands the responsibilities<br>conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and<br>the proposed distribution channels as applying to the Securities and the related information set out in the preliminary prospectus or<br>the Prospectus in connection with the Securities; and |
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| (ii) | The Underwriters subject to the UK MiFIR Product Governance Rules note the application of the UK MiFIR<br>Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Securities by the UK<br>Manufacturer and the related information set out in the preliminary prospectus or the Prospectus in connection with the Securities. |
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14. Selling Restrictions. Each of the Underwriters represents, warrants and undertakes to comply with the selling restrictions as set out in Schedule III.
15. Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 15:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R.<br>§ 252.82(b); |
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| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.<br>§ 47.3(b); or |
| --- | --- |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R.<br>§ 382.2(b). |
| --- | --- |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
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16. Miscellaneous. Notices given pursuant to any provision of this Agreement shall be addressed as follows: (a) if to the Company, to UBS AG, Bahnhofstrasse 45 8001 Zurich Switzerland, Attention: Group Treasury, and (b) if to any Underwriter, to UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: Fixed Income Syndicate; or in any case to such other address as the person to be notified may have requested in writing. Any such notice shall be effective upon receipt thereof.
17. Representations and Indemnities to Survive. The respective indemnities, contribution agreements, representations, warranties and other statements of the Company, its officers and directors and of the several Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter or by or on behalf of the Company, the officers or directors of the Company or any controlling person of the Company, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement.
18. Reimbursement of Underwriters’ Expenses. If this Agreement shall be terminated by the Representative because of any failure of the Company to satisfy any of the conditions set forth in Section 9 of this Agreement, the Company agrees to reimburse the several Underwriters for all documented out-of-pocket expenses (including the reasonable fees and disbursements of counsel to the Underwriters) reasonably incurred by them.
19. Payment of Expenses. The Company shall pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Securities Act of the Prospectus, each preliminary prospectus and all amendments and supplements to any of them prior to or during the Prospectus Delivery Period, any Issuer Free Writing Prospectus and the Disclosure Package, (ii) the printing and delivery of the Prospectus and all amendments or supplements to it during the Prospectus Delivery Period, (iii) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (iv) filings and clearance with the Financial Industry Regulatory Authority, Inc. in connection with the offering, (v) furnishing such copies of the Registration Statement, the Disclosure Package, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold, (vi) the rating agencies in connection with the ratings of the Securities and (vii) the preparation, issuance, execution, authentication and delivery of the Securities and any expenses of the Trustee in connection therewith (including the reasonable fees and disbursements of counsel for the Trustee). Except as otherwise provided in this Section 19 and Section 18 of this Agreement, the Underwriters shall pay their own costs and expenses, including the fees and disbursements of counsel for the Underwriters.
20. Successors. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any director or officer of the Company referred to herein, any controlling persons referred to herein, any agent referred to herein, any affiliate referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The term “successors and assigns” shall not include a purchaser of any of the Securities from any of the several Underwriters merely because of such purchase.
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21. Foreign Taxes. Any amounts payable to an Underwriter hereunder shall be payable free and clear of, and without deduction or withholding for or an account of, any and all present and future taxes, assessments or other governmental charges now or hereafter imposed or assessed by Switzerland or any political subdivision or taxing authority thereof or therein (“Foreign Taxes”). If Foreign Taxes are so levied or imposed, the Company agrees to pay such additional amounts (“Additional Amounts”) as may be necessary so that the amount due under this Agreement after withholding or deduction for or on an account of Foreign Taxes will not be less that the amount provided for herein; provided, however, the Company will not be required to make any payment of Additional Amounts to an Underwriter for or on account of (a) any such Foreign Taxes which would not have been so imposed but for the existence of an of any present or former connection between such Underwriter (or between a member or shareholder of such Underwriter) and Switzerland (or any political subdivisions or taxing authority thereof or therein) including, without limitation, such Underwriter (or such member or shareholder) being or having been a resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein or (b) any Foreign Taxes which would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identify of the Underwriter, if such compliance is required by statute or by regulation of Switzerland or of any political subdivisions or taxing authority thereof or therein as a precondition to relief or exemption from such Foreign Taxes.
22. Judgment Currency. In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than United States dollars, the Company will indemnify each Underwriter against any loss incurred by such Underwriter as a result of any variation as between: (i) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order; and (ii) the rate of exchange at which a Underwriter is able to purchase United States dollars with the amount of the judgment currency actually received by such Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars. In the event that any such Underwriter, as a result of any variation as noted in (i) or (ii) above, recovers an amount of United States dollars on conversion of a sum paid in a judgment currency, which amount is in excess of the judgment or order given or made in United States dollars, such Underwriter shall remit such excess to the Company.
23. Applicable Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York without reference to choice of law principles thereof.
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24. Submission to Jurisdiction. Each of the parties hereto irrevocably: (i) agrees that any legal suit, action or proceeding against the Company brought by any Underwriter or by any person who controls any Underwriter arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or Federal court located in the State of New York (a “New York Court”); (ii) waives, to the fullest extent it may effectively do so, any objection that it may now or hereafter have to the laying of venue of any such proceeding; and (iii) submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The Company irrevocably waives any immunity to jurisdiction to which it may otherwise be entitled or become entitled (including sovereign immunity, immunity to pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Agreement or the transactions contemplated hereby that is instituted in any New York Court or in any competent court in Switzerland. The Company has appointed UBS AG, New York branch, with offices at 1285 Avenue of the Americas, New York, New York 10019, Attention: Corporate Legal, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Agreement or the transactions contemplated hereby that may be instituted in any New York Court by any Underwriter or by any person who controls any Underwriter, expressly consent to the jurisdiction of any such court in respect of any such action, and waive any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable. The Company represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon such Authorized Agent and written notice of such service to the Company shall be deemed, in every respect, effective service of process upon the Company. The Company hereby consents to process being served by the Representative on them in any suit, action or proceeding relating to or arising from this Agreement by the mailing of a copy thereof by certified or registered mail to the address of the Company as it appears on the books and records of the Representative, and such service shall be effective thirty days after such mailing. Nothing contained herein shall affect the right to serve process in any other manner permitted by law.
25. Waiver of Trial by Jury. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, OR RELATED TO, THIS AGREEMENT.
26. Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one agreement. Signature pages may be electronically executed and delivered, including by facsimile, any electronic method complying with the federal ESIGN Act (e.g., DocuSign) or by wet ink signature captured on a pdf email attachment, and any signature pages so executed and delivered shall be valid and binding for all purposes. The foregoing provision supersedes any other consent signed by the parties related to the electronic signature and delivery of this Agreement.
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Please confirm that the foregoing correctly sets forth the agreement among the Company, acting through its London branch, and the several Underwriters.
| Very truly yours, | ||
|---|---|---|
| UBS AG, acting through its London branch | ||
| By: | /s/ Daniel Taylor | |
| Name: | Daniel Taylor | |
| Title: | Associate Director | |
| By: | /s/ Kevin Tillotson | |
| Name: | Kevin Tillotson | |
| Title: | Executive Director |
[Signature Page to UnderwritingAgreement]
Accepted:
UBS SECURITIES LLC
Acting on behalf of itself and
the several Underwriters named in
Schedule I hereto
| By: | /s/ Jay Anderson | |
|---|---|---|
| Name: | Jay Anderson | |
| Title: | Managing Director | |
| By: | /s/ John Sciales | |
| Name: | John Sciales | |
| Title: | Director |
UBS AG LONDON BRANCH
As UK Manufacturer
| By: | /s/ Ben Novick | |
|---|---|---|
| Name: | Ben Novick | |
| Title: | Executive Director | |
| By: | /s/ Robert Clark | |
| Name: | Robert Clark | |
| Title: | Director |
[Signature Page to Underwriting Agreement]
SCHEDULE I
$1,000,000,000 5.800% FixedRate Senior Notes due 2025
| Underwriters | Principal Amount of <br><br>Notes to<br> be Purchased | |
|---|---|---|
| UBS Securities LLC | $615,800,000 | |
| Barclays Capital Inc. | 18,300,000 | |
| BBVA Securities Inc. | 18,300,000 | |
| BMO Capital Markets Corp. | 12,000,000 | |
| BNY Mellon Capital Markets, LLC | 7,100,000 | |
| BofA Securities, Inc. | 7,100,000 | |
| CIBC World Markets Corp. | 12,000,000 | |
| Desjardins Securities Inc. | 7,100,000 | |
| Deutsche Bank Securities Inc. | 18,300,000 | |
| HSBC Securities (USA) Inc. | 18,300,000 | |
| Huntington Securities, Inc. | 7,100,000 | |
| J.P. Morgan Securities LLC | 18,300,000 | |
| Morgan Stanley & Co. LLC | 7,100,000 | |
| nabSecurities, LLC | 18,300,000 | |
| National Bank of Canada Financial Inc. | 7,100,000 | |
| Piraeus Bank S.A. | 18,300,000 | |
| Rabo Securities USA, Inc. | 18,300,000 | |
| RB International Markets (USA) LLC | 18,300,000 | |
| RBC Capital Markets, LLC | 7,100,000 | |
| Regions Securities LLC | 7,100,000 | |
| Santander US Capital Markets LLC | 18,300,000 | |
| Scotia Capital (USA) Inc. | 7,100,000 | |
| SEB Securities, Inc. | 18,300,000 | |
| SG Americas Securities, LLC | 18,300,000 | |
| TD Securities (USA) LLC | 12,000,000 | |
| Truist Securities, Inc. | 7,100,000 | |
| U.S. Bancorp Investments, Inc. | 7,100,000 | |
| Wells Fargo Securities, LLC | 7,100,000 | |
| Academy Securities, Inc. | 3,100,000 | |
| AmeriVet Securities, Inc. | 3,100,000 | |
| Banco Comercial Português S.A. | 3,100,000 | |
| Blaylock Van, LLC | 3,100,000 | |
| Cabrera Capital Markets, LLC | 3,100,000 | |
| CastleOak Securities, L.P. | 3,100,000 | |
| China CITIC Bank International Limited | 3,100,000 | |
| Drexel Hamilton, LLC | 3,100,000 | |
| KBC Securities USA LLC | 3,100,000 | |
| R. Seelaus, LLC | 3,100,000 | |
| Roberts & Ryan, Inc. | 3,100,000 | |
| The Korea Development Bank | 3,100,000 | |
| Tigress Financial Partners LLC | 3,100,000 | |
| Unicaja Banco S.A. | 3,100,000 | |
| ****Total | $ | $1,000,000,000 |
SI-1
$1,500,000,000 5.650% FixedRate Senior Notes due 2028
| Underwriters | Principal Amount of <br><br>Notes to<br> be Purchased | |
|---|---|---|
| UBS Securities LLC | $870,900,000 | |
| Barclays Capital Inc. | 34,350,000 | |
| BBVA Securities Inc. | 34,350,000 | |
| BMO Capital Markets Corp. | 18,300,000 | |
| BNY Mellon Capital Markets, LLC | 8,250,000 | |
| BofA Securities, Inc. | 8,250,000 | |
| CIBC World Markets Corp. | 18,300,000 | |
| Desjardins Securities Inc. | 8,250,000 | |
| Deutsche Bank Securities Inc. | 34,350,000 | |
| HSBC Securities (USA) Inc. | 34,350,000 | |
| Huntington Securities, Inc. | 8,250,000 | |
| J.P. Morgan Securities LLC | 34,350,000 | |
| Morgan Stanley & Co. LLC | 8,250,000 | |
| nabSecurities, LLC | 34,350,000 | |
| National Bank of Canada Financial Inc. | 8,250,000 | |
| Piraeus Bank S.A. | 34,350,000 | |
| Rabo Securities USA, Inc. | 34,350,000 | |
| RB International Markets (USA) LLC | 34,350,000 | |
| RBC Capital Markets, LLC | 8,250,000 | |
| Regions Securities LLC | 8,250,000 | |
| Santander US Capital Markets LLC | 34,350,000 | |
| Scotia Capital (USA) Inc. | 8,250,000 | |
| SEB Securities, Inc. | 34,350,000 | |
| SG Americas Securities, LLC | 34,350,000 | |
| TD Securities (USA) LLC | 18,300,000 | |
| Truist Securities, Inc. | 8,250,000 | |
| U.S. Bancorp Investments, Inc. | 8,250,000 | |
| Wells Fargo Securities, LLC | 8,250,000 | |
| Academy Securities, Inc. | 4,500,000 | |
| AmeriVet Securities, Inc. | 4,500,000 | |
| Banco Comercial Português S.A. | 4,500,000 | |
| Blaylock Van, LLC | 4,500,000 | |
| Cabrera Capital Markets, LLC | 4,500,000 | |
| CastleOak Securities, L.P. | 4,500,000 | |
| China CITIC Bank International Limited | 4,500,000 | |
| Drexel Hamilton, LLC | 4,500,000 | |
| KBC Securities USA LLC | 4,500,000 | |
| R. Seelaus, LLC | 4,500,000 | |
| Roberts & Ryan, Inc. | 4,500,000 | |
| The Korea Development Bank | 4,500,000 | |
| Tigress Financial Partners LLC | 4,500,000 | |
| Unicaja Banco S.A. | 4,500,000 | |
| ****Total | $ | $1,500,000,000 |
SI-2
$500,000,000Floating Rate Senior Notes due 2025
| Underwriters | Principal Amount of Notes to<br> be Purchased | |
|---|---|---|
| UBS Securities LLC | $307,900,000 | |
| Barclays Capital Inc. | 9,150,000 | |
| BBVA Securities Inc. | 9,150,000 | |
| BMO Capital Markets Corp. | 6,000,000 | |
| BNY Mellon Capital Markets, LLC | 3,550,000 | |
| BofA Securities, Inc. | 3,550,000 | |
| CIBC World Markets Corp. | 6,000,000 | |
| Desjardins Securities Inc. | 3,550,000 | |
| Deutsche Bank Securities Inc. | 9,150,000 | |
| HSBC Securities (USA) Inc. | 9,150,000 | |
| Huntington Securities, Inc. | 3,550,000 | |
| J.P. Morgan Securities LLC | 9,150,000 | |
| Morgan Stanley & Co. LLC | 3,550,000 | |
| nabSecurities, LLC | 9,150,000 | |
| National Bank of Canada Financial Inc. | 3,550,000 | |
| Piraeus Bank S.A. | 9,150,000 | |
| Rabo Securities USA, Inc. | 9,150,000 | |
| RB International Markets (USA) LLC | 9,150,000 | |
| RBC Capital Markets, LLC | 3,550,000 | |
| Regions Securities LLC | 3,550,000 | |
| Santander US Capital Markets LLC | 9,150,000 | |
| Scotia Capital (USA) Inc. | 3,550,000 | |
| SEB Securities, Inc. | 9,150,000 | |
| SG Americas Securities, LLC | 9,150,000 | |
| TD Securities (USA) LLC | 6,000,000 | |
| Truist Securities, Inc. | 3,550,000 | |
| U.S. Bancorp Investments, Inc. | 3,550,000 | |
| Wells Fargo Securities, LLC | 3,550,000 | |
| Academy Securities, Inc. | 1,550,000 | |
| AmeriVet Securities, Inc. | 1,550,000 | |
| Banco Comercial Português S.A. | 1,550,000 | |
| Blaylock Van, LLC | 1,550,000 | |
| Cabrera Capital Markets, LLC | 1,550,000 | |
| CastleOak Securities, L.P. | 1,550,000 | |
| China CITIC Bank International Limited | 1,550,000 | |
| Drexel Hamilton, LLC | 1,550,000 | |
| KBC Securities USA LLC | 1,550,000 | |
| R. Seelaus, LLC | 1,550,000 | |
| Roberts & Ryan, Inc. | 1,550,000 | |
| The Korea Development Bank | 1,550,000 | |
| Tigress Financial Partners LLC | 1,550,000 | |
| Unicaja Banco S.A. | 1,550,000 | |
| ****Total | $ | $500,000,000 |
SI-3
SCHEDULE II
Term Sheet
UBS AG, acting through its London Branch
$1,000,000,000 5.800% Fixed Rate Senior Notes due 2025
$1,500,000,000 5.650% Fixed Rate Senior Notes due 2028
$500,000,000 Floating Rate Senior Notes due 2025
Summary of Terms for Issuance
| Issuer: |
|---|
| Trade Date: |
| Settlement Date: * |
| Ranking: |
| Expected Security Ratings: ** |
| 1,000,000,000 5.800% Fixed Rate Senior Notes due 2025 |
| Security: |
| Principal Amount: |
| Net Proceeds to Issuer (before expenses): |
| Maturity Date: |
| Payment Frequency: |
| Day Count/Business Day Convention: |
| Benchmark Treasury: |
All values are in US Dollars.
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| Benchmark Treasury Price and Yield: |
|---|
| Spread to Benchmark Treasury: |
| Price to Public: |
| Interest Rate: |
| Yield to Maturity: |
| Interest Payment Dates: |
| Business Day: |
| Optional Tax Redemption: |
| CUSIP/ISIN: |
| Clearing and Settlement |
| 1,500,000,000<br> 5.650% Fixed Rate Senior Notes due 2028 |
| Security: |
| Principal Amount: |
| Net Proceeds to Issuer (before expenses): |
All values are in US Dollars.
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| Maturity Date: | September 11, 2028 |
|---|---|
| Payment Frequency: | Semi-annually |
| Day Count/Business Day Convention: | 30/360; Following, Unadjusted |
| Benchmark Treasury: | UST 4.375% Notes due 08/31/28 |
| Benchmark Treasury Price and Yield: | 100-00+; 4.371% |
| Spread to Benchmark Treasury: | +128 bps |
| Price to Public: | 99.996% of principal amount |
| Interest Rate: | 5.650% |
| Yield to Maturity: | 5.651% |
| Interest Payment Dates: | Interest on the 2028 Fixed Rate Notes will be payable<br> semi-annually in arrears on March 11 and September 11 in each year, from (and including) March 11, 2024 up to (and including) the<br> applicable Maturity Date (each a “Fixed Rate Interest Payment Date”), provided that if any Fixed Rate Interest Payment<br> Date would fall on a day that is not a Business Day (as defined below), the related payment of interest otherwise payable on such<br> date shall not be made on such date, but shall be made on the next succeeding Business Day with the same force and effect as if made<br> on the Fixed Rate Interest Payment Date, and no interest shall accrue for the period from and after the Fixed Rate Interest Payment<br> Date to such next succeeding Business Day. |
| Business Day: | The City of New York, New York and London, England |
| Optional Tax Redemption: | The Issuer may at its option redeem the 2028 Fixed Rate Notes at any time outstanding, in whole<br> but not in part, on the occurrence of certain tax events, at an amount equal to 100% of their principal amount, plus accrued and<br> unpaid interest, if any, to (but excluding) the redemption date. |
| CUSIP/ISIN: | 902674ZW3 / US902674ZW39 |
| Clearing and Settlement | DTC<br>(and its participants, including Clearstream, Luxembourg and Euroclear) |
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| 500,000,000<br> Floating Rate Senior Notes due 2025 |
|---|
| Security: |
| Principal Amount: |
| Net Proceeds to Issuer (before expenses): |
| Maturity Date: |
| Payment Frequency: |
| Day Count/Business Day Convention: |
| Price to Public: |
| Interest Rate: |
| Reference Rate: |
| Calculation Agent: |
| Margin: |
| Floating Rate Interest Payment Dates: |
All values are in US Dollars.
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| Floating Rate Interest Periods: | The period beginning on, and including, a Floating Rate Interest Payment Date (or, in the case of the first Floating Rate Interest Period, the Issue Date) and ending on, but excluding, the next succeeding Floating Rate Interest Payment Date (or, in the case of the redemption or acceleration of the Floating Rate Notes, the relevant date of redemption or acceleration. |
|---|---|
| Interest Determination Date | With respect to any Floating Rate Interest Period, the “Interest Determination Date” shall be the date falling two U.S. Government Securities Business Days (as defined below) prior to the applicable Floating Rate Interest Payment Date (or, in the case of the redemption or acceleration of the Floating Rate Notes, prior to the relevant date of redemption or acceleration). |
| Observation Period: | In respect of each Floating Rate Interest Period, the period from (and including) the date falling two U.S. Government Securities Business Days prior to the first day of such Floating Rate Interest Period to (but excluding) the Interest Determination Date relating to such Floating Rate Interest Period. |
| U.S. Government Securities Business Day: | Any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities. |
| Business Day: | The City of New York, New York and London, England |
| Optional Tax Redemption: | The Issuer may at its option redeem the Floating Rate Notes at any time outstanding,<br> in whole but not in part, on the occurrence of certain tax events, at an amount equal to 100% of their principal amount, plus accrued<br> and unpaid interest, if any, to (but excluding) the redemption date. |
| CUSIP/ISIN: | 902674ZX1 / US902674ZX12 |
| Clearing and Settlement | DTC (and its participants, including Clearstream, Luxembourg and Euroclear) |
| OTHER INFORMATION | |
| Sole Book-Running Manager: | UBS Securities LLC |
| Joint Lead Underwriters: | Barclays Capital Inc. |
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| BBVA Securities Inc.<br><br> <br>BMO Capital Markets Corp.<br><br> <br>BNY Mellon Capital Markets, LLC<br><br> <br>BofA Securities, Inc.<br><br> <br>CIBC World Markets Corp.<br><br> <br>Desjardins Securities Inc.<br><br> <br>Deutsche Bank Securities Inc.<br><br> <br>HSBC Securities (USA) Inc.<br><br> <br>Huntington Securities, Inc.<br><br> <br>J.P. Morgan Securities LLC<br><br> <br>Morgan Stanley & Co. LLC<br><br> <br>nabSecurities, LLC<br><br> <br>National Bank of Canada Financial Inc.<br><br> <br>Piraeus Bank S.A.<br><br> <br>Rabo Securities USA, Inc.<br><br> <br>RB International Markets (USA) LLC<br><br> <br>RBC Capital Markets, LLC<br><br> <br>Regions Securities LLC<br><br> <br>Santander US Capital Markets LLC<br><br> <br>Scotia Capital (USA) Inc.<br><br> <br>SEB Securities, Inc.<br><br> <br>SG Americas Securities, LLC<br><br> <br>TD Securities (USA) LLC<br><br> <br>Truist Securities, Inc.<br><br> <br>U.S. Bancorp Investments, Inc.<br><br> <br>Wells Fargo Securities, LLC | |
|---|---|
| Co-Lead Underwriters: | Academy Securities, Inc.<br><br> <br>AmeriVet Securities, Inc.<br><br> <br>Banco Comercial Português S.A.<br><br> <br>Blaylock Van, LLC<br><br> <br>Cabrera Capital Markets LLC<br><br> <br>CastleOak Securities, L.P.<br><br> <br>China CITIC Bank International Limited<br><br> <br>Drexel Hamilton, LLC<br><br> <br>KBC Securities USA LLC<br><br> <br>R. Seelaus & Co., LLC<br><br> <br>Roberts & Ryan, Inc.<br><br> <br>The Korea Development Bank<br><br> <br>Tigress Financial Partners LLC<br><br> <br>Unicaja Banco S.A. |
Additional Item: UBS Securities LLC expects to purchase approximately $25 million aggregate principal amount of 2028 Fixed Rate Notes in the open market in connection with stabilization activities.
*Note: Under Rule 15c6-1 of the U.S. Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to a trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes on any date prior to the second business day before delivery will be required by virtue of the fact that the notes initially will settle in four business days to specify alternative settlement arrangements to prevent a failed settlement.
**Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
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UBS AG has filed a registration statement (including a prospectus andpreliminary prospectus supplement) with the SEC for the offering to which this communication relates. Before you invest, you should readeach of these documents and the other documents UBS AG has filed with the SEC and incorporated by reference in such documents for morecomplete information about UBS AG and this offering. You may obtain these documents for free by visiting EDGAR on the SEC website at www.sec.gov.Alternatively, you may obtain a copy of these documents by contacting UBS Securities LLC toll-free at (888) 827-7275.
Any disclaimers or other notices that may appear below are not applicableto this communication and should be disregarded. Such disclaimers were automatically generated as a result of this communication beingsent via Bloomberg or another email system.
SII-7
SCHEDULE III
Selling Restrictions
Prohibition of Sales to EEA Retail Investors
The Notes may not be offered, sold or otherwise made available to any retail investor in the European Economic Area (“EEA”).
For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following:
| (i) | a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or |
|---|---|
| (ii) | a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined<br>in point (10) of Article 4(1) of MiFID II. |
| --- | --- |
| (iii) | not a qualified investor as defined in the Prospectus Regulation. |
| --- | --- |
For the purposes of this provision, the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes.
Prohibition of Sales to UK Retail Investors
The Notes may not be offered, sold or otherwise made available to any retail investor in the UK.
For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following:
| (i) | a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of<br>the European Union (Withdrawal) Act 2018 (“EUWA”); or |
|---|---|
| (ii) | a customer within the meaning of the provisions of the Financial Services and Markets Act (as amended, the “FSMA”)<br>and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional<br>client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA;<br>or |
| --- | --- |
| (iii) | not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA. |
| --- | --- |
For the purposes of this provision, the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes.
Exhibit 4.2
EXECUTION VERSION
UBS AG,
acting through its London branch
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
SEVENTH SUPPLEMENTAL INDENTURE
Dated as of September 11, 2023
To the Indenture, dated as of June 12, 2015,
Between UBS AG
and
U.S. Bank Trust National Association
$1,000,000,000 5.800 % Fixed Rate Senior Notes due 2025
Table of Contents
| Page | |||
|---|---|---|---|
| Article I | |||
| Definitions and Other Provisions of General Application | |||
| Section 1.01 | Definitions | 1 | |
| Section 1.02 | Effect of Headings | 2 | |
| Section 1.03 | Separability Clause | 2 | |
| Section 1.04 | Benefits of Instrument | 2 | |
| Section 1.05 | Relation to Base Indenture | 2 | |
| Section 1.06 | Construction and Interpretation | 3 | |
| Article II | |||
| Form and Terms of the Securities; Interest and Payments | |||
| Section 2.01 | Establishment of Securities; Form and Certain Terms of Securities | 3 | |
| Section 2.02 | Interest | 4 | |
| Section 2.03 | Events of Default; Collection of Indebtedness and Suits for Enforcement by Trustee | 4 | |
| Section 2.04 | Additional Amounts | 6 | |
| Section 2.05 | Issuing Branch Substitution | 8 | |
| Article III | |||
| consolidation, merger, conveyance, transfer or lease | |||
| Section 3.01 | Company May Consolidate, Etc., Only on Certain Terms | 8 | |
| Article IV | |||
| Miscellaneous Provisions | |||
| Section 4.01 | Effectiveness | 9 | |
| Section 4.02 | Original Issue | 9 | |
| Section 4.03 | Ratification and Integral Part | 10 | |
| Section 4.04 | Priority | 10 | |
| Section 4.05 | Successors and Assigns | 10 | |
| Section 4.06 | Counterparts | 10 | |
| Section 4.07 | Electronic Signatures | 10 | |
| Section 4.08 | Governing Law | 10 | |
| EXHIBIT A | – | Form of 5.800% Fixed Rate Senior Notes due 2025 |
SEVENTH SUPPLEMENTAL INDENTURE, dated September 11, 2023, to the Indenture dated as of June 12, 2015, as supplemented and amended from time to time (the “Base Indenture”, as supplemented by this Seventh Supplemental Indenture, the “Indenture”), between UBS AG, a corporation duly organized and existing under the laws of Switzerland (herein called the “Company”), acting through its London branch, having its principal offices at Bahnhofstrasse 45, Zurich, Switzerland, and Aeschenvorstadt 1, Basel, Switzerland, and U.S. Bank Trust National Association, a national banking association duly organized and existing under the laws of the United States, as Trustee (herein called the “Trustee”).
Recitals of the Company
WHEREAS, the Company has heretofore made, executed and delivered to the Trustee the Base Indenture, providing for the issuance from time to time of the Company’s unsecured debentures, notes or other evidences of indebtedness (herein called the “securities”) to be issued in one or more series;
WHEREAS, Section 901(7) of the Base Indenture permits supplements thereto without the consent of Holders of securities to establish the form or terms of securities of any series as permitted by Sections 201 and 301 of the Base Indenture.
WHEREAS, as contemplated by Section 301 of the Base Indenture, the Company intends to, acting through its London branch, issue a new series of securities to be known as the “$1,000,000,000 5.800% Fixed Rate Senior Notes due 2025” (the “Securities”) under the Indenture.
WHEREAS, the Company has taken all necessary corporate action to authorize the execution and delivery by the Company, acting through its London branch, of this Supplemental Indenture.
Now, therefore, this supplemental indenture witnesseth:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities as follows:
Article I
Definitions and Other Provisions of General Application
Section 1.01 Definitions. Except as otherwise expressly provided or unless the context otherwise requires, all terms used in this Supplemental Indenture that are defined in the Base Indenture shall have the meanings ascribed to them in the Base Indenture. The following terms used in this Supplemental Indenture have the following respective meanings with respect to the Securities only:
“Additional Amounts” has the meaning set forth in Section 2.04(a).
“Base Indenture” has the meaning set forth in the first paragraph of this Supplemental Indenture.
“Branch” means any of the Company’s branches outside Switzerland.
“Business Day” means any weekday, other than one on which banking institutions are authorized or obligated by law, regulation or executive order to close in London, England or The City of New York, New York.
“Code” has the meaning set forth in Section 2.04(b).
“Company” has the meaning set forth in the first paragraph of this Supplemental Indenture, and includes any successor entity.
“FATCA withholding” has the meaning set forth in Section 2.04(b)
“Indenture” has the meaning set forth in the first paragraph of this Supplemental Indenture.
“Interest Payment Date” has the meaning set forth in Section 2.02(a).
“Issuing Branch Substitution” has the meaning set forth in Section 2.05.
“Issue Date” has the meaning set forth in Section 2.01.
“Maturity Date” has the meaning set forth in Section 2.01.
“Regular Record Date” means the 15th calendar day immediately preceding each Interest Payment Date.
“Relevant Date” has the meaning set forth in Section 2.04(b).
“Relevant Jurisdiction” has the meaning set forth in Section 2.04(b).
“Securities” has the meaning set forth in the Recitals.
“Supplemental Indenture” means this Seventh Supplemental Indenture.
“Taxes” has the meaning set forth in Section 2.04(a)
“Trustee” has the meaning set forth in the first paragraph of this Supplemental Indenture.
“UBS Head Office” means, the Company’s head offices in Basel and Zurich.
Section 1.02 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 1.03 Separability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.04 Benefits of Instrument. Nothing in this Supplemental Indenture, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 1.05 Relation to Base Indenture. This Supplemental Indenture constitutes an integral part of the Base Indenture. Notwithstanding any other provision of this Supplemental Indenture, all provisions of this Supplemental Indenture are expressly and solely for the benefit of the Holders and Beneficial Owners of the Securities and any such provisions shall not be deemed to apply to any other Securities issued under the Base Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any purpose other than with respect to the Securities.
-2-
Section 1.06 Construction and Interpretation. Unless the context otherwise requires:
| (i) | the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Supplemental<br>Indenture, refer to this Supplemental Indenture as a whole and not to any particular provision of this Supplemental Indenture; |
|---|---|
| (ii) | the terms defined in the singular have a comparable meaning when used in the plural, and vice versa; |
| --- | --- |
| (iii) | references herein to a specific Section, Article or Exhibit refer to Sections or Articles of, or an Exhibit to, this Supplemental<br>Indenture; |
| --- | --- |
| (iv) | wherever the words “include”, “includes” or “including” are used in this Supplemental Indenture,<br>they shall be deemed to be followed by the words “without limitation;” |
| --- | --- |
| (v) | references to a Person are also to its successors and permitted assigns; |
| --- | --- |
| (vi) | the use of “or” is not intended to be exclusive unless expressly indicated otherwise; and |
| --- | --- |
| (vii) | references to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification<br>or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment. |
| --- | --- |
Article II
Form and Terms of the Securities; Interest and Payments
Section 2.01 Establishment of Securities; Form and Certain Terms of Securities.
(a) There is hereby established a new series of securities under the Base Indenture entitled the “$1,000,000,000 5.800% Fixed Rate Senior Notes due 2025”. The Securities shall be executed and delivered in substantially the form attached hereto as Exhibit A. The Securities shall be initially issued in the form of one or more Global Securities. The Company hereby designates the Depository Trust Company as the Depositary for the Securities.
(b) The Company, acting through its London branch, shall issue the Securities in an aggregate principal amount of $1,000,000,000 on September 11, 2023 (the “Issue Date”). The Company may issue additional Securities from time to time after the Issue Date in the manner and to the extent permitted by Section 301 of the Base Indenture.
(c) Principal shall be payable on September 11, 2025 in respect of the Securities (the “Maturity Date”). The Securities shall not have a sinking fund and are not redeemable at the option of the Holders.
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(d) Interest shall be payable on the Securities as provided in Section 2.02 and Additional Amounts shall be payable in respect of the Securities in accordance with Section 2.04.
(e) The Securities shall not be redeemable except as provided in Section 1108 of the Base Indenture (provided that the references therein to the definitions of Relevant Jurisdiction and Additional Amounts as set forth in Section 1007 of the Base Indenture shall, for purposes of the Securities, be deemed to refer to the definitions of such terms set forth Section 2.04 of this Supplemental Indenture).
(f) The Company hereby appoints the Trustee, acting through its office at 100 Wall Street, Suite 600, New York, NY 10005, to act as the initial Paying Agent for the Securities.
(g) The Securities constitute the direct, unconditional, unsecured and unsubordinated obligations of the Company ranking pari passu without any preference among themselves. In the event of the winding-up or administration of the Company, the Securities will rank paripassu with all of the other outstanding unsecured and unsubordinated obligations of the Company, present and future, except such obligations as are preferred by operation of law.
(h) Subject to Section 2.03 of this Supplemental Indenture, the Events of Default and remedies with respect to the Securities shall be limited as provided in Article 5 of the Base Indenture.
(i) The Securities shall be issued in denominations of $200,000 in principal amount and integral multiples of $1,000 in excess thereof.
Section 2.02 Interest.
(a) The Securities will bear interest from (and including) the Issue Date at a rate of 5.800% per annum. Interest on the principal amount of the Securities shall be payable semiannually in arrear on March 11 and September 11 of each year (each, an “Interest Payment Date”), commencing on March 11, 2024. If an Interest Payment Date would fall on a day that is not a Business Day, the related payment of interest otherwise payable on such date shall not be made on such date, but shall be made on the next succeeding Business Day with the same force and effect as if made on the applicable Interest Payment Date, and no interest shall accrue for the period from and after the applicable Interest Payment Date to such next succeeding Business Day. If the Maturity Date or date of redemption or repayment is not a Business Day, the payment of interest and principal and/or any amount payable upon redemption of the Securities will be made on the next succeeding Business Day, but interest on that payment shall not accrue during the period from and after such Maturity Date or date of redemption or repayment. Interest on the Securities shall be computed on the basis of a year of 360 days consisting of twelve months of thirty days each.
Section 2.03 Events of Default; Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) An “Event of Default” with respect to the Securities means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
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(1) default in the payment of any interest or principal upon any Security when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the performance, or breach, of any covenant or warranty of the Company in the Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 2.03(a) specifically dealt with or which has expressly been included in the Indenture solely for the benefit of series of securities other than the Securities), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(3) the entry by a court having jurisdiction of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Swiss bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(4) The commencement by the Company of a voluntary case or proceeding under any applicable Swiss bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Swiss bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Swiss law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the taking of corporate action by the Company in furtherance of any such action.
(b) The Company covenants that if an Event of Default specified in Section 2.03(a)(1) occurs and is continuing, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of the relevant Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If an Event of Default with respect to the Securities occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Securities by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in the Indenture or in aid of the exercise of any power granted therein, or to enforce any other proper remedy.
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(c) For purposes of the Securities, (i) Section 2.03(a) replaces Section 501 of the Base Indenture in its entirety, (ii) Section 2.03(b) replaces Section 502 of the Base Indenture in its entirety, (iii) a references to Section 501(5) and Section 501(6) of the Base Indenture, as set forth in Section 502 and Section 607 of the Base Indenture, shall be deemed to refer to Section 2.03(a)(3) and Section 2.03(a)(4), respectively, of this Supplemental Indenture and (iv) the reference to Section 501(4) of the Base Indenture, as set forth in Section 602 of the Base Indenture, shall be deemed to refer to Section 2.03(a)(2) of this Supplemental Indenture.
Section 2.04 Additional Amounts.
(a) Payments under the Securities will be made without deduction or withholding for or on account of any present or future tax, duty, assessment or governmental charge imposed upon or as a result of such payments by a Relevant Jurisdiction (“Taxes”), unless required by law. To the extent any such Taxes are so levied or imposed, the Company will, subject to the exceptions and limitations set forth below, pay such additional amounts (“Additional Amounts”) to the Holder of any Security who is not a resident of the Relevant Jurisdiction as may be necessary in order that every net payment of the principal of and interest on such Security and any other amounts payable on such Security, after withholding for or on account of such Taxes imposed upon or as a result of such payment, will not be less than the amount provided for in such Security to be then due and payable.
(b) Notwithstanding the provisions of Section 2.04(a), the Company will not be required to make any payment of Additional Amounts in relation to any Security:
(1) to a Holder who is liable to such Taxes on that Security as a result of having some connection with the Relevant Jurisdiction other than its mere ownership or possession of the Security or the receipt of principal or interest in respect thereof;
(2) that is presented for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to receive the Additional Amounts if it had presented the Security for payment on the last day of the 30-day period;
(3) where such withholding or deduction is imposed on a payment and is required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation proposed by the Swiss Federal Council on April 3, 2020, or otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying-agent-based system pursuant to which a Person other than the Company is required to withhold tax on any interest payments;
(4) on account of any such Taxes which would not have been so imposed but for the existence of any present or former connection between such Holder (or between a fiduciary, settler, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership or a corporation) and the United States including, without limitation, such Holder (or such fiduciary, settler, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein;
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(5) on account of any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, duty, assessment or governmental charge;
(6) on account of any Taxes which are payable otherwise than by withholding or deduction from payments on or in respect of any Security;
(7) on account of any Taxes which would not have been imposed but for the failure of a Holder, or any intermediary, custodian or broker, to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of such Security, if such compliance is required by statute or by regulation of or on behalf of the United States as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(8) on account of any Taxes imposed solely because the Holder is a bank purchasing the Security in the ordinary course of its lending business;
(9) on account of any Taxes required to be deducted or withheld by any paying agent from a payment on the Security if such payment can be made without such deduction or withholding by a paying agent other than the one required to make such a deduction or withholding;
(10) on account of any Taxes imposed on (A) a Holder that actually or constructively owns 10% or more of the combined voting power of all classes of stock of the Company entitled to vote; or (B) contingent interest as described in section 871(h)(4) of the Code; or
(11) any combination of (1) through (10) above;
nor shall Additional Amounts be paid with respect to any payment on a Security to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder of the Security.
“Relevant Date” means the date on which the payment first becomes due. If the full amount of the moneys payable on the due date has not been received by the Trustee on or before the due date, then “Relevant Date” means the date on which notice to the effect that the full amount of the money due has been received by the Trustee is given to Holders.
“Relevant Jurisdiction” means United Kingdom and Switzerland.
Notwithstanding any other provisions contained herein, the Company shall be permitted to withhold or deduct any amounts required by the rules of Section 871(m) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor provisions (relating to withholding or dividend equivalents) or Sections 1471 through 1474 of the Code, or any amended or successor provisions, pursuant to any inter-governmental agreement or implementing legislation adopted by another jurisdiction in connection with these provisions, or pursuant to any agreement with the U.S. Internal Revenue Service (“FATCA withholding”) as a result of a holder, beneficial owner or an intermediary not being entitled to receive payments free of FATCA withholding. The Company will have no obligation to pay additional amounts or otherwise indemnify an investor for any such withholding deducted or withheld by the Company, the Paying Agent, the Trustee, or any other party.
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(c) The provisions of this Section 2.04 shall also apply to any Taxes imposed by (i) any jurisdiction in which a Person into which the Company has merged or to which the Company has conveyed, transferred or leased its property is a resident for tax purposes, and (ii) after giving effect to any Issuing Branch Substitution (unless Company is acting through UBS Head Office immediately after giving effect to such Issuing Branch Substitution), the jurisdiction of establishment of the Branch through which the Company is acting immediately after giving effect to such Issuing Branch Substitution, and, in each case, such jurisdiction shall thereafter be treated in the same manner as a Relevant Jurisdiction for purposes of this Section 2.04.
(d) For purposes of this Section 2.04, any references to principal of and/or interest on the Securities shall be deemed to include a reference to any relevant premium and/or Additional Amounts payable in respect of such Securities.
(e) For purposes of the Securities, this Section 2.04 replaces Section 1007 of the Base Indenture in its entirety and all references to Section 1007 of the Base Indenture shall be deemed to refer to this Section 2.04.
Section 2.05 Issuing Branch Substitution.
The Company may, without the consent of Holders, upon giving no more than 30 and no less than 10 days’ notice to Holders, at any time, (i) cease to make payments of principal, interest and any other amounts due under the Securities then outstanding and fulfil any of its other obligations and exercise any of its other rights and powers in respect of, or arising under, the Securities then outstanding through the Branch or the UBS Head Office, as applicable, through which it is acting at the time of the relevant notice, and (ii) commence making such payments, fulfilling such other obligations and exercising such powers and rights through another Branch or the UBS Head Office (if the Company was not acting through UBS Head Office at the time of the relevant notice) as designated in the relevant notice (an “Issuing Branch Substitution”), provided that, as of the time of giving the relevant notice, (A) the Company is not in default in respect of any amount payable under the Securities, and (B) the Company would not be required to pay any Additional Amounts under the terms of the Securities after giving effect to such Issuing Branch Substitution that it would not have been required to pay if such Issuing Branch Substitution were not to occur.
Article III
consolidation, merger, conveyance, transfer or lease
Section 3.01 Company May Consolidate, Etc., Only on Certain Terms.
(a) The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless:
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(1) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of the Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Company would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by the Indenture, the Company or such successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Section 3.01(a) and that all conditions precedent herein provided for relating to such transaction have been complied with.
(b) For purposes of the Securities, (i) Section 3.01(a) replaces Section 801 of the Base Indenture in its entirety, (ii) any references to Section 801 of the Base Indenture, as set forth in Section 802 and Section 803 of the Base Indenture, shall be deemed to refer to Section 3.01(a) of this Supplemental Indenture and (iii) any reference to Section 801(3) of the Base Indenture, as set forth in Section 1303 of the Base Indenture, shall be deemed to refer to Section 3.01(a)(3) of this Supplemental Indenture.
Article IV
Miscellaneous Provisions
Section 4.01 Effectiveness. This Supplemental Indenture shall become effective upon its execution and delivery.
Section 4.02 Original Issue. The Securities may, upon execution of this Supplemental Indenture, be executed by the Company and delivered by the Company to the Trustee for authentication, and the Trustee shall, upon delivery of a Company Order, authenticate and deliver such Securities as in such Company Order provided.
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Section 4.03 Ratification and Integral Part. The Base Indenture as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, including without limitation all the rights, immunities and indemnities of the Trustee, and this Supplemental Indenture shall be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided.
Section 4.04 Priority. This Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. The provisions of this Supplemental Indenture shall, with respect to the Securities and subject to the terms hereof, supersede the provisions of the Base Indenture to the extent the Base Indenture is inconsistent herewith.
Section 4.05 Successors and Assigns. All covenants and agreements in the Base Indenture, as supplemented by this Supplemental Indenture, by the Company shall bind its successors and assigns, whether so expressed or not.
Section 4.06 Counterparts. This Supplemental Indenture may be executed (by way of manual, facsimile or electronic (including, without limitation, DocuSign and AdobeSign and other similar applications) signature) in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 4.07 Electronic Signatures. All notices, approvals, consents and any communications hereunder must be in writing (provided that any communication sent to Trustee hereunder must be in the form of a document that is signed by way of a manual or facsimile signature, or by way of an electronic or digital signature provided by a digital signature provider (including, without limitation, DocuSign, AdobeSign and other similar providers), in English. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to Trustee, including the risk of interception and misuse by third parties, provided that the Company shall only assume the risk of the Trustee acting on unauthorized instructions where the Trustee acts in good faith and without gross negligence. For purposes of the Securities, any references to “manual or facsimile” signatures, as set forth in Section 303 of the Base Indenture, shall be deemed to refer to “manual, facsimile or electronic (including, without limitation, DocuSign, AdobeSign and other similar digital signature providers)” signatures.
Section 4.08 Governing Law. This Supplemental Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Seventh Supplemental Indenture to be duly executed, all as of the day and year above written.
| UBS AG, acting through its london branch | ||
|---|---|---|
| By: | /s/ Kevin Tillotson | |
| Name: | Kevin Tillotson | |
| Title: | Executive Director | |
| By: | /s/ Daniel Taylor | |
| Name: | Daniel Taylor | |
| Title: | Associate Director | |
| U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Michelle Lee | |
| Name: | Michelle Lee | |
| Title: | Vice President |
Signature Page to the Seventh Supplemental Indenture
Exhibit A
Form of Security
FACE OF SECURITY
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC” OR THE “DEPOSITARY”), TO UBS AG OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT NO PORTION OF THE ASSETS USED BY IT TO ACQUIRE OR HOLD THE SECURITY CONSTITUTES ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (C) PLAN SUBJECT TO PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (D) ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY OF THE FOREGOING TYPES OF PLANS, ACCOUNTS OR ARRANGEMENTS OR (II) THE ACQUISITION AND HOLDING OF THE SECURITY BY SUCH PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS.]
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UBS AG,
acting through its London branch
5.800% Fixed Rate Senior Notes due 2025
| No. [_] | USD [_] |
|---|---|
| CUSIP: 902674 ZV5 | |
| ISIN: US902674ZV55 |
UBS AG, a corporation duly organized and existing under the laws of Switzerland (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), acting through its London branch, for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [_] Dollars on September 11, 2025, and to pay interest thereon from September 11, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on March 11 and September 11 in each year, commencing March 11, 2024, at the rate of 5.800% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the 15th calendar day immediately preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register and, provided, further, that if this Security is a Global Security, payment may be made pursuant to the Applicable Procedures of the Depositary as permitted in said Indenture.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company, acting through its London branch, has caused this instrument to be duly executed.
| UBS ag, acting through its london branch, | ||
|---|---|---|
| By: | ||
| Name: | ||
| Title: | Authorized Person | |
| By: | ||
| Name: | ||
| Title: | Authorized Person |
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
| Date: | U.S. BANK TRUST NATIONAL ASSOCIATION, | |
|---|---|---|
| As Trustee | ||
| By: | ||
| Authorized Signatory |
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[REVERSE
OF NOTE]
UBS AG,
acting THROUGh its London branch
5.800% Fixed Rate Senior Notes due 2025
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of June 12, 2015, as amended and supplemented (the “Base Indenture”), and as further supplemented by the Seventh Supplemental Indenture, dated as of September 11, 2023 (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $1,000,000,000.
If an Event of Default (as defined in Section 2.03(a) of the Supplemental Indenture) with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
Payments under the Securities of this series will be made without withholding or deduction for or on account of any present or future tax, duty, assessment or governmental charge imposed upon or as a result of such payments by a Relevant Jurisdiction (as defined in Section 2.04(b) of the Supplemental Indenture) (“Taxes”), unless required by law. To the extent any such Taxes are so levied or imposed, the Company will, subject to the exceptions and limitations set forth in Section 2.04 of the Supplemental Indenture, pay such additional amounts (“Additional Amounts”) to the Holder of any Security who is not a resident of a Relevant Jurisdiction as may be necessary in order that every net payment of the principal of and interest on such Security and any other amounts payable on such Security, after withholding for or on account of such Taxes imposed upon or as a result of such payment, will not be less than the amount provided for in such Security to be then due and payable.
If at any time as a result of any change in or amendment to the laws or regulations of a Relevant Jurisdiction affecting taxation, or a change in any application or interpretation of such laws or regulations (including the decision of any court or tribunal) either generally or in relation to the Securities of this series, which change, amendment, application or interpretation becomes effective on or after September 5, 2023, in making any payment of, or in respect of, the principal amount of, or any premium or interest on, the Securities of this series, the Company would be required to pay any Additional Amounts with respect thereto, then the Securities of this series will be redeemable upon not less than 10 nor more than 60 days’ notice by mail, at any time thereafter, in whole but not in part, at the election of the Company as provided in the Indenture at their principal amount, together in the case of any such redemption with any accrued but unpaid interest to the Redemption Date.
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The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the securities of each series at the time Outstanding, on behalf of the Holders of all securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $200,000 and integral multiples of $1,000 thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
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This Security is a Global Security and is subject to the provisions of the Indenture relating to Global Securities, including the limitations in Section 305 thereof on transfers and exchanges of Global Securities.
This Security and the Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
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Exhibit 4.3
EXECUTION VERSION
UBS AG,
acting through its London branch
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
EIGHTH SUPPLEMENTAL INDENTURE
Dated as of September 11, 2023
To the Indenture, dated as of June 12, 2015,
Between UBS AG
and
U.S. Bank Trust National Association
$1,500,000,000 5.650 % Fixed Rate Senior Notes due 2028
Table of Contents
| Page | |||
|---|---|---|---|
| Article I | |||
| Definitions and Other Provisions of General Application | |||
| Section 1.01 | Definitions | 1 | |
| Section 1.02 | Effect of Headings | 2 | |
| Section 1.03 | Separability Clause | 2 | |
| Section 1.04 | Benefits of Instrument | 2 | |
| Section 1.05 | Relation to Base Indenture | 2 | |
| Section 1.06 | Construction and Interpretation | 3 | |
| Article II | |||
| Form and Terms of the Securities; Interest and Payments | |||
| Section 2.01 | Establishment of Securities; Form and Certain Terms of Securities | 3 | |
| Section 2.02 | Interest | 4 | |
| Section 2.03 | Events of Default; Collection of Indebtedness and Suits for Enforcement by Trustee | 4 | |
| Section 2.04 | Additional Amounts | 6 | |
| Section 2.05 | Issuing Branch Substitution | 8 | |
| Article III | |||
| consolidation, merger, conveyance, transfer or lease | |||
| Section 3.01 | Company May Consolidate, Etc., Only on Certain Terms | 8 | |
| Article IV | |||
| Miscellaneous Provisions | |||
| Section 4.01 | Effectiveness | 9 | |
| Section 4.02 | Original Issue | 9 | |
| Section 4.03 | Ratification and Integral Part | 10 | |
| Section 4.04 | Priority | 10 | |
| Section 4.05 | Successors and Assigns | 10 | |
| Section 4.06 | Counterparts | 10 | |
| Section 4.07 | Electronic Signatures. | 10 | |
| Section 4.08 | Governing Law | 10 | |
| EXHIBIT A | – | Form of 5.650% Fixed Rate Senior Notes due 2028 |
EIGHTH SUPPLEMENTAL INDENTURE, dated September 11, 2023 to the Indenture dated as of June 12, 2015, as supplemented and amended from time to time (the “Base Indenture”, as supplemented by this Eighth Supplemental Indenture, the “Indenture”), between UBS AG, a corporation duly organized and existing under the laws of Switzerland (herein called the “Company”), acting through its London branch, having its principal offices at Bahnhofstrasse 45, Zurich, Switzerland, and Aeschenvorstadt 1, Basel, Switzerland, and U.S. Bank Trust National Association, a national banking association duly organized and existing under the laws of the United States, as Trustee (herein called the “Trustee”).
Recitals of the Company
WHEREAS, the Company has heretofore made, executed and delivered to the Trustee the Base Indenture, providing for the issuance from time to time of the Company’s unsecured debentures, notes or other evidences of indebtedness (herein called the “securities”) to be issued in one or more series;
WHEREAS, Section 901(7) of the Base Indenture permits supplements thereto without the consent of Holders of securities to establish the form or terms of securities of any series as permitted by Sections 201 and 301 of the Base Indenture.
WHEREAS, as contemplated by Section 301 of the Base Indenture, the Company intends to, acting through its London branch, issue a new series of securities to be known as the “$1,500,000,000 5.650% Fixed Rate Senior Notes due 2028” (the “Securities”) under the Indenture.
WHEREAS, the Company has taken all necessary corporate action to authorize the execution and delivery by the Company, acting through its London branch, of this Supplemental Indenture.
Now, therefore, this supplemental indenture witnesseth:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities as follows:
Article I
Definitions and Other Provisions of General Application
Section 1.01 Definitions. Except as otherwise expressly provided or unless the context otherwise requires, all terms used in this Supplemental Indenture that are defined in the Base Indenture shall have the meanings ascribed to them in the Base Indenture. The following terms used in this Supplemental Indenture have the following respective meanings with respect to the Securities only:
“Additional Amounts” has the meaning set forth in Section 2.04(a).
“Base Indenture” has the meaning set forth in the first paragraph of this Supplemental Indenture.
“Branch” means any of the Company’s branches outside Switzerland.
“Business Day” means any weekday, other than one on which banking institutions are authorized or obligated by law, regulation or executive order to close in London, England or The City of New York, New York.
“Code” has the meaning set forth in Section 2.04(b).
“Company” has the meaning set forth in the first paragraph of this Supplemental Indenture, and includes any successor entity.
“FATCA withholding” has the meaning set forth in Section 2.04(b)
“Indenture” has the meaning set forth in the first paragraph of this Supplemental Indenture.
“Interest Payment Date” has the meaning set forth in Section 2.02(a).
“Issuing Branch Substitution” has the meaning set forth in Section 2.05.
“Issue Date” has the meaning set forth in Section 2.01.
“Maturity Date” has the meaning set forth in Section 2.01.
“Regular Record Date” means the 15th calendar day immediately preceding each Interest Payment Date.
“Relevant Date” has the meaning set forth in Section 2.04(b).
“Relevant Jurisdiction” has the meaning set forth in Section 2.04(b).
“Securities” has the meaning set forth in the Recitals.
“Supplemental Indenture” means this Eighth Supplemental Indenture.
“Taxes” has the meaning set forth in Section 2.04(a)
“Trustee” has the meaning set forth in the first paragraph of this Supplemental Indenture.
“UBS Head Office” means, the Company’s head offices in Basel and Zurich.
Section 1.02 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 1.03 Separability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.04 Benefits of Instrument. Nothing in this Supplemental Indenture, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 1.05 Relation to Base Indenture. This Supplemental Indenture constitutes an integral part of the Base Indenture. Notwithstanding any other provision of this Supplemental Indenture, all provisions of this Supplemental Indenture are expressly and solely for the benefit of the Holders and Beneficial Owners of the Securities and any such provisions shall not be deemed to apply to any other Securities issued under the Base Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any purpose other than with respect to the Securities.
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Section 1.06 Construction and Interpretation. Unless the context otherwise requires:
| (i) | the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Supplemental<br>Indenture, refer to this Supplemental Indenture as a whole and not to any particular provision of this Supplemental Indenture; |
|---|---|
| (ii) | the terms defined in the singular have a comparable meaning when used in the plural, and vice versa; |
| --- | --- |
| (iii) | references herein to a specific Section, Article or Exhibit refer to Sections or Articles of, or an Exhibit to, this Supplemental<br>Indenture; |
| --- | --- |
| (iv) | wherever the words “include”, “includes” or “including” are used in this Supplemental Indenture,<br>they shall be deemed to be followed by the words “without limitation;” |
| --- | --- |
| (v) | references to a Person are also to its successors and permitted assigns; |
| --- | --- |
| (vi) | the use of “or” is not intended to be exclusive unless expressly indicated otherwise; and |
| --- | --- |
| (vii) | references to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification<br>or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment. |
| --- | --- |
Article II
Form and Terms of the Securities; Interest and Payments
Section 2.01 Establishment of Securities; Form and Certain Terms of Securities.
(a) There is hereby established a new series of securities under the Base Indenture entitled the “$1,500,000,000 5.650% Fixed Rate Senior Notes due 2028”. The Securities shall be executed and delivered in substantially the form attached hereto as Exhibit A. The Securities shall be initially issued in the form of one or more Global Securities. The Company hereby designates the Depository Trust Company as the Depositary for the Securities.
(b) The Company, acting through its London branch, shall issue the Securities in an aggregate principal amount of $1,500,000,000 on September 11, 2023 (the “Issue Date”). The Company may issue additional Securities from time to time after the Issue Date in the manner and to the extent permitted by Section 301 of the Base Indenture.
(c) Principal shall be payable on September 11, 2028 in respect of the Securities (the “Maturity Date”). The Securities shall not have a sinking fund and are not redeemable at the option of the Holders.
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(d) Interest shall be payable on the Securities as provided in Section 2.02 and Additional Amounts shall be payable in respect of the Securities in accordance with Section 2.04.
(e) The Securities shall not be redeemable except as provided in Section 1108 of the Base Indenture (provided that the references therein to the definitions of Relevant Jurisdiction and Additional Amounts as set forth in Section 1007 of the Base Indenture shall, for purposes of the Securities, be deemed to refer to the definitions of such terms set forth Section 2.04 of this Supplemental Indenture).
(f) The Company hereby appoints the Trustee, acting through its office at 100 Wall Street, Suite 600, New York, NY 10005, to act as the initial Paying Agent for the Securities.
(g) The Securities constitute the direct, unconditional, unsecured and unsubordinated obligations of the Company ranking pari passu without any preference among themselves. In the event of the winding-up or administration of the Company, the Securities will rank paripassu with all of the other outstanding unsecured and unsubordinated obligations of the Company, present and future, except such obligations as are preferred by operation of law.
(h) Subject to Section 2.03 of this Supplemental Indenture, the Events of Default and remedies with respect to the Securities shall be limited as provided in Article 5 of the Base Indenture.
(i) The Securities shall be issued in denominations of $200,000 in principal amount and integral multiples of $1,000 in excess thereof.
Section 2.02 Interest.
(a) The Securities will bear interest from (and including) the Issue Date at a rate of 5.650% per annum. Interest on the principal amount of the Securities shall be payable semiannually in arrear on March 11 and September 11 of each year (each, an “Interest Payment Date”), commencing on March 11, 2024. If an Interest Payment Date would fall on a day that is not a Business Day, the related payment of interest otherwise payable on such date shall not be made on such date, but shall be made on the next succeeding Business Day with the same force and effect as if made on the applicable Interest Payment Date, and no interest shall accrue for the period from and after the applicable Interest Payment Date to such next succeeding Business Day. If the Maturity Date or date of redemption or repayment is not a Business Day, the payment of interest and principal and/or any amount payable upon redemption of the Securities will be made on the next succeeding Business Day, but interest on that payment shall not accrue during the period from and after such Maturity Date or date of redemption or repayment. Interest on the Securities shall be computed on the basis of a year of 360 days consisting of twelve months of thirty days each.
Section 2.03 Events of Default; Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) An “Event of Default” with respect to the Securities means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
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(1) default in the payment of any interest or principal upon any Security when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the performance, or breach, of any covenant or warranty of the Company in the Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 2.03(a) specifically dealt with or which has expressly been included in the Indenture solely for the benefit of series of securities other than the Securities), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(3) the entry by a court having jurisdiction of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Swiss bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(4) The commencement by the Company of a voluntary case or proceeding under any applicable Swiss bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Swiss bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Swiss law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the taking of corporate action by the Company in furtherance of any such action.
(b) The Company covenants that if an Event of Default specified in Section 2.03(a)(1) occurs and is continuing, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of the relevant Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If an Event of Default with respect to the Securities occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Securities by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in the Indenture or in aid of the exercise of any power granted therein, or to enforce any other proper remedy.
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(c) For purposes of the Securities, (i) Section 2.03(a) replaces Section 501 of the Base Indenture in its entirety, (ii) Section 2.03(b) replaces Section 502 of the Base Indenture in its entirety, (iii) a references to Section 501(5) and Section 501(6) of the Base Indenture, as set forth in Section 502 and Section 607 of the Base Indenture, shall be deemed to refer to Section 2.03(a)(3) and Section 2.03(a)(4), respectively, of this Supplemental Indenture and (iv) the reference to Section 501(4) of the Base Indenture, as set forth in Section 602 of the Base Indenture, shall be deemed to refer to Section 2.03(a)(2) of this Supplemental Indenture.
Section 2.04 Additional Amounts.
(a) Payments under the Securities will be made without deduction or withholding for or on account of any present or future tax, duty, assessment or governmental charge imposed upon or as a result of such payments by a Relevant Jurisdiction (“Taxes”), unless required by law. To the extent any such Taxes are so levied or imposed, the Company will, subject to the exceptions and limitations set forth below, pay such additional amounts (“Additional Amounts”) to the Holder of any Security who is not a resident of the Relevant Jurisdiction as may be necessary in order that every net payment of the principal of and interest on such Security and any other amounts payable on such Security, after withholding for or on account of such Taxes imposed upon or as a result of such payment, will not be less than the amount provided for in such Security to be then due and payable.
(b) Notwithstanding the provisions of Section 2.04(a), the Company will not be required to make any payment of Additional Amounts in relation to any Security:
(1) to a Holder who is liable to such Taxes on that Security as a result of having some connection with the Relevant Jurisdiction other than its mere ownership or possession of the Security or the receipt of principal or interest in respect thereof;
(2) that is presented for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to receive the Additional Amounts if it had presented the Security for payment on the last day of the 30-day period;
(3) where such withholding or deduction is imposed on a payment and is required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation proposed by the Swiss Federal Council on April 3, 2020, or otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying-agent-based system pursuant to which a Person other than the Company is required to withhold tax on any interest payments;
(4) on account of any such Taxes which would not have been so imposed but for the existence of any present or former connection between such Holder (or between a fiduciary, settler, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership or a corporation) and the United States including, without limitation, such Holder (or such fiduciary, settler, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein;
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(5) on account of any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, duty, assessment or governmental charge;
(6) on account of any Taxes which are payable otherwise than by withholding or deduction from payments on or in respect of any Security;
(7) on account of any Taxes which would not have been imposed but for the failure of a Holder, or any intermediary, custodian or broker, to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of such Security, if such compliance is required by statute or by regulation of or on behalf of the United States as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(8) on account of any Taxes imposed solely because the Holder is a bank purchasing the Security in the ordinary course of its lending business;
(9) on account of any Taxes required to be deducted or withheld by any paying agent from a payment on the Security if such payment can be made without such deduction or withholding by a paying agent other than the one required to make such a deduction or withholding;
(10) on account of any Taxes imposed on (A) a Holder that actually or constructively owns 10% or more of the combined voting power of all classes of stock of the Company entitled to vote; or (B) contingent interest as described in section 871(h)(4) of the Code; or
(11) any combination of (1) through (10) above;
nor shall Additional Amounts be paid with respect to any payment on a Security to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder of the Security.
“Relevant Date” means the date on which the payment first becomes due. If the full amount of the moneys payable on the due date has not been received by the Trustee on or before the due date, then “Relevant Date” means the date on which notice to the effect that the full amount of the money due has been received by the Trustee is given to Holders.
“Relevant Jurisdiction” means United Kingdom and Switzerland.
Notwithstanding any other provisions contained herein, the Company shall be permitted to withhold or deduct any amounts required by the rules of Section 871(m) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor provisions (relating to withholding or dividend equivalents) or Sections 1471 through 1474 of the Code, or any amended or successor provisions, pursuant to any inter-governmental agreement or implementing legislation adopted by another jurisdiction in connection with these provisions, or pursuant to any agreement with the U.S. Internal Revenue Service (“FATCA withholding”) as a result of a holder, beneficial owner or an intermediary not being entitled to receive payments free of FATCA withholding. The Company will have no obligation to pay additional amounts or otherwise indemnify an investor for any such withholding deducted or withheld by the Company, the Paying Agent, the Trustee, or any other party.
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(c) The provisions of this Section 2.04 shall also apply to any Taxes imposed by (i) any jurisdiction in which a Person into which the Company has merged or to which the Company has conveyed, transferred or leased its property is a resident for tax purposes, and (ii) after giving effect to any Issuing Branch Substitution (unless Company is acting through UBS Head Office immediately after giving effect to such Issuing Branch Substitution), the jurisdiction of establishment of the Branch through which the Company is acting immediately after giving effect to such Issuing Branch Substitution, and, in each case, such jurisdiction shall thereafter be treated in the same manner as a Relevant Jurisdiction for purposes of this Section 2.04.
(d) For purposes of this Section 2.04, any references to principal of and/or interest on the Securities shall be deemed to include a reference to any relevant premium and/or Additional Amounts payable in respect of such Securities.
(e) For purposes of the Securities, this Section 2.04 replaces Section 1007 of the Base Indenture in its entirety and all references to Section 1007 of the Base Indenture shall be deemed to refer to this Section 2.04.
Section 2.05 Issuing Branch Substitution.
The Company may, without the consent of Holders, upon giving no more than 30 and no less than 10 days’ notice to Holders, at any time, (i) cease to make payments of principal, interest and any other amounts due under the Securities then outstanding and fulfil any of its other obligations and exercise any of its other rights and powers in respect of, or arising under, the Securities then outstanding through the Branch or the UBS Head Office, as applicable, through which it is acting at the time of the relevant notice, and (ii) commence making such payments, fulfilling such other obligations and exercising such powers and rights through another Branch or the UBS Head Office (if the Company was not acting through UBS Head Office at the time of the relevant notice) as designated in the relevant notice (an “Issuing Branch Substitution”), provided that, as of the time of giving the relevant notice, (A) the Company is not in default in respect of any amount payable under the Securities, and (B) the Company would not be required to pay any Additional Amounts under the terms of the Securities after giving effect to such Issuing Branch Substitution that it would not have been required to pay if such Issuing Branch Substitution were not to occur.
Article III
consolidation, merger, conveyance, transfer or lease
Section 3.01 Company May Consolidate, Etc., Only on Certain Terms.
(a) The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless:
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(1) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of the Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Company would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by the Indenture, the Company or such successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Section 3.01(a) and that all conditions precedent herein provided for relating to such transaction have been complied with.
(b) For purposes of the Securities, (i) Section 3.01(a) replaces Section 801 of the Base Indenture in its entirety, (ii) any references to Section 801 of the Base Indenture, as set forth in Section 802 and Section 803 of the Base Indenture, shall be deemed to refer to Section 3.01(a) of this Supplemental Indenture and (iii) any reference to Section 801(3) of the Base Indenture, as set forth in Section 1303 of the Base Indenture, shall be deemed to refer to Section 3.01(a)(3) of this Supplemental Indenture.
Article IV
Miscellaneous Provisions
Section 4.01 Effectiveness. This Supplemental Indenture shall become effective upon its execution and delivery.
Section 4.02 Original Issue. The Securities may, upon execution of this Supplemental Indenture, be executed by the Company and delivered by the Company to the Trustee for authentication, and the Trustee shall, upon delivery of a Company Order, authenticate and deliver such Securities as in such Company Order provided.
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Section 4.03 Ratification and Integral Part. The Base Indenture as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, including without limitation all the rights, immunities and indemnities of the Trustee, and this Supplemental Indenture shall be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided.
Section 4.04 Priority. This Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. The provisions of this Supplemental Indenture shall, with respect to the Securities and subject to the terms hereof, supersede the provisions of the Base Indenture to the extent the Base Indenture is inconsistent herewith.
Section 4.05 Successors and Assigns. All covenants and agreements in the Base Indenture, as supplemented by this Supplemental Indenture, by the Company shall bind its successors and assigns, whether so expressed or not.
Section 4.06 Counterparts. This Supplemental Indenture may be executed (by way of manual, facsimile or electronic (including, without limitation, DocuSign and AdobeSign and other similar applications) signature) in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 4.07 Electronic Signatures. All notices, approvals, consents and any communications hereunder must be in writing (provided that any communication sent to Trustee hereunder must be in the form of a document that is signed by way of a manual or facsimile signature, or by way of an electronic or digital signature provided by a digital signature provider (including, without limitation, DocuSign, AdobeSign and other similar providers), in English. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to Trustee, including the risk of interception and misuse by third parties, provided that the Company shall only assume the risk of the Trustee acting on unauthorized instructions where the Trustee acts in good faith and without gross negligence. For purposes of the Securities, any references to “manual or facsimile” signatures, as set forth in Section 303 of the Base Indenture, shall be deemed to refer to “manual, facsimile or electronic (including, without limitation, DocuSign, AdobeSign and other similar digital signature providers)” signatures.
Section 4.08 Governing Law. This Supplemental Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth Supplemental Indenture to be duly executed, all as of the day and year above written.
| UBS AG, acting through its london branch | ||
|---|---|---|
| By: | /s/ Kevin Tillotson | |
| Name: | Kevin Tillotson | |
| Title: | Executive Director | |
| By: | /s/ Daniel Taylor | |
| Name: | Daniel Taylor | |
| Title: | Associate Director | |
| U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Michelle Lee | |
| Name: | Michelle Lee | |
| Title: | Vice President |
Signature Page to the Eighth Supplemental Indenture
Exhibit A
Form of Security
FACE OF SECURITY
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC” OR THE “DEPOSITARY”), TO UBS AG OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT NO PORTION OF THE ASSETS USED BY IT TO ACQUIRE OR HOLD THE SECURITY CONSTITUTES ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (C) PLAN SUBJECT TO PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (D) ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY OF THE FOREGOING TYPES OF PLANS, ACCOUNTS OR ARRANGEMENTS OR (II) THE ACQUISITION AND HOLDING OF THE SECURITY BY SUCH PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS.]
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UBS AG,
acting through its London branch
5.650% Fixed Rate Senior Notes due 2028
| No. [_] | USD [_] |
|---|---|
| CUSIP: 902674 ZW3 | |
| ISIN: US902674ZW39 |
UBS AG, a corporation duly organized and existing under the laws of Switzerland (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), acting through its London branch, for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [_] Dollars on September 11, 2028, and to pay interest thereon from September 11, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on March 11 and September 11 in each year, commencing March 11, 2024, at the rate of 5.650% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the 15th calendar day immediately preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register and, provided, further, that if this Security is a Global Security, payment may be made pursuant to the Applicable Procedures of the Depositary as permitted in said Indenture.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company, acting through its London branch, has caused this instrument to be duly executed.
| UBS ag, acting through its london branch, | ||
|---|---|---|
| By: | ||
| Name: | ||
| Title: | Authorized Person | |
| By: | ||
| Name: | ||
| Title: | Authorized Person |
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
| Date: | U.S. BANK TRUST NATIONAL ASSOCIATION, | |
|---|---|---|
| As Trustee | ||
| By: | ||
| Authorized Signatory |
A-2-4
[REVERSE
OF NOTE]
UBS AG,
acting THROUGh its london branch
5.650% Fixed Rate Senior Notes due 2028
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of June 12, 2015, as amended and supplemented (the “Base Indenture”), and as further supplemented by the Eighth Supplemental Indenture, dated as of September 11, 2023 (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $1,500,000,000.
If an Event of Default (as defined in Section 2.03(a) of the Supplemental Indenture) with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
Payments under the Securities of this series will be made without withholding or deduction for or on account of any present or future tax, duty, assessment or governmental charge imposed upon or as a result of such payments by a Relevant Jurisdiction (as defined in Section 2.04(b) of the Supplemental Indenture) (“Taxes”), unless required by law. To the extent any such Taxes are so levied or imposed, the Company will, subject to the exceptions and limitations set forth in Section 2.04 of the Supplemental Indenture, pay such additional amounts (“Additional Amounts”) to the Holder of any Security who is not a resident of a Relevant Jurisdiction as may be necessary in order that every net payment of the principal of and interest on such Security and any other amounts payable on such Security, after withholding for or on account of such Taxes imposed upon or as a result of such payment, will not be less than the amount provided for in such Security to be then due and payable.
If at any time as a result of any change in or amendment to the laws or regulations of a Relevant Jurisdiction affecting taxation, or a change in any application or interpretation of such laws or regulations (including the decision of any court or tribunal) either generally or in relation to the Securities of this series, which change, amendment, application or interpretation becomes effective on or after September 5, 2023, in making any payment of, or in respect of, the principal amount of, or any premium or interest on, the Securities of this series, the Company would be required to pay any Additional Amounts with respect thereto, then the Securities of this series will be redeemable upon not less than 10 nor more than 60 days’ notice by mail, at any time thereafter, in whole but not in part, at the election of the Company as provided in the Indenture at their principal amount, together in the case of any such redemption with any accrued but unpaid interest to the Redemption Date.
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The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the securities of each series at the time Outstanding, on behalf of the Holders of all securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of $200,000 and integral multiples of $1,000 thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
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This Security is a Global Security and is subject to the provisions of the Indenture relating to Global Securities, including the limitations in Section 305 thereof on transfers and exchanges of Global Securities.
This Security and the Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
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Exhibit 4.4
EXECUTION VERSION
UBS AG,
acting through its London branch
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
NINTH SUPPLEMENTAL INDENTURE
Dated as of September 11, 2023
To the Indenture, dated as of June 12, 2015,
Between UBS AG
and
U.S. Bank Trust National Association
$500,000,000 Floating Rate Senior Notes due 2025
Table of Contents
| Article I | ||
| Definitions and Other Provisions of General Application | ||
| Section 1.01 | Definitions | |
| Section 1.02 | Effect of Headings | |
| Section 1.03 | Separability Clause | |
| Section 1.04 | Benefits of Instrument | |
| Section 1.05 | Relation to Base Indenture | |
| Section 1.06 | Construction and Interpretation | |
| Article II | ||
| Form and Terms of the Securities; Interest and Payments | ||
| Section 2.01 | Establishment of Securities; Form and Certain Terms of Securities | |
| Section 2.02 | Interest | |
| Section 2.03 | Events of Default; Collection of Indebtedness and Suits for Enforcement by Trustee | |
| Section 2.04 | Additional Amounts | |
| Section 2.05 | Issuing Branch Substitution | |
| Article III | ||
| consolidation, merger, conveyance, transfer or lease | ||
| Section 3.01 | Company May Consolidate, Etc., Only on Certain Terms | |
| Article IV | ||
| Miscellaneous Provisions | ||
| Section 4.01 | Effectiveness | |
| Section 4.02 | Original Issue | |
| Section 4.03 | Ratification and Integral Part | |
| Section 4.04 | Priority | |
| Section 4.05 | Successors and Assigns | |
| Section 4.06 | Counterparts | |
| Section 4.07 | Electronic Signatures | |
| Section 4.08 | Governing Law | |
| EXHIBIT A | – | Form of 500,000,000 Floating Rate Senior Notes due 2025 |
All values are in US Dollars.
NINTH SUPPLEMENTAL INDENTURE, dated September 11, 2023, to the Indenture dated as of June 12, 2015, as supplemented and amended from time to time (the “Base Indenture”, as supplemented by this Ninth Supplemental Indenture, the “Indenture”), between UBS AG, a corporation duly organized and existing under the laws of Switzerland (herein called the “Company”), acting through its London branch, having its principal offices at Bahnhofstrasse 45, Zurich, Switzerland, and Aeschenvorstadt 1, Basel, Switzerland, and U.S. Bank Trust National Association, a national banking association duly organized and existing under the laws of the United States, as Trustee (herein called the “Trustee”).
Recitals of the Company
WHEREAS, the Company has heretofore made, executed and delivered to the Trustee the Base Indenture, providing for the issuance from time to time of the Company’s unsecured debentures, notes or other evidences of indebtedness (herein called the “securities”) to be issued in one or more series;
WHEREAS, Section 901(7) of the Base Indenture permits supplements thereto without the consent of Holders of securities to establish the form or terms of securities of any series as permitted by Sections 201 and 301 of the Base Indenture.
WHEREAS, as contemplated by Section 301 of the Base Indenture, the Company intends to, acting through its London branch, issue a new series of securities to be known as the “$500,000,000 Floating Rate Senior Notes due 2025” (the “Securities”) under the Indenture.
WHEREAS, the Company has taken all necessary corporate action to authorize the execution and delivery by the Company, acting through its London branch, of this Supplemental Indenture.
Now, therefore, this supplemental indenture witnesseth:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities as follows:
Article I
Definitions and Other Provisions of General Application
Section 1.01 Definitions. Except as otherwise expressly provided or unless the context otherwise requires, all terms used in this Supplemental Indenture that are defined in the Base Indenture shall have the meanings ascribed to them in the Base Indenture. The following terms used in this Supplemental Indenture have the following respective meanings with respect to the Securities only:
“Additional Amounts” has the meaning set forth in Section 2.04(a).
“Base Indenture” has the meaning set forth in the first paragraph of this Supplemental Indenture.
“Benchmark Replacement Conforming Changes” has the meaning set forth in Section 2.02(f)(ii).
“Branch” means any of the Company’s branches outside Switzerland.
“Business Day” means any weekday, other than one on which banking institutions are authorized or obligated by law, regulation or executive order to close in London, England or The City of New York, New York.
“Calculation Agent” means U.S. Bank Trust National Association, or its successor, appointed by the Company pursuant to the Calculation Agent Agreement between the Company and U.S. Bank Trust National Association, dated as of the date hereof.
“Code” has the meaning set forth in Section 2.04(b).
“Company” has the meaning set forth in the first paragraph of this Supplemental Indenture, and includes any successor entity.
“Compounded Daily SOFR” means, with respect to a Floating Rate Interest Period, the rate calculated by the Calculation Agent on the relevant Interest Determination Date in accordance with the following formula (and the resulting percentage will be rounded if necessary to the fifth decimal place, with 0.000005 being rounded upwards):
where:
“d” means the number of calendar days in the relevant SOFR Observation Period;
“do” means the number of U.S. Government Securities Business Days in the relevant SOFR Observation Period;
“i” means a series of whole numbers from 1 to do, each representing the relevant U.S. Government Securities Business Days in chronological order from, and including, the first U.S. Government Securities Business Day in the relevant SOFR Observation Period;
“ni” means, for any U.S. Government Securities Business Day “i” in the relevant SOFR Observation Period, the number of days from (and including) such U.S. Government Securities Business Day “i” to but excluding the following U.S. Government Securities Business Day;
“SOFRi” means, in respect of any U.S. Government Securities Business Day “i” in the relevant SOFR Observation Period, SOFR in respect of such U.S. Government Securities Business Day.
“Corresponding Tenor” means, with respect to a SOFR Benchmark Replacement, a tenor (including overnight) having approximately the same length (disregarding any applicable business day convention) as the applicable tenor for the then-current SOFR Benchmark.
“FATCA withholding” has the meaning set forth in Section 2.04(b).
“Floating Interest Rate” has the meaning set forth in Section 2.02(a).
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“Floating Rate Interest Period” has the meaning set forth in Section 2.02(c).
“Floating Rate Margin” has the meaning set forth in Section 2.02(a).
“Indenture” has the meaning set forth in the first paragraph of this Supplemental Indenture.
“Interest Determination Date” means, in respect of any Floating Rate Interest Period, the date falling two U.S. Government Securities Business Day (as defined below) prior to the applicable Interest Payment Date (or, in the case of the redemption or acceleration of the Securities, prior to the applicable date of redemption or acceleration).
“Interest Payment Date” has the meaning set forth in Section 2.02(a).
“ISDA” means the International Swaps and Derivatives Association, Inc. (or any successor).
“ISDA Definitions” means the 2021 ISDA Interest Rate Definitions (including the relevant matrix and any successor matrix thereto) published by ISDA as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means, with respect to any ISDA Fallback Rate, the spread adjustment, which may be a positive or negative value or zero, that would be applied to such ISDA Fallback Rate in the case of derivatives transactions referencing the ISDA Definitions that will be effective upon the occurrence of an index cessation event with respect to the then-current SOFR Benchmark for the applicable tenor.
“ISDA Fallback Rate” means, with respect to the then-current SOFR Benchmark, the rate that would apply for derivatives transactions referencing the ISDA Definitions that will be effective upon the occurrence of an index cessation date with respect to the then-current SOFR Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“Issue Date” has the meaning set forth in Section 2.01.
“Issuing Branch Substitution” has the meaning set forth in Section 2.05.
“Maturity Date” has the meaning set forth in Section 2.01.
“Minimum Rate” has the meaning set forth in Section 2.02(a).
“New York Federal Reserve’s Website” means the website of the Federal Reserve Bank of New York, which is currently at http://www.newyorkfed.org/, or any successor website of the Federal Reserve Bank of New York.
“Reference Time” means (1) if the SOFR Benchmark is Compounded Daily SOFR, for any U.S. Government Securities Business Day, the SOFR Determination Time for such U.S. Government Securities Business Day, and (2) if the SOFR Benchmark is not Compounded Daily SOFR, the time determined by the Company or its designee in accordance with the SOFR Benchmark Replacement Conforming Changes.
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“Regular Record Date” means the 15th calendar day immediately preceding each Interest Payment Date.
“Relevant Date” has the meaning set forth in Section 2.04(b).
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York or any successor thereto.
“Relevant Jurisdiction” has the meaning set forth in Section 2.04(b).
“Securities” has the meaning set forth in the Recitals.
“SOFR” means, in respect of any U.S. Government Securities Business Day, the rate determined by the Calculation Agent as follows:
(1) the daily Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day appearing on the New York Federal Reserve’s Website at or around 3:00 p.m. (New York time) on the immediately following U.S. Government Securities Business Day (the “SOFR Determination Time”); or
(2) if the rate specified in (1) above is not available at or around the SOFR Determination Time for such U.S. Government Securities Business Day (and a SOFR Benchmark Transition Event and its related SOFR Benchmark Replacement Date have not occurred), the daily Secured Overnight Financing Rate in respect of the last U.S. Government Securities Business Day for which such rate was published on the New York Federal Reserve’s Website.
“SOFR Benchmark” means, initially, Compounded Daily SOFR, provided that if a SOFR Benchmark Transition Event and its related SOFR Benchmark Replacement Date have occurred with respect to Compounded Daily SOFR (or the published SOFR used in the calculation thereof) or such other then-current SOFR Benchmark, then SOFR Benchmark means the applicable SOFR Benchmark Replacement.
“SOFR Benchmark Replacement” means, with respect to the then-current SOFR Benchmark, the first alternative set forth in the order presented below that can be determined by the Company or its designee, as of the SOFR Benchmark Replacement Date:
(1) the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current SOFR Benchmark for the applicable Corresponding Tenor and (b) the SOFR Benchmark Replacement Adjustment; or
(2) the sum of: (a) the ISDA Fallback Rate and (b) the SOFR Benchmark Replacement Adjustment; or
(3) the sum of: (a) the alternate rate of interest that has been selected by the Company or its designee as the replacement for the then-current SOFR Benchmark for the applicable Corresponding Tenor, giving due consideration to any industry-accepted rate of interest as a replacement for the then-current SOFR Benchmark for U.S. dollar-denominated floating rate notes at such time, and (b) the SOFR Benchmark Replacement Adjustment.
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“SOFR Benchmark Replacement Adjustment” means, with respect to any SOFR Benchmark Replacement, the first alternative set forth in the order below that can be determined by the Company or its designee as of the SOFR Benchmark Replacement Date:
(1) the spread adjustment (which may be a positive or negative value or zero), or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted SOFR Benchmark Replacement; or
(2) if the applicable Unadjusted SOFR Benchmark Replacement is equivalent to the ISDA Fallback Rate, the ISDA Fallback Adjustment; or
(3) the spread adjustment, which may be a positive or negative value or zero, that has been selected by the Company or its designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current SOFR Benchmark with the applicable Unadjusted SOFR Benchmark Replacement for U.S. dollar denominated floating rate notes at such time;
“SOFR Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current SOFR Benchmark (including any daily published component used in the calculation thereof):
(1) in the case of clause (1) or (2) of the definition of the term “SOFR Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the SOFR Benchmark (or such component) permanently or indefinitely ceases to provide the SOFR Benchmark (or such component); or
(2) in the case of clause (3) of the definition of the term “SOFR Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
If the event giving rise to the SOFR Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the SOFR Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination;
“SOFR Benchmark Transition Event” means, the occurrence of one or more of the following events with respect to the then-current SOFR Benchmark (including the daily published component used in the calculation thereof):
(1) a public statement or publication of information by or on behalf of the administrator of the SOFR Benchmark (or such component) announcing that such administrator has ceased or will cease to provide the SOFR Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the SOFR Benchmark (or such component);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of the SOFR Benchmark (or such component), the central bank for the currency of the SOFR Benchmark (or such component), an insolvency official with jurisdiction over the administrator for the SOFR Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the SOFR Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the SOFR Benchmark (or such component) that states that the administrator of the SOFR Benchmark (or such component) has ceased or will cease to provide the SOFR Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the SOFR Benchmark (or such component); or
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(3) a public statement or publication of information by the regulatory supervisor for the administrator of the SOFR Benchmark announcing that the SOFR Benchmark is no longer representative.
“SOFR Determination Time” has the meaning set forth in the definition of “SOFR”.
“SOFR Observation Period” means, in respect of any Floating Rate Interest Period, the period from (and including) the date falling two U.S. Government Securities Business Days prior to the first day of such Floating Rate Interest Period to (but excluding) the Interest Determination Date relating to such Floating Rate Interest Period.
“Supplemental Indenture” means this Ninth Supplemental Indenture.
“Taxes” has the meaning set forth in Section 2.04(a)
“Trustee” has the meaning set forth in the first paragraph of this Supplemental Indenture.
“UBS Head Office” means, the Company’s head offices in Basel and Zurich.
“Unadjusted SOFR Benchmark Replacement” means the SOFR Benchmark Replacement excluding the SOFR Benchmark Replacement Adjustment.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
Section 1.02 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 1.03 Separability Clause. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.04 Benefits of Instrument. Nothing in this Supplemental Indenture, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 1.05 Relation to Base Indenture. This Supplemental Indenture constitutes an integral part of the Base Indenture. Notwithstanding any other provision of this Supplemental Indenture, all provisions of this Supplemental Indenture are expressly and solely for the benefit of the Holders and Beneficial Owners of the Securities and any such provisions shall not be deemed to apply to any other Securities issued under the Base Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any purpose other than with respect to the Securities.
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Section 1.06 Construction and Interpretation. Unless the context otherwise requires:
| (a) | the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Supplemental<br>Indenture, refer to this Supplemental Indenture as a whole and not to any particular provision of this Supplemental Indenture; |
|---|---|
| (b) | the terms defined in the singular have a comparable meaning when used in the plural, and vice versa; |
| --- | --- |
| (c) | references herein to a specific Section, Article or Exhibit refer to Sections or Articles of, or an Exhibit to, this Supplemental<br>Indenture; |
| --- | --- |
| (d) | wherever the words “include”, “includes” or “including” are used in this Supplemental Indenture,<br>they shall be deemed to be followed by the words “without limitation;” |
| --- | --- |
| (e) | references to a Person are also to its successors and permitted assigns; |
| --- | --- |
| (f) | the use of “or” is not intended to be exclusive unless expressly indicated otherwise; and |
| --- | --- |
| (g) | references to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification<br>or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment. |
| --- | --- |
Article II
Form and Terms of the Securities; Interest and Payments
Section 2.01 Establishment of Securities; Form and Certain Terms of Securities.
(a) There is hereby established a new series of securities under the Base Indenture entitled the “$500,000,000 Floating Rate Senior Notes due 2025”. The Securities shall be executed and delivered in substantially the form attached hereto as Exhibit A. The Securities shall be initially issued in the form of one or more Global Securities. The Company hereby designates the Depository Trust Company as the Depositary for the Securities.
(b) The Company, acting through its London branch, shall issue the Securities in an aggregate principal amount of $500,000,000 on September 11, 2023 (the “Issue Date”). The Company may issue additional Securities from time to time after the Issue Date in the manner and to the extent permitted by Section 301 of the Base Indenture.
(c) Principal shall be payable on September 11, 2025, in respect of the Securities (the “Maturity Date”). The Securities shall not have a sinking fund and are not redeemable at the option of the Holders.
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(d) Interest shall be payable on the Securities as provided in Section 2.02 and Additional Amounts shall be payable in respect of the Securities in accordance with Section 2.04.
(e) The Securities shall not be redeemable except as provided in Section 1108 of the Base Indenture (provided that the references therein to the definitions of Relevant Jurisdiction and Additional Amounts as set forth in Section 1007 of the Base Indenture shall, for purposes of the Securities, be deemed to refer to the definitions of such terms set forth in Section 2.04 of this Supplemental Indenture).
(f) The Company hereby appoints the Trustee, acting through its office at 100 Wall Street, Suite 600, New York, NY 10005, to act as the initial Paying Agent for the Securities.
(g) The Securities constitute the direct, unconditional, unsecured and unsubordinated obligations of the Company ranking pari passu without any preference among themselves. In the event of the winding-up or administration of the Company, the Securities will rank paripassu with all of the other outstanding unsecured and unsubordinated obligations of the Company, present and future, except such obligations as are preferred by operation of law.
(h) Subject to Section 2.03 of this Supplemental Indenture, the Events of Default and remedies with respect to the Securities shall be limited as provided in Article 5 of the Base Indenture.
(i) The Securities shall be issued in denominations of $200,000 in principal amount and integral multiples of $1,000 in excess thereof.
Section 2.02 Interest.
(a) The Securities will bear interest during each Floating Rate Interest Period at a rate per annum equal to Compounded Daily SOFR, with respect to such Floating Rate Interest Period, as determined by the Calculation Agent on the applicable Interest Determination Date, plus 0.93% per annum (the “Floating Rate Margin”) (together, the “Floating Interest Rate”), provided that the Floating Interest Rate with respect to any Floating Rate Interest Period shall be subject to a minimum rate per annum of 0.00% (the “Minimum Rate”).
(b) Interest on the principal amount of the Securities shall be payable quarterly in arrears on March 11, June 11, September 11 and December 11 of each year (each, as may be adjusted, an “Interest Payment Date”), commencing on December 11, 2023. If any scheduled Interest Payment Date, other than the Maturity Date with respect to the Securities would fall on a day that is not a Business Day, the Interest Payment Date will be postponed to the next succeeding Business Day, except that if that Business Day falls in the next succeeding calendar month, the Interest Payment Date will be the immediately preceding Business Day.
(c) Each interest period for the Securities (each, a “Floating Rate Interest Period”) will begin on (and include) an Interest Payment Date (or, in the case of the first Floating Rate Interest Period, the Issue Date) and end on (but exclude) the following Interest Payment Date (or, in the case of the redemption or acceleration of the Securities, the relevant date of redemption or acceleration). Interest on the Securities will be computed on the basis of the actual number of days in each Floating Rate Interest Period (or any other relevant period) and a 360-day year.
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(d) On the applicable Interest Determination Date, the Calculation Agent will determine the Floating Interest Rate for each Floating Rate Interest Period for the Securities. Promptly upon such determination, the Calculation Agent will notify the Company and the Trustee (if the Calculation Agent is not the Trustee) of the applicable Floating Interest Rate for the Securities. Upon the request of the holder of any Security, the Calculation Agent will provide the Floating Rate Interest Rate as determined for the most recent applicable Floating Rate Interest Period.
(e) Notwithstanding anything to the contrary in the Indenture or the terms of the Securities, if the Company or its designee determine on or prior to the relevant Reference Time that a SOFR Benchmark Transition Event and its related SOFR Benchmark Replacement Date have occurred with respect to determining SOFR, then the provisions set forth in Section 2.02(f) will thereafter apply to all determinations of the rate of interest applicable on the Securities. For the avoidance of doubt, in accordance with the provisions set forth in Section 2.02(f), after a SOFR Benchmark Transition Event and its related SOFR Benchmark Replacement Date have occurred, the Floating Interest Rate for each Floating Rate Interest Period on the Securities will be an annual rate equal to the sum of the Benchmark Replacement plus the Floating Rate Margin, subject to the Minimum Rate.
(f) Benchmark Transition Provisions.
(i) If the Company or its designee determine that a SOFR Benchmark Transition Event and its related SOFR Benchmark Replacement Date have occurred on or prior to the Reference Time in respect of any determination of the SOFR Benchmark on any date, the SOFR Benchmark Replacement will replace the then-current SOFR Benchmark for all purposes relating to the Securities in respect of such determination on such date and all determinations on all subsequent dates; provided that, if the Company or its designee are unable to or do not determine a SOFR Benchmark Replacement in accordance with the provisions below prior to 5:00 p.m. (New York time) on the relevant Interest Determination Date, the interest rate for the related Floating Rate Interest Period will be equal to the interest rate in effect for the immediately preceding Floating Rate Interest Period.
(ii) In connection with the implementation of a SOFR Benchmark Replacement, the Company or its designee will have the right to make changes to (1) any Interest Determination Date, Interest Payment Date, Reference Time, business day convention or Floating Rate Interest Period, (2) the manner, timing and frequency of determining the rate and amounts of interest that are payable on the Securities and the conventions relating to such determination and calculations with respect to interest, (3) rounding conventions, (4) tenors and (5) any other terms or provisions of the Securities, in each case that the Company or its designee determine, from time to time, to be appropriate to reflect the determination and implementation of such SOFR Benchmark Replacement in a manner substantially consistent with market practice (or, if the Company or its designee decide that implementation of any portion of such market practice is not administratively feasible or determine that no market practice for use of the SOFR Benchmark Replacement exists, in such other manner as the Company or its designee (in consultation with the Company) determine is appropriate (acting in good faith)) (the “Benchmark Replacement Conforming Changes”). Any Benchmark Replacement Conforming Changes will apply to the Securities for all future Floating Rate Interest Periods.
(iii) The Company will promptly give notice of the determination of the SOFR Benchmark Replacement, the SOFR Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes to the Trustee, any paying agent, the Calculation Agent and the holders of the Securities, provided that failure to provide such notice will have no impact on the effectiveness of, or otherwise invalidate, any such determination.
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(iv) All determinations, decisions, elections and calculations made by the Company, the Calculation Agent or the Company’s designee for purposes of calculating the applicable interest on the Securities or pursuant to the benchmark replacement provisions described herein, including any determination with respect to tenor, rate or adjustment, or the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection will be conclusive and binding on the holders of the Securities, the Company, the Trustee and any paying agent, absent manifest error. None of the Company, the Calculation Agent, the Trustee or any paying agent shall be responsible for determining whether manifest error has occurred or any liability therefor. If made by the Company, such determinations, decisions, elections and calculations will be made in its sole discretion. If made by a designee of the Company, such determinations, decisions, elections and calculations will be made after consulting with the Company, and the Company’s designees will not make any such determination, decision, election or calculation to which the Company objects. Notwithstanding anything to the contrary in the Indenture or the Securities, any determinations, decisions, calculations or elections made in accordance with this provision will become effective without consent from the holders of the Securities or any other party.
(v) Any determination, decision or election relating to the SOFR Benchmark not made by the Calculation Agent will be made on the basis described above. The Calculation Agent shall have no liability for not making any such determination, decision or election. In addition, the Company may designate an entity (which may be an affiliate of the Company) to make any determination, decision or election that the Company has the right to make in connection with the determination of the SOFR Benchmark.
Section 2.03 Events of Default; Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) An “Event of Default” with respect to the Securities means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest or principal upon any Security when it becomes due and payable, and continuance of such default for a period of 30 days; or
(ii) default in the performance, or breach, of any covenant or warranty of the Company in the Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 2.03(a) specifically dealt with or which has expressly been included in the Indenture solely for the benefit of series of securities other than the Securities), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(iii) the entry by a court having jurisdiction of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Swiss bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
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(iv) The commencement by the Company of a voluntary case or proceeding under any applicable Swiss bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Swiss bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Swiss law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the taking of corporate action by the Company in furtherance of any such action.
(b) The Company covenants that if an Event of Default specified in Section 2.03(a)(i) occurs and is continuing, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of the relevant Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If an Event of Default with respect to the Securities occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Securities by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in the Indenture or in aid of the exercise of any power granted therein, or to enforce any other proper remedy.
(c) For purposes of the Securities, (i) Section 2.03(a) replaces Section 501 of the Base Indenture in its entirety, (ii) Section 2.03(b) replaces Section 502 of the Base Indenture in its entirety, (iii) a references to Section 501(5) and Section 501(6) of the Base Indenture, as set forth in Section 502 and Section 607 of the Base Indenture, shall be deemed to refer to Section 2.03(a)(iii) and Section 2.03(a)(iv), respectively, of this Supplemental Indenture and (iv) the reference to Section 501(4) of the Base Indenture, as set forth in Section 602 of the Base Indenture, shall be deemed to refer to Section 2.03(a)(ii) of this Supplemental Indenture.
Section 2.04 Additional Amounts.
(a) Payments under the Securities will be made without deduction or withholding for or on account of any present or future tax, duty, assessment or governmental charge imposed upon or as a result of such payments by a Relevant Jurisdiction (“Taxes”), unless required by law. To the extent any such Taxes are so levied or imposed, the Company will, subject to the exceptions and limitations set forth below, pay such additional amounts (“Additional Amounts”) to the Holder of any Security who is not a resident of the Relevant Jurisdiction as may be necessary in order that every net payment of the principal of and interest on such Security and any other amounts payable on such Security, after withholding for or on account of such Taxes imposed upon or as a result of such payment, will not be less than the amount provided for in such Security to be then due and payable.
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(b) Notwithstanding the provisions of Section 2.04(a), the Company will not be required to make any payment of Additional Amounts in relation to any Security:
(i) to a Holder who is liable to such Taxes on that Security as a result of having some connection with the Relevant Jurisdiction other than its mere ownership or possession of the Security or the receipt of principal or interest in respect thereof;
(ii) that is presented for payment more than 30 days after the Relevant Date except to the extent that the Holder would have been entitled to receive the Additional Amounts if it had presented the Security for payment on the last day of the 30-day period;
(iii) where such withholding or deduction is imposed on a payment and is required to be made pursuant to laws enacted by Switzerland providing for the taxation of payments according to principles similar to those laid down in the draft legislation proposed by the Swiss Federal Council on April 3, 2020, or otherwise changing the Swiss federal withholding tax system from an issuer-based system to a paying-agent-based system pursuant to which a Person other than the Company is required to withhold tax on any interest payments;
(iv) on account of any such Taxes which would not have been so imposed but for the existence of any present or former connection between such Holder (or between a fiduciary, settler, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership or a corporation) and the United States including, without limitation, such Holder (or such fiduciary, settler, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein;
(v) on account of any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, duty, assessment or governmental charge;
(vi) on account of any Taxes which are payable otherwise than by withholding or deduction from payments on or in respect of any Security;
(vii) on account of any Taxes which would not have been imposed but for the failure of a Holder, or any intermediary, custodian or broker, to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of such Security, if such compliance is required by statute or by regulation of or on behalf of the United States as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viii) on account of any Taxes imposed solely because the Holder is a bank purchasing the Security in the ordinary course of its lending business;
(ix) on account of any Taxes required to be deducted or withheld by any paying agent from a payment on the Security if such payment can be made without such deduction or withholding by a paying agent other than the one required to make such a deduction or withholding;
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(x) on account of any Taxes imposed on (A) a Holder that actually or constructively owns 10% or more of the combined voting power of all classes of stock of the Company entitled to vote; or (B) contingent interest as described in section 871(h)(4) of the Code; or
(xi) any combination of (i) through (x) above;
nor shall Additional Amounts be paid with respect to any payment on a Security to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder of the Security.
“Relevant Date” means the date on which the payment first becomes due. If the full amount of the moneys payable on the due date has not been received by the Trustee on or before the due date, then “Relevant Date” means the date on which notice to the effect that the full amount of the money due has been received by the Trustee is given to Holders.
“Relevant Jurisdiction” means United Kingdom and Switzerland.
Notwithstanding any other provisions contained herein, the Company shall be permitted to withhold or deduct any amounts required by the rules of Section 871(m) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or any amended or successor provisions (relating to withholding or dividend equivalents) or Sections 1471 through 1474 of the Code, or any amended or successor provisions, pursuant to any inter-governmental agreement or implementing legislation adopted by another jurisdiction in connection with these provisions, or pursuant to any agreement with the U.S. Internal Revenue Service (“FATCA withholding”) as a result of a holder, beneficial owner or an intermediary not being entitled to receive payments free of FATCA withholding. The Company will have no obligation to pay additional amounts or otherwise indemnify an investor for any such withholding deducted or withheld by the Company, the Paying Agent, the Trustee, or any other party.
(c) The provisions of this Section 2.04 shall also apply to any Taxes imposed by (i) any jurisdiction in which a Person into which the Company has merged or to which the Company has conveyed, transferred or leased its property is a resident for tax purposes, and (ii) after giving effect to any Issuing Branch Substitution (unless Company is acting through UBS Head Office immediately after giving effect to such Issuing Branch Substitution), the jurisdiction of establishment of the Branch through which the Company is acting immediately after giving effect to such Issuing Branch Substitution, and, in each case, such jurisdiction shall thereafter be treated in the same manner as a Relevant Jurisdiction for purposes of this Section 2.04.
(d) For purposes of this Section 2.04, any references to principal of and/or interest on the Securities shall be deemed to include a reference to any relevant premium and/or Additional Amounts payable in respect of such Securities.
(e) For purposes of the Securities, this Section 2.04 replaces Section 1007 of the Base Indenture in its entirety and all references to Section 1007 of the Base Indenture shall be deemed to refer to this Section 2.04.
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Section 2.05 Issuing Branch Substitution.
The Company may, without the consent of Holders, upon giving no more than 30 and no less than 10 days’ notice to Holders, at any time, (i) cease to make payments of principal, interest and any other amounts due under the Securities then outstanding and fulfil any of its other obligations and exercise any of its other rights and powers in respect of, or arising under, the Securities then outstanding through the Branch or the UBS Head Office, as applicable, through which it is acting at the time of the relevant notice, and (ii) commence making such payments, fulfilling such other obligations and exercising such powers and rights through another Branch or the UBS Head Office (if the Company was not acting through UBS Head Office at the time of the relevant notice) as designated in the relevant notice (an “Issuing Branch Substitution”), provided that, as of the time of giving the relevant notice, (A) the Company is not in default in respect of any amount payable under the Securities, and (B) the Company would not be required to pay any Additional Amounts under the terms of the Securities after giving effect to such Issuing Branch Substitution that it would not have been required to pay if such Issuing Branch Substitution were not to occur.
Article III
consolidation, merger, conveyance, transfer or lease
Section 3.01 Company May Consolidate, Etc., Only on Certain Terms.
(a) The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless:
(i) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of the Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing;
(iii) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Company would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by the Indenture, the Company or such successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
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(iv) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Section 3.01(a) and that all conditions precedent herein provided for relating to such transaction have been complied with.
(b) For purposes of the Securities, (i) Section 3.01(a) replaces Section 801 of the Base Indenture in its entirety, (ii) any references to Section 801 of the Base Indenture, as set forth in Section 802 and Section 803 of the Base Indenture, shall be deemed to refer to Section 3.01(a) of this Supplemental Indenture and (iii) any reference to Section 801(3) of the Base Indenture, as set forth in Section 1303 of the Base Indenture, shall be deemed to refer to Section 3.01(a)(iii) of this Supplemental Indenture.
Article IV
Miscellaneous Provisions
Section 4.01 Effectiveness. This Supplemental Indenture shall become effective upon its execution and delivery.
Section 4.02 Original Issue. The Securities may, upon execution of this Supplemental Indenture, be executed by the Company and delivered by the Company to the Trustee for authentication, and the Trustee shall, upon delivery of a Company Order, authenticate and deliver such Securities as in such Company Order provided.
Section 4.03 Ratification and Integral Part. The Base Indenture as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, including without limitation all the rights, immunities and indemnities of the Trustee, and this Supplemental Indenture shall be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided.
Section 4.04 Priority. This Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. The provisions of this Supplemental Indenture shall, with respect to the Securities and subject to the terms hereof, supersede the provisions of the Base Indenture to the extent the Base Indenture is inconsistent herewith.
Section 4.05 Successors and Assigns. All covenants and agreements in the Base Indenture, as supplemented by this Supplemental Indenture, by the Company shall bind its successors and assigns, whether so expressed or not.
Section 4.06 Counterparts. This Supplemental Indenture may be executed (by way of manual, facsimile or electronic (including, without limitation, DocuSign and AdobeSign and other similar applications) signature) in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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Section 4.07 Electronic Signatures. All notices, approvals, consents and any communications hereunder must be in writing (provided that any communication sent to Trustee hereunder must be in the form of a document that is signed by way of a manual or facsimile signature, or by way of an electronic or digital signature provided by a digital signature provider (including, without limitation, DocuSign, AdobeSign and other similar providers), in English. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to Trustee, including the risk of interception and misuse by third parties, provided that the Company shall only assume the risk of the Trustee acting on unauthorized instructions where the Trustee acts in good faith and without gross negligence. For purposes of the Securities, any references to “manual or facsimile” signatures, as set forth in Section 303 of the Base Indenture, shall be deemed to refer to “manual, facsimile or electronic (including, without limitation, DocuSign, AdobeSign and other similar digital signature providers)” signatures.
Section 4.08 Governing Law. This Supplemental Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Supplemental Indenture to be duly executed, all as of the day and year above written.
| UBS AG, acting through its london branch | ||
|---|---|---|
| By: | /s/ Kevin Tillotson | |
| Name: | Kevin Tillotson | |
| Title: | Executive Director | |
| By: | /s/ Daniel Taylor | |
| Name: | Daniel Taylor | |
| Title: | Associate Director | |
| U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Michelle Lee | |
| Name: | Michelle Lee | |
| Title: | Vice President |
Signature Page to the Ninth Supplemental Indenture
Exhibit A
Form of Security
FACE OF SECURITY
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC” OR THE “DEPOSITARY”), TO UBS AG OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT NO PORTION OF THE ASSETS USED BY IT TO ACQUIRE OR HOLD THE SECURITY CONSTITUTES ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (C) PLAN SUBJECT TO PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (D) ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY OF THE FOREGOING TYPES OF PLANS, ACCOUNTS OR ARRANGEMENTS OR (II) THE ACQUISITION AND HOLDING OF THE SECURITY BY SUCH PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS.]
A-2-2
UBS AG,
acting through its London branch
$500,000,000 Floating Rate Senior Notes due 2025
| No. [_] | USD [_] |
|---|---|
| CUSIP: 902674 ZX1 | |
| ISIN: US902674ZX12 |
UBS AG, a corporation duly organized and existing under the laws of Switzerland (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), acting through its London Branch, for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [_] Dollars on September 11, 2025 (the “Maturity Date”), and to pay interest thereon from September 11, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly on March 11, June 11, September 11 and December 11 (each, an “Interest Payment Date”) in each year, commencing on December 11, 2023, until the principal hereof is paid or made available for payment.
The interest rate for any Floating Rate Interest Period (as defined in the reverse of this Security) will be a rate per annum equal to Compounded Daily SOFR (as defined in the reverse of this Security), with respect to such Floating Rate Interest Period (as defined in the reverse of this Security), as determined by the Calculation Agent (as defined in the reverse of this Security), on the applicable Interest Determination Date (as defined in the reverse of this Security), plus 0.93% per annum (the “Floating Rate Margin”) (together, the “Floating Interest Rate”), provided that the Floating Interest Rate with respect to any Floating Rate Interest Period (as defined in the reverse of this Security) shall be subject to a minimum rate per annum of 0.00% (the “Minimum Rate”). The Floating Interest Rate shall be reset quarterly on each Interest Payment Date.
If the Company or its designee determine that a SOFR Benchmark Transition Event and its related SOFR Benchmark Replacement Date (each as defined on the reverse of this Security have occurred) have occurred, when any interest rate on the Security (or any component part thereof) remains to be determined by reference to the SOFR Benchmark (as defined on the reverse of this Security), then the provisions of Section 2.02(f) of the Supplemental Indenture (as defined on the reverse of this Security) shall apply.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the 15th calendar day immediately preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
A-2-3
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register and, provided, further, that if this Security is a Global Security, payment may be made pursuant to the Applicable Procedures of the Depositary as permitted in said Indenture.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-2-4
IN WITNESS WHEREOF, the Company, acting through its London branch, has caused this instrument to be duly executed.
| UBS ag, acting through its london branch, | ||
|---|---|---|
| By: | ||
| Name: | ||
| Title: | Authorized Person | |
| By: | ||
| Name: | ||
| Title: | Authorized Person |
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
| Date: | U.S. BANK TRUST NATIONAL ASSOCIATION, | |
|---|---|---|
| As Trustee | ||
| By: | ||
| Authorized Signatory |
A-2-5
[REVERSE
OF NOTE]
UBS AG,
acting THROUGh its london branch
$500,000,000 Floating Rate Senior Notes due 2025
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of June 12, 2015, as amended and supplemented (the “Base Indenture”), and as further supplemented by the Ninth Supplemental Indenture, dated as of September 11, 2023 (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $500,000,000.
“Benchmark Replacement Conforming Changes” has the meaning set forth in Section 2.02(f)(ii) of the Supplemental Indenture.
“Calculation Agent” means U.S. Bank Trust National Association or its successor appointed by the Company pursuant to the Calculation Agent Agreement between the Company and U.S. Bank Trust National Association, dated as of the date hereof.
“Compounded Daily SOFR” means, with respect to a Floating Rate Interest Period, the rate calculated by the Calculation Agent on the relevant Interest Determination Date in accordance with the following formula (and the resulting percentage will be rounded if necessary to the fifth decimal place, with 0.000005 being rounded upwards):
where:
“d” means the number of calendar days in the relevant SOFR Observation Period;
“do” means the number of U.S. Government Securities Business Days in the relevant SOFR Observation Period;
“i” means a series of whole numbers from 1 to do, each representing the relevant U.S. Government Securities Business Days in chronological order from, and including, the first U.S. Government Securities Business Day in the relevant SOFR Observation Period;
“ni” means, for any U.S. Government Securities Business Day “i” in the relevant SOFR Observation Period, the number of days from (and including) such U.S. Government Securities Business Day “i” to but excluding the following U.S. Government Securities Business Day;
A-2-6
“Corresponding Tenor” means, with respect to a SOFR Benchmark Replacement, a tenor (including overnight) having approximately the same length (disregarding any applicable business day convention) as the applicable tenor for the then-current SOFR Benchmark.
“SOFRi” means, in respect of any U.S. Government Securities Business Day “i” in the relevant SOFR Observation Period, SOFR in respect of such U.S. Government Securities Business Day.
“Floating Rate Interest Period” means each interest period for the Securities beginning on (and including) an Interest Payment Date (or, in the case of the first Floating Rate Interest Period, the Issue Date) and ending on (but excluding) the following Interest Payment Date (or, in the case of the redemption or acceleration of the Securities, the relevant date of redemption or acceleration).
“Interest Determination Date” means, in respect of any Floating Rate Interest Period, the date falling two U.S. Government Securities Business Day (as defined below) prior to the applicable Interest Payment Date (or, in the case of the redemption or acceleration of the Securities of this series, prior to the applicable date of redemption or acceleration).
“ISDA” means the International Swaps and Derivatives Association, Inc. (or any successor).
“ISDA Definitions” means the 2021 ISDA Interest Rate Definitions (including the relevant matrix and any successor matrix thereto) published by ISDA as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means, with respect to any ISDA Fallback Rate, the spread adjustment, which may be a positive or negative value or zero, that would be applied to such ISDA Fallback Rate in the case of derivatives transactions referencing the ISDA Definitions that will be effective upon the occurrence of an index cessation event with respect to the then-current SOFR Benchmark for the applicable tenor.
“ISDA Fallback Rate” means, with respect to the then-current SOFR Benchmark, the rate that would apply for derivatives transactions referencing the ISDA Definitions that will be effective upon the occurrence of an index cessation date with respect to the then-current SOFR Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“New York Federal Reserve’s Website” means the website of the Federal Reserve Bank of New York, which is currently at http://www.newyorkfed.org/, or any successor website of the Federal Reserve Bank of New York.
“Reference Time” means (1) if the SOFR Benchmark is Compounded Daily SOFR, for any U.S. Government Securities Business Day, the SOFR Determination Time for such U.S. Government Securities Business Day, and (2) if the SOFR Benchmark is not Compounded Daily SOFR, the time determined by the Company or its designee in accordance with the SOFR Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York or any successor thereto.
A-2-7
“SOFR” means, in respect of any U.S. Government Securities Business Day, the rate determined by the Calculation Agent as follows:
(3) the daily Secured Overnight Financing Rate in respect of such U.S. Government Securities Business Day appearing on the New York Federal Reserve’s Website at or around 3:00 p.m. (New York time) on the immediately following U.S. Government Securities Business Day (the “SOFR Determination Time”); or
(4) if the rate specified in (1) above is not available at or around the SOFR Determination Time for such U.S. Government Securities Business Day (and a SOFR Benchmark Transition Event and its related SOFR Benchmark Replacement Date have not occurred), the daily Secured Overnight Financing Rate in respect of the last U.S. Government Securities Business Day for which such rate was published on the New York Federal Reserve’s Website.
“SOFR Benchmark” means, initially, Compounded Daily SOFR, provided that if a SOFR Benchmark Transition Event and its related SOFR Benchmark Replacement Date have occurred with respect to Compounded Daily SOFR (or the published SOFR used in the calculation thereof) or such other then-current SOFR Benchmark, then SOFR Benchmark means the applicable SOFR Benchmark Replacement.
“SOFR Benchmark Replacement” means, with respect to the then-current SOFR Benchmark, the first alternative set forth in the order presented below that can be determined by the Company or its designee, as of the SOFR Benchmark Replacement Date:
(1) the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current SOFR Benchmark for the applicable Corresponding Tenor and (b) the SOFR Benchmark Replacement Adjustment; or
(2) the sum of: (a) the ISDA Fallback Rate and (b) the SOFR Benchmark Replacement Adjustment; or
(3) the sum of: (a) the alternate rate of interest that has been selected by the Company or its designee as the replacement for the then-current SOFR Benchmark for the applicable Corresponding Tenor, giving due consideration to any industry-accepted rate of interest as a replacement for the then-current SOFR Benchmark for U.S. dollar-denominated floating rate notes at such time, and (b) the SOFR Benchmark Replacement Adjustment.
“SOFR Benchmark Replacement Adjustment” means, with respect to any SOFR Benchmark Replacement, the first alternative set forth in the order below that can be determined by the Company or its designee as of the SOFR Benchmark Replacement Date:
(1) the spread adjustment (which may be a positive or negative value or zero), or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted SOFR Benchmark Replacement; or
(2) if the applicable Unadjusted SOFR Benchmark Replacement is equivalent to the ISDA Fallback Rate, the ISDA Fallback Adjustment; or
A-2-8
(3) the spread adjustment, which may be a positive or negative value or zero, that has been selected by the Company or its designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current SOFR Benchmark with the applicable Unadjusted SOFR Benchmark Replacement for U.S. dollar denominated floating rate notes at such time;
“SOFR Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current SOFR Benchmark (including any daily published component used in the calculation thereof):
(1) in the case of clause (1) or (2) of the definition of the term “SOFR Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the SOFR Benchmark (or such component) permanently or indefinitely ceases to provide the SOFR Benchmark (or such component); or
(2) in the case of clause (3) of the definition of the term “SOFR Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
If the event giving rise to the SOFR Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the SOFR Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination;
“SOFR Benchmark Transition Event” means, the occurrence of one or more of the following events with respect to the then-current SOFR Benchmark (including the daily published component used in the calculation thereof):
(1) a public statement or publication of information by or on behalf of the administrator of the SOFR Benchmark (or such component) announcing that such administrator has ceased or will cease to provide the SOFR Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the SOFR Benchmark (or such component);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of the SOFR Benchmark (or such component), the central bank for the currency of the SOFR Benchmark (or such component), an insolvency official with jurisdiction over the administrator for the SOFR Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the SOFR Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the SOFR Benchmark (or such component) that states that the administrator of the SOFR Benchmark (or such component) has ceased or will cease to provide the SOFR Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the SOFR Benchmark (or such component); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of the SOFR Benchmark announcing that the SOFR Benchmark is no longer representative.
“SOFR Determination Time” has the meaning set forth in the definition of “SOFR”.
A-2-9
“SOFR Observation Period” means, in respect of any Floating Rate Interest Period, the period from (and including) the date falling two U.S. Government Securities Business Days prior to the first day of such Floating Rate Interest Period to (but excluding) the Interest Determination Date relating to such Floating Rate Interest Period.
“Unadjusted SOFR Benchmark Replacement” means the SOFR Benchmark Replacement excluding the SOFR Benchmark Replacement Adjustment.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
By its acquisition of the Securities of this series, each Holder of the Securities of this series (which, for these purposes, includes each beneficial owner) (i) acknowledges, accepts, consents and agrees to be bound by the Company’s or its designee’s determination of a SOFR Benchmark Transition Event, a SOFR Benchmark Replacement Date, the SOFR Benchmark Replacement, the SOFR Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, including as may occur without any prior notice from the Company and without the need for the Company to obtain any further consent from such Holder of Securities of this series, (ii) waives any and all claims, in law and/or in equity, against the Trustee, any paying agent and the Calculation Agent or the Company’s designee for, agree not to initiate a suit against the Trustee, any paying agent and the Calculation Agent or the Company’s designee in respect of, and agree that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will be liable for, the determination of or the failure to determine any SOFR Benchmark Transition Event, any SOFR Benchmark Replacement Date, any SOFR Benchmark Replacement, any SOFR Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes, and any losses suffered in connection therewith and (iii) agrees that none of the Trustee, any paying agent or the Calculation Agent or the Company’s designee will have any obligation to determine any SOFR Benchmark Transition Event, any SOFR Benchmark Replacement Date, any SOFR Benchmark Replacement, any SOFR Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes (including any adjustments thereto), including in the event of any failure by the Company to determine any SOFR Benchmark Transition Event, any SOFR Benchmark Replacement Date, any SOFR Benchmark Replacement, any SOFR Benchmark Replacement Adjustment and any Benchmark Replacement Conforming Changes.
If an Event of Default (as defined in Section 2.03(a) of the Supplemental Indenture) with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
Payments under the Securities of this series will be made without withholding or deduction for or on account of any present or future tax, duty, assessment or governmental charge imposed upon or as a result of such payments by a Relevant Jurisdiction (as defined in Section 2.04(b) of the Supplemental Indenture) (“Taxes”), unless required by law. To the extent any such Taxes are so levied or imposed, the Company will, subject to the exceptions and limitations set forth in Section 2.04 of the Supplemental Indenture, pay such additional amounts (“Additional Amounts”) to the Holder of any Security who is not a resident of a Relevant Jurisdiction as may be necessary in order that every net payment of the principal of and interest on such Security and any other amounts payable on such Security, after withholding for or on account of such Taxes imposed upon or as a result of such payment, will not be less than the amount provided for in such Security to be then due and payable.
A-2-10
If at any time as a result of any change in or amendment to the laws or regulations of a Relevant Jurisdiction affecting taxation, or a change in any application or interpretation of such laws or regulations (including the decision of any court or tribunal) either generally or in relation to the Securities of this series, which change, amendment, application or interpretation becomes effective on or after September 5, 2023, in making any payment of, or in respect of, the principal amount of, or any premium or interest on, the Securities of this series, the Company would be required to pay any Additional Amounts with respect thereto, then the Securities of this series will be redeemable upon not less than 10 nor more than 60 days’ notice by mail, at any time thereafter, in whole but not in part, at the election of the Company as provided in the Indenture at their principal amount, together in the case of any such redemption with any accrued but unpaid interest to the Redemption Date.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the securities of each series at the time Outstanding, on behalf of the Holders of all securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
A-2-11
The Securities of this series are issuable only in registered form without coupons in denominations of $200,000 and integral multiples of $1,000 thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
This Security is a Global Security and is subject to the provisions of the Indenture relating to Global Securities, including the limitations in Section 305 thereof on transfers and exchanges of Global Securities.
This Security and the Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
All terms used in this Security that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
A-2-12
Exhibit 5.1
[Letterhead of Sullivan & Cromwell LLP]
September 11, 2023
| UBS AG, | |||
|---|---|---|---|
| Bahnhofstrasse 45, | |||
| CH-8001 Zurich, | |||
| Switzerland. |
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933 (the “Act”) of (i) $1,000,000,000 aggregate principal amount of 5.800% Fixed Rate Senior Notes due 2025 (the “2025 Notes”), (ii) $1,500,000,000 aggregate principal amount of 5.650% Fixed Rate Senior Notes due 2028 (the “2028 Notes”) and (iii) $500,000,000 aggregate principal amount of Floating Rate Senior Notes due 2025 (the “Floating Rate Notes,” and together with the 2025 Notes and the 2028 Notes, the “Securities”), of UBS AG, a corporation organized under the laws of Switzerland (the “Company”), acting through its London branch, issued pursuant to the Indenture, dated June 12, 2015 (the “Base Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the Seventh Supplemental Indenture, the Eighth Supplemental Indenture and the Ninth Supplemental Indenture, each dated as of September 11, 2023 (each, a “Supplemental Indenture” and collectively the “Supplemental Indentures,” and together with the Base Indenture, the “Indenture”), between the Company and the Trustee, we, as your United States counsel, have examined such corporate records, certificates and other documents, and such questions of United States federal and New York state law, as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, it is our opinion that the Securities constitute valid and legally binding obligations of the Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
| UBS AG | -2- |
|---|
The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of New York, and we are expressing no opinion as to the effect of the laws of any other jurisdiction or as of any later date. With respect to all matters of Swiss law, we note that you have received an opinion dated the date hereof, of Homburger AG. In rendering the foregoing opinion, we have assumed, without independent verification, that (i) the Company has been duly incorporated and is an existing corporation in good standing under the laws of Switzerland, (ii) the Base Indenture and each of the Supplemental Indentures has been duly authorized, executed and delivered by the Company insofar as the laws of Switzerland are concerned, (iii) the Securities have been duly authorized, executed and delivered by the Company insofar as the laws of Switzerland are concerned and (iv) all corporate action by the Company related to the Securities has been duly authorized as a matter of Swiss law.
In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in the Company’s Registration Statement on Form F-3 (the “Registration Statement”) or any related prospectus or other offering material regarding the Company or the Securities or their offering and sale.
We have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by us to be responsible, and we have assumed that the Base Indenture and each Supplemental Indenture has been duly authorized, executed and delivered by the Trustee thereunder, that the Securities conform to the specimens thereof examined by us, that the Trustee’s certificates of authentication of the Securities have been signed by one of the Trustee’s authorized officers and that the signatures on all documents examined by us are genuine, assumptions which we have not independently verified.
We hereby consent to the filing of this opinion as an exhibit to a Form 6-K to be incorporated by reference into the Registration Statement and to the reference to us under the heading “Validity of the Notes” in the Prospectus Supplement, dated September 5, 2023, and under the heading “Validity of the Securities” in the Prospectus, dated May 27, 2022, pursuant to which the Securities are being offered for sale. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell LLP
Exhibit 5.2
| To:<br><br> <br>UBS AG<br><br> <br>Bahnhofstrasse 45<br><br> <br>8001 Zurich<br><br> <br>Switzerland | Homburger AG<br><br> <br>Prime Tower<br><br> <br>Hardstrasse 201<br><br> <br>CH–8005 Zurich<br><br> <br><br><br> <br>T +41 43 222 10 00<br><br> <br>F +41 43 222 15 00<br><br> <br>lawyers@homburger.ch |
|---|
Zurich, September 11, 2023
UBS AG, acting through its London branch
U.S.$ 1,000,000,000 5.800% Fixed Rate Senior Notes due 2025, U.S.$ 1,500,000,000 5.650% Fixed Rate Senior Notes due 2028 and U.S.$ 500,000,000 Floating Rate Senior Notes due 2025
We, Homburger AG, have acted as special Swiss counsel to UBS AG in connection with the issuance by UBS AG, acting through its London branch (the Issuing Branch), of (i) U.S.$ 1,000,000,000 aggregate principal amount of 5.800% Fixed Rate Senior Notes due 2025 (the 2025 Fixed Rate Notes, which expression includes, unless the context otherwise requires, the 2025 Fixed Rate Global Securities (as defined below)), (ii) U.S.$ 1,500,000,000 aggregate principal amount of 5.650% Fixed Rate Senior Notes due 2028 (the 2028 Fixed Rate Notes, which expression includes, unless the context otherwise requires, the 2028 Fixed Rate Global Securities (as defined below)), and (iii) U.S.$ 500,000,000 aggregate principal amount of Floating Rate Senior Notes due 2025 (the Floating Rate Notes, which expression includes, unless the context otherwise requires, the Floating Rate Global Security (as defined below) and, together with the 2025 Fixed Rate Notes and the 2028 Fixed Rate Notes, the Notes), under the Indenture dated as of June 12, 2015 (the Base Indenture), between UBS AG and U.S. Bank Trust National Association, as trustee (the Trustee), as supplemented by (x) in the case of the 2025 Fixed Rate Notes, the Supplemental Indenture relating to the 2025 Fixed Rate Notes, dated as of September 11, 2023 (the 2025 Fixed Rate Note Supplemental Indenture), (y) in the case of the 2028 Fixed Rate Notes, the Supplemental Indenture relating to the 2028 Fixed Rate Notes, dated as of September 11, 2023 (the 2028 Fixed Rate Note Supplemental Indenture), and (z) in the case of the Floating Rate Notes, the Supplemental Indenture relating to the Floating Rate Notes, dated as of September 11, 2023 (the Floating Rate Note Supplemental Indenture and, together with the 2025 Fixed Rate Note Supplemental Indenture and the 2028 Fixed Rate Note Supplemental Indenture, the Supplemental Indentures), in each case between UBS AG, acting through the Issuing Branch, and the Trustee. As such special Swiss counsel, we have been requested to give our opinion as to certain matters of Swiss law relating to the Notes.
| I. | Basis of Opinion |
|---|
This opinion is confined to and given on the basis of the laws of Switzerland in force at the date hereof. Such laws and the interpretation thereof are subject to change. This opinion is also confined to the matters stated herein and the Documents (as defined below), and is not to be read as extending, by implication or otherwise, to any agreement or other document referred to in any of the Documents (including, in the case of the Prospectus, any document incorporated by reference therein or exhibited thereto) or any other matter.
For purposes of this opinion, we have not conducted any due diligence or similar investigation as to factual circumstances that are or may be referred to in the Documents, and we express no opinion as to the accuracy of representations and warranties of facts set out in the Documents or the factual background assumed therein.
For purposes of this opinion, we have only reviewed the following documents (collectively, the Documents):
| (i) | an electronic copy of the executed Base Indenture; |
|---|---|
| (ii) | an electronic copy of the executed 2025 Fixed Rate Note Supplemental Indenture; |
| --- | --- |
| (iii) | an electronic copy of the executed 2028 Fixed Rate Note Supplemental Indenture; |
| --- | --- |
| (iv) | an electronic copy of the executed Floating Rate Note Supplemental Indenture; |
| --- | --- |
| (v) | an electronic copy of the (A) two global securities representing the 2025 Fixed Rate Notes (the 2025 Fixed Rate Global Securities),<br>(B) three global securities representing the 2028 Fixed Rate Notes (the 2028 Fixed Rate Global Securities), and (C) one global<br>security representing the Floating Rate Notes (the Floating Rate Global Security and, together with the 2025 Fixed Rate Global<br>Securities and the 2028 Fixed Rate Global Securities, the Global Securities), in each case executed by UBS AG, acting through the<br>Issuing Branch; |
| --- | --- |
| (vi) | an electronic copy of the executed Underwriting Agreement relating to the Notes, dated September 5, 2023 (together with the Base<br>Indenture, the Supplemental Indentures and the Notes, the Transaction Agreements), among UBS AG, acting through the Issuing Branch,<br>UBS Securities LLC, as representative of the several Underwriters named in Schedule I thereto, and UBS AG London Branch, as UK Manufacturer<br>(as defined therein); |
| --- | --- |
| (vii) | an electronic copy of the prospectus dated May 27, 2022 (the Base Prospectus); |
| --- | --- |
| (viii) | an electronic copy of the prospectus supplement to the Base Prospectus, dated September 5, 2023 (together with the Base Prospectus,<br>the Prospectus, and together with the Transaction Agreements, the Transaction Documents); |
| --- | --- |
2/6
| (ix) | a copy of the articles of association (Statuten) of UBS AG in their version dated April 4, 2023, certified by the Commercial<br>Register of the Canton of Zurich (the Articles); |
|---|---|
| (x) | a certified excerpt from the Commercial Register of the Canton of Zurich for UBS AG, dated September 7, 2023 (the Excerpt); |
| --- | --- |
| (xi) | an electronic copy of the approval of the Group Treasurer and the Group Chief Financial Officer of UBS Group, dated June 12,<br>2015, and relating to the Base Indenture (the 2015 Approval); |
| --- | --- |
| (xii) | an electronic copy of the resolutions of the Group Treasurer and the Group Chief Financial Officer of UBS Group, dated January 26,<br>2022, and relating to, among other things, the registration statement on Form F-3 (the Registration Statement) of which the Prospectus<br>forms a part (the 2022 Approval); |
| --- | --- |
| (xiii) | an electronic copy of the resolutions of the Group Treasurer and the Head of Capital Management of UBS Group, dated August 31,<br>2023, which amended and restated Schedule 1 to the 2022 Approval (the Amendment); |
| --- | --- |
| (xiv) | an electronic copy of the approval of the Group Treasurer of UBS Group, approving the issuance of the Notes, dated September 1,<br>2023, including the term sheets for the Notes attached thereto (the Issuance Approval); |
| --- | --- |
| (xv) | an electronic copy of the final term sheets for the Notes, signed by the Group Treasurer of UBS Group on September 6, 2023 (together<br>with the 2015 Approval, the 2022 Approval and the Issuance Approval, the Approvals); |
| --- | --- |
| (xvi) | an electronic copy of the Organizational Regulations of UBS Group AG and UBS AG, valid as of November 26, 2014, including the<br>annexes thereto (the 2014 Regulations); |
| --- | --- |
| (xvii) | an electronic copy of the Organizational Regulations of UBS AG, valid as of April 1, 2020, including the annexes thereto (the<br>2020 Regulations); |
| --- | --- |
| (xviii) | an electronic copy of the Organizational Regulations of UBS AG, valid as of June 12, 2023, including the annexes thereto (the<br>2023 Regulations); |
| --- | --- |
| (xix) | an electronic copy of the UBS Delegation of Authorities Group Finance (including Group Treasury) 9-C-011610 in its version effective<br>as of August 29, 2023 (the Delegation of Authorities); |
| --- | --- |
| (xx) | an electronic copy of the Policy on Signing Authority 1-P-000052 in its version published on April 19, 2023 (the Signing Authority);<br>and |
| --- | --- |
| (xxi) | an electronic copy of the list of authorized signatories relating to notes registered with the U.S. Securities and Exchange Commission,<br>executed by two directors of UBS AG on August 22, 2023 (the List of Authorized Signatories). |
| --- | --- |
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No documents have been reviewed by us in connection with this opinion other than the Documents. Accordingly, we shall limit our opinion to the Documents and their legal implications under the laws of Switzerland.
In this opinion, Swiss legal concepts are expressed in English terms and not in their original language. These concepts may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. With respect to Documents governed by laws other than the laws of Switzerland, for purposes of this opinion, we have relied on the plain meaning of the words and expressions contained therein without regard to any import they may have under the relevant governing law.
| II. | Assumptions |
|---|
In rendering the opinions below, we have assumed the following:
| (a) | all documents produced to us as originals are authentic and complete, and all documents produced to us as copies (including, without<br>limitation, fax and electronic copies) conform to the original; |
|---|---|
| (b) | all documents produced to us as originals and the originals of all documents produced to us as copies were duly executed and certified,<br>as applicable, by the individuals purported to have executed or certified, as the case may be, such documents, and any electronic signature<br>on behalf of UBS AG (whether or not acting through the Issuing Branch) on any such document has been affixed thereto by the individual<br>to whom such electronic signature belongs and such individual has saved and submitted such document as so electronically signed in such<br>a manner so as to prevent removal or other alteration of such signature; |
| --- | --- |
| (c) | except as expressly opined upon herein, all information contained in the Documents is, and all material statements made to us in connection<br>with the Documents are, true and accurate; |
| --- | --- |
| (d) | the Excerpt is correct, complete and up-to-date, and the Articles, the 2023 Regulations, Delegation of Authorities, the Approvals,<br>the Signing Authority and the List of Authorized Signatories have not been amended (other than, in the case of the 2022 Approval, by the<br>Amendment) and are in full force and effect; |
| --- | --- |
| (e) | as at the date of the 2022 Approval, the 2020 Regulations had not been amended and were in full force and effect; |
| --- | --- |
| (f) | as at the date of the 2015 Approval, the 2014 Regulations had not been amended and were in full force and effect; |
| --- | --- |
| (g) | immediately after giving effect to the issuance of the Notes, the aggregate issuance amount, as measured by the aggregate initial<br>public offering price, of all the securities (including the Notes) issued and sold pursuant to the 2022 Approval will not exceed U.S.$<br>35,000,000,000 or the equivalent in such foreign currencies or units of two or more currencies (based on the applicable rate at the time of offering), as<br>determined in accordance with the 2022 Approval; and |
| --- | --- |
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| (h) | each Transaction Agreement continues in full force and effect and has not been amended (other than, in the case of the Base Indenture,<br>by the Supplemental Indentures and any supplements thereto relating to individual note issuances thereunder that do not constitute Notes). |
|---|---|
| III. | Opinion |
| --- | --- |
Based on the foregoing and subject to the qualifications set out below, we are of the opinion that:
| 1. | UBS AG is a corporation (Aktiengesellschaft) duly incorporated and validly existing under the laws of Switzerland. |
|---|---|
| 2. | UBS AG has the corporate power and authority to (a) execute and deliver the Supplemental Indentures and (b) issue the Notes,<br>in each case acting through the Issuing Branch. |
| --- | --- |
| 3. | UBS AG has taken all necessary corporate action to authorize (a) the execution and delivery the Supplemental Indentures and the<br>Notes and (b) the issuance of the Notes, in each case by UBS AG, acting through the Issuing Branch. |
| --- | --- |
| 4. | The Supplemental Indentures and the Notes have been duly executed and delivered by UBS AG, acting through the Issuing Branch. |
| --- | --- |
| 5. | The Base Indenture was duly authorized, executed and delivered by UBS AG. |
| --- | --- |
| IV. | Qualifications |
| --- | --- |
The above opinions are subject to the following qualifications:
| (a) | The lawyers of our firm are members of the Zurich bar and do not hold themselves out to be experts in any laws other than the laws<br>of Switzerland. Accordingly, we are opining herein as to Swiss law only, based on our independent professional judgment, and we express<br>no opinion with respect to the applicability or the effect of the laws of any other jurisdiction to or on the matters covered herein. |
|---|---|
| (b) | We express no opinion on the legality, validity or enforceability of any of the provisions of the Base Indenture, the Supplemental<br>Indentures or the Notes or the performance of the obligations assumed by UBS AG thereunder. |
| --- | --- |
| (c) | We express no opinion as to the accuracy or completeness of the information set out in the Prospectus. |
| --- | --- |
| (d) | We express no opinion on the admissibility or validity of, or the procedures relating to, the registration of the offering of the<br>Notes with the SEC. |
| --- | --- |
| (e) | Further, we express no opinion as to banking regulatory matters or as to any commercial, accounting, calculating, auditing or other<br>non-legal matter. Also, we express no opinion as to tax matters. |
| --- | --- |
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* * *
We have issued this opinion as of the date hereof and we assume no obligation to advise you of any changes in fact or in law that are made or brought to our attention hereafter.
We hereby consent to the filing of this opinion with the SEC as an exhibit to a Form 6-K to be incorporated by reference into the Registration Statement and to the use of our name in the prospectus included in the Registration Statement under the heading "Legal Matters". In giving such consent we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
This opinion is furnished by us, as special Swiss counsel to UBS AG, in connection with the the issuance of the Notes, except as provided in the immediately preceding paragraph, is not to be used, circulated, quoted or otherwise referred to for any other purpose without our express written permission, or relied upon by any other person.
This opinion is governed by and shall be construed in accordance with the laws of Switzerland. We confirm our understanding that all disputes arising out of or in connection with this opinion shall be subject to the exclusive jurisdiction of the courts of the Canton of Zurich, Switzerland, venue being the City of Zurich.
Sincerely yours,
/s/ HOMBURGER AG
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Exhibit 8.1
[Letterhead of Sullivan & Cromwell LLP]
September 11, 2023
| UBS AG, | |||
|---|---|---|---|
| Bahnhofstrasse 45, | |||
| CH-8001 Zurich, | |||
| Switzerland. |
Ladies and Gentlemen:
We have acted as United Kingdom tax counsel to UBS AG (the “Company”) in connection with the registration under the Securities Act of 1933, as amended (the “Act”), of $1,000,000,000 aggregate principal amount of 5.800% Notes due 2025, $1,500,000,000 aggregate principal amount of 5.650% Notes due 2028 and $500,000,000 Floating Rate Notes due 2025 issued by the Company, acting through its London branch, pursuant to a Registration Statement on Form F-3 (File No: 333-263376) (the “Registration Statement”).
We hereby confirm to you that the discussion set forth in the Registration Statement under the caption “U.K. Taxation Considerations” is accurate in all material respects as a summary as described in that section, subject to the limitations noted therein.
Our opinion is based on United Kingdom (“UK”) tax law and the published practice of HM Revenue & Customs as at the date hereof. We do not undertake to advise you of any changes in such law and practice after the date hereof unless specifically instructed to do so. We express no opinion as to tax laws, regulations or practice in any jurisdiction other than the UK.
We hereby consent to the use of our name and the filing of this letter as an exhibit to a Form 6-K to be incorporated by reference into the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell LLP