Barclays PLC 6-K, filed Mar 10, 2021
Barclays PLC (BCS)
About this 6-K
Barclays PLC filed this 6-K on March 10, 2021.
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
under the Securities Exchange Act of 1934
For the month of March, 2021
Commission File Number: 001-09246
Barclays PLC
(Name of Registrant)
1 Churchill Place
London E14 5HP
England
(Address of Principal Executive Office)
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 ☒ Form 40-F ☐
Indicate by check mark whether the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark whether the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
THIS REPORT ON FORM 6-K SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THE REGISTRATION STATEMENT ON FORM F-3 (NO. 333-253693) OF BARCLAYS PLC AND TO BE A PART THEREOF FROM THE DATE ON WHICH THIS REPORT IS FURNISHED, TO THE EXTENT NOT SUPERSEDED BY DOCUMENTS OR REPORTS SUBSEQUENTLY FILED OR FURNISHED.
The Report comprises the following:
| Exhibit |
Description | |||
| 1.1 | — | Underwriting Agreement—Standard Provisions, dated as of March 3, 2021. | ||
| 1.2 | — | Pricing Agreement between Barclays PLC and Barclays Capital Inc., dated March 3, 2021 for the 2.667% Fixed Rate Resetting Senior Callable Notes due 2032. | ||
| 4.1 | — | Senior Debt Securities Indenture, dated as of January 17, 2018, between Barclays PLC and The Bank of New York Mellon, London Branch, as Trustee (incorporated by reference to Exhibit 4.1 of the registrant’s Report of Foreign Private Issuer on Form 6-K (Film No. 18530382) filed with the Securities and Exchange Commission on January 17, 2018). | ||
| 4.2 | — | Sixth Supplemental Indenture to the Senior Debt Securities Indenture, dated as of May 7, 2020, among Barclays PLC, The Bank of New York Mellon, London Branch, as Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar (incorporated by reference to Exhibit 4.2 of the registrant’s Report of Foreign Private Issuer on Form 6-K (Film No. 20855734), filed with the Securities and Exchange Commission on May 7, 2020). | ||
| 4.3 | — | Ninth Supplemental Indenture to the Senior Debt Securities Indenture, dated as of March 1, 2021, among Barclays PLC, The Bank of New York Mellon, London Branch, as Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar (incorporated by reference to Exhibit 4.3 of the registrant’s Form F-3 (Film No. 21697198), filed with the Securities and Exchange Commission on March 1, 2021). | ||
| 4.4 | — | Tenth Supplemental Indenture to the Senior Debt Securities Indenture, dated as of March 10, 2021, among Barclays PLC, The Bank of New York Mellon, London Branch, as Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar. | ||
| 4.5 | — | The form of Global Security for the 2.667% Fixed Rate Resetting Senior Callable Notes due 2032 (incorporated by reference to the Exhibit A to Exhibit 4.4 above). | ||
| 5.1 | — | Opinion of Cleary Gottlieb Steen & Hamilton, U.S. counsel to Barclays PLC, as to the validity of the 2.667% Fixed Rate Resetting Senior Callable Notes due 2032. | ||
| 5.2 | — | Opinion of Clifford Chance LLP, English counsel to Barclays PLC, as to the validity of the 2.667% Fixed Rate Resetting Senior Callable Notes due 2032. | ||
SIGNATURES
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.
| BARCLAYS PLC (Registrant) | ||||||
| Date: March 10, 2021 | By: | /s/ Karen Rowe | ||||
| Name: | Karen Rowe | |||||
| Title: | Assistant Secretary | |||||
[Signature Page to Form 6-K]
Exhibit 1.1
BARCLAYS PLC
Debt Securities
Underwriting Agreement—
Standard Provisions
From time to time Barclays PLC, a public limited company organized under the laws of England and Wales (the “Company”), proposes to enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue certain of the Company’s Debt Securities specified in Schedule II to the applicable Pricing Agreement (the “Designated Securities”) and to issue to the firms named in Schedule I to such Pricing Agreement (such firms constituting the “Underwriters” with respect to such Pricing Agreement and the Designated Securities specified therein).
The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and (i) in the case of senior debt obligations (“Senior Debt Securities”), in or pursuant to the Senior Debt Securities Indenture, dated January 17, 2018, between the Company and The Bank of New York Mellon, London Branch, as Trustee, filed with the Securities and Exchange Commission (the “Commission”) on January 17, 2018 (as heretofore amended and supplemented, the “Senior Debt Indenture”), and (ii) in the case of subordinated obligations having a stated maturity (“Dated Subordinated Debt Securities”), in or pursuant to the Dated Subordinated Debt Securities Indenture, dated May 9, 2017, between the Company and The Bank of New York Mellon acting through its London Branch, as Trustee, filed with the Commission on May 9, 2017 (as heretofore amended and supplemented, the “Dated Subordinated Debt Indenture” collectively with the Senior Debt Indenture, the “Indentures” and each individually an “Indenture”). The Designated Securities will be represented by one or more definitive global securities in book-entry form which will be deposited by, or on behalf of, the Company with The Depository Trust Company (“DTC”) or its designated custodian.
1. Particular issuances of Designated Securities may be made from time to time to the Underwriters of such Designated Securities, for whom the firms designated as representatives of the Underwriters of such Designated Securities in the Pricing Agreement relating thereto will act as representatives (the “Representatives”). The term “Representatives” also refers to a single firm acting as sole representative of the Underwriters and to Underwriters that act without any firm being designated as their representatives. This Agreement shall not be construed as an obligation of the Company to issue any of the Designated Securities, or as an obligation of the Underwriters to subscribe for any of the Designated Securities. The obligation of the Company to issue any of the Designated Securities, and the obligation of any of the Underwriters to subscribe for any of the Designated Securities, shall be evidenced by the Pricing Agreement relating to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount or number of the Designated Securities, the initial public offering price of such Designated Securities, the subscription price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters, if any, the aggregate principal amount or number of such Designated Securities to be subscribed for by each Underwriter, the commissions, if any, payable to the Underwriters with respect thereto, such other terms of the Designated Securities as are noted in such Pricing Agreement and shall set forth the date, time and manner of delivery of such Designated Securities, and payment therefor. Each Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the registration statement and prospectus with respect thereto) the terms of such Designated Securities. Each Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or other rapid transmission device designed to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the Underwriters that to the extent applicable to the Designated Securities:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Act”), on Form F-3 (File No. 333- 253693) or such other file number as specified in the applicable Pricing Agreement) relating to the Designated Securities has been filed by the Company
with the Commission not earlier than three years prior to the date of the applicable Pricing Agreement; such registration statement and any post-effective amendments thereto have become effective on filing; no stop order suspending the effectiveness of such registration statement is in effect and no proceedings for such purpose are pending before or threatened by the Commission; no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company; and copies of such registration statement, including exhibits and all documents incorporated by reference in the prospectus included in such registration statement and any post-effective amendments thereto, have heretofore been delivered to the Representatives for each of the other Underwriters. The various parts of such registration statement, including all exhibits thereto but excluding Forms T-1 and, if applicable, including (i) any prospectus supplement relating to the Designated Securities that is filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at the time such part of such registration statement became effective, and (ii) the documents incorporated by reference in the prospectus contained in such registration statement on the date of the Pricing Agreement relating to any Designated Securities, each as amended on the date of the Pricing Agreement relating to any Designated Securities, are hereinafter collectively called the “Registration Statement”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Designated Securities included in the Registration Statement or filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act is hereinafter called a “Preliminary Prospectus”; such final prospectus in the form first filed pursuant to Rule 424(b) under the Act is hereinafter called the “Prospectus”; “Applicable Time” shall be as specified in the relevant Pricing Agreement; “Statutory Prospectus” as of any time means the prospectus (including, for the avoidance of doubt, any preliminary prospectus supplement) relating to the Designated Securities that is included in the Registration Statement immediately prior to the Applicable Time, including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof, provided that for purposes of this definition, information contained in a form of prospectus that is deemed retroactively to be part of the Registration Statement pursuant to Rule 430B under the Act shall be considered to be included in the Statutory Prospectus as of the actual time that form of prospectus is filed with the Commission pursuant to Rule 424(b) under the Act; “Free Writing Prospectus” means any “free writing prospectus” as defined in Rule 405 under the Act; “Issuer Free Writing Prospectus” means any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Designated Securities; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to include the documents, if any, incorporated by reference therein pursuant to Form F-3 under the Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and so incorporated by reference; any reference to the Prospectus as amended or supplemented shall be deemed to refer to the Prospectus as amended or supplemented relating to the applicable Designated Securities in the form in which it is filed with the Commission pursuant to Rule 424 under the Act, including any documents incorporated by reference therein as of the date of such filing; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any documents filed or submitted under the Exchange Act after the date of the Registration Statement which are incorporated by reference therein;
(b) No order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission;
(c) The Statutory Prospectus, as supplemented by the final term sheet prepared and filed pursuant to Section 7(a) hereof (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not 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; each Issuer Free Writing Prospectus, if any, listed in Schedule III to the applicable Pricing Agreement, as supplemented by and taken together with the Pricing Disclosure Package, as of the Applicable Time, did not 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; provided, however that this representation and warranty shall not apply to statements or omissions made in the Pricing Disclosure Package in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use therein;
- 2 -
(d) At the time of the filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Designated Securities in reliance on the exemption provided for in Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act;
(e) At the earliest time that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Designated Securities the Company was not, and the Company is not, an “ineligible issuer,” as defined in Rule 405 under the Act, including by virtue of the Company or any subsidiary in the preceding three years having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 under the Act;
(f) The Annual Report on Form 20-F most recently filed by the Company (the “Form 20-F”) and any other documents incorporated by reference in the Prospectus or any Preliminary Prospectus, when such documents were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents, when so filed, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any Preliminary Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and will not, when so filed, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities expressly for use in the Prospectus as amended or supplemented or any Preliminary Prospectus relating to such Designated Securities;
(g) The Registration Statement, the Prospectus and the Statutory Prospectus conform, and any amendments or supplements thereto, when they become effective or are filed with the Commission, as the case may be, will conform, in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and the Registration Statement and the Prospectus did not, when they became effective (including as of the most recent effective date of the part of the Registration Statement relating to the offering of the Designated Securities as determined pursuant to Rule 430B(f)(2) under the Act) or were so filed, as the case may be, and any amendments or supplements thereto will not, when they become effective or are so filed, as the case may be, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus as amended or supplemented or any Preliminary Prospectus relating to such Designated Securities;
(h) Since the respective dates as of which information is given in the Registration Statement, the Statutory Prospectus and the Prospectus as amended or supplemented, there has not been, otherwise than as set forth or contemplated in the Statutory Prospectus and the Prospectus as amended or supplemented, (i) any material change in the share capital, undated loan capital or dated loan capital of the Company other than such changes as have been disclosed in writing to the Representatives or (ii) any material adverse change in or affecting the business, financial condition, shareholders’ equity or results of operations of the Company and its subsidiaries on a consolidated basis;
- 3 -
(i) The Company and each of its principal subsidiaries, if any, have been duly incorporated or organized and are validly existing as corporations under the laws of their respective jurisdictions of incorporation or organization with corporate power and authority to own their respective properties and conduct their respective businesses as described in the Statutory Prospectus and the Prospectus, and each has in full force and effect all permits, certificates, franchises, licenses, authorizations and similar approvals necessary in connection with the operation of its business with such exceptions as do not and will not materially adversely affect the business, financial condition, shareholders’ equity or results of operations of the Company and its subsidiaries on a consolidated basis. (The term “principal subsidiary” means any subsidiary of the Company which, together with its subsidiaries, held at the date of the latest audited financial statements included or incorporated by reference in the Prospectus more than 10% of the assets, or for the year covered by such financial statements contributed more than 10% of the revenues or net income, of the Company and its subsidiaries on a consolidated basis);
(j) All of the issued shares of share capital of the Company have been duly and validly authorized and issued, are fully paid and conform to the description thereof set forth in the Statutory Prospectus and the Prospectus as amended or supplemented, and all such shares of each principal subsidiary, if any, have been duly and validly authorized and issued, are fully paid and (except for directors’ qualifying shares or as specified in the Statutory Prospectus and the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, security interests or claims, except such (of which the Company is aware of none) as do not materially adversely affect the value of such shares or interfere with the conduct of the business of the issuer of such shares or the Company’s control over such shares and such business;
(k) The Designated Securities have been duly and validly authorized and, when the Designated Securities are issued and delivered against payment therefor pursuant to this Agreement and the Pricing Agreement relating to such Designated Securities, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the applicable Indenture; the applicable Indenture has been duly authorized by the Company, is duly qualified under the Trust Indenture Act, has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors’ rights generally or by general equity principles; the Indenture conforms, and the Designated Securities will conform, to the descriptions thereof set forth in the Prospectus or the Statutory Prospectus and the Prospectus as amended or supplemented relating to such Designated Securities;
(l) The issue and sale of the Designated Securities, and the compliance by the Company with the provisions of the Designated Securities, this Agreement, the Pricing Agreement relating to the Designated Securities, and the applicable Indenture and the consummation of the transactions contemplated herein and therein will not (to the extent relevant to the issue and sale of the Designated Securities) (i) result in a breach or violation of any provisions of the Articles of Association of the Company or (ii) result in any breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties, which breach, violation, default, creation or imposition will have a material adverse effect on the Company and its subsidiaries on a consolidated basis or have an adverse effect on the Designated Securities; and no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Designated Securities, or the consummation of the other transactions contemplated by this Agreement, the Pricing Agreement relating to the Designated Securities, the applicable Indenture, except (A) the registration under the Act of the Designated Securities, (B) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the subscription for and distribution of the Designated Securities by the Underwriters, (C) where applicable, the filing of approved listing particulars or an approved prospectus
- 4 -
or other required documentation in accordance with the rules and regulations of any securities exchange and applicable law in connection with the listing of the Designated Securities on such securities exchange, (D) the qualification of the applicable Indenture under the Trust Indenture Act and (E) such other consents, approvals, authorizations, orders, registrations or qualifications as have heretofore been, or will have been prior to each Time of Delivery (as defined in Section 5 hereof), obtained or made;
(m) There are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject, other than as set forth in the Statutory Prospectus and the Prospectus as amended or supplemented and other than litigation or proceedings which in each case will not have a material adverse effect on the business, financial condition, shareholders’ equity or results of operations of the Company and its subsidiaries on a consolidated basis; and, to the best of the Company’s knowledge, no such litigation or proceedings are threatened or contemplated by governmental authorities or threatened by others;
(n) The independent accountants of the Company who have certified certain financial statements of the Company and its subsidiaries incorporated by reference in the Statutory Prospectus and the Prospectus, are or were, as applicable, independent public accountants as required by the Act and the rules and regulations of the Commission thereunder;
(o) The offer and sale of the Designated Securities in the United States will not subject the Company to registration under, or result in a violation of, the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(p) Other than as described or set forth in the Registration Statement or the Statutory Prospectus and the Prospectus as amended or supplemented, no stamp or other similar issuance taxes or duties are payable in the United Kingdom by or on behalf of the Underwriters in connection with the issue of the Designated Securities, the issue of the Designated Securities to the Underwriters by the Company or the consummation of the other transactions contemplated hereunder; and
(q) Other than as described or set forth in the Registration Statement or the Statutory Prospectus and the Prospectus as amended or supplemented, under current law applicable in the United Kingdom, all payments by the Company in respect of the Designated Securities may be made without withholding or deduction for or on account of any taxes, duties assessments or charges of whatever nature imposed or levied by or on behalf of the United Kingdom or any political subdivision thereof or any authority therein or thereof having power to tax.
3. (a) Each Underwriter represents, warrants and agrees with the Company that, in connection with the sale and distribution of the Designated Securities,
(i) in relation to any Designated Securities having a maturity of less than one year: (1) it is a person whose ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business; and (2) it has not offered or sold and will not offer or sell any securities other than to persons:
(A) whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or
(B) who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses,
where the issue of the securities would otherwise constitute a contravention of Section 19 of the Financial Services and Markets Act 2000, as amended (the “FSMA”) by the Company;
- 5 -
(ii) directly or indirectly, it (1) has only communicated or caused to be communicated, and will only communicate or cause to be communicated, an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Designated Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and (2) has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Designated Securities in, from or otherwise involving the United Kingdom;
(b) Each Underwriter represents, warrants and agrees with the Company that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Designated Securities to any retail investor in the United Kingdom. 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 of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or
(ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law of the United Kingdom by virtue of the EUWA; or
(iii) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law of the United Kingdom by virtue of the EUWA (the “UK Prospectus Regulation”); and
the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Designated Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Designated Securities;
(c) If the relevant Pricing Agreement specifies that the restriction set out in Section 3(b) above does not apply, each Underwriter represents, warrants and agrees with the Company that in relation to the United Kingdom, it has not made and will not make an offer of the Designated Securities to the public in the United Kingdom, other than:
(i) Qualified investors: at any time to any legal entity which is a qualified investor as defined in Article 2 of the UK Prospectus Regulation;
(ii) Fewer than 150 offerees: at any time to fewer than 150 natural or legal persons (other than qualified investors as defined in Article 2 of the UK Prospectus Regulation), as permitted under the UK Prospectus Regulation, subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the Company for any such offer; or
(iii) Other exempt offers: at any time in any other circumstances falling within section 86 of the FSMA,
provided, that no such offer of the Designated Securities referred to in (i) to (iii) above shall require any Underwriter or the Company to publish a prospectus pursuant to section 85 of the FSMA or supplement a prospectus pursuant to Article 23 of the UK Prospectus Regulation.
For the purposes of this provision, the expression an “offer of the Designated Securities to the public” in relation to any Designated Securities in the United Kingdom means the communication in any form and by any means of sufficient information on the terms of the offer and the Designated Securities to be offered so as to enable an investor to decide to purchase or subscribe the Designated Securities;
- 6 -
(d) Each Underwriter represents, warrants and agrees with the Company that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Designated Securities to any retail investor in the European Economic Area. 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, “EU MiFID II”); or
(ii) a customer within the meaning of Directive (EU) 2016/97 (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of EU MiFID II; or
(iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “EU Prospectus Regulation”); and
the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Designated Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Designated Securities;
(e) If the relevant Pricing Agreement specifies that the restriction set out in Section 3(d) above does not apply, each Underwriter represents, warrants and agrees with the Company that in relation to each Member State of the European Economic Area (each, a “Member State”), it has not made and will not make an offer of the Designated Securities to the public in that Member State, except that it may make an offer of the Designated Securities to the public in that Member State:
(i) Qualified investors: at any time to any legal entity which is a qualified investor as defined in the EU Prospectus Regulation;
(ii) Fewer than 150 offerees: at any time to fewer than 150 natural or legal persons (other than qualified investors as defined in the EU Prospectus Regulation), as permitted under the EU Prospectus Regulation, subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the Company for any such offer; or
(iii) Other exempt offers: at any time in any other circumstances falling within Article 1(4) of the EU Prospectus Regulation,
provided, that no such offer of the Designated Securities referred to in (i) to (iii) above shall require any Underwriter or the Company to publish a prospectus pursuant to Article 3 of the EU Prospectus Regulation or supplement a prospectus pursuant to Article 23 of the EU Prospectus Regulation.
For the purposes of this provision, the expression an “offer of the Designated Securities to the public” in relation to any Designated Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Designated Securities to be offered so as to enable an investor to decide to purchase or subscribe the Designated Securities;
(f) Each Underwriter represents, warrants and agrees with the Company, with respect to sales of the Designated Securities in Canada, that, directly or indirectly, it shall sell the Designated Securities only to purchasers purchasing as principal that are both “accredited investors” as defined in National Instrument 45-106 Prospectus Exemptions or section 73.3 of the Securities Act (Ontario) and “permitted clients” as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations; and
(g) Each Underwriter agrees that a determination will be made in relation to each issue about whether, for the purpose of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the “MiFID Product Governance Rules”) and/or the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”), as applicable, any Underwriter subscribing for any Designated Securities is a manufacturer in respect of such Designated Securities, but
- 7 -
that, otherwise, neither the Underwriters nor any of their respective affiliates will be a manufacturer for the purpose of the MiFID Product Governance Rules and/or UK MiFIR Product Governance Rules, respectively.
4. The several Underwriters are offering the Designated Securities for sale upon the terms and conditions set forth in the Statutory Prospectus and the Prospectus as amended and supplemented relating to such Designated Securities.
The total aggregate principal amount of Designated Securities to be subscribed for by all the Underwriters pursuant to such Pricing Agreement shall be the aggregate principal amount of Designated Securities set forth in Schedule I to such Pricing Agreement.
5. Designated Securities to be subscribed for by each Underwriter pursuant to the Pricing Agreement will be represented by one or more global securities in book-entry form which will be deposited by, or on behalf of, the Company with DTC or its designated custodian, in each case against payment by such Underwriter or on its behalf of the subscription price therefor payable to the order of the Company in same day funds. The time, place and date of such delivery of and payment for Designated Securities shall be as specified in such Pricing Agreement, or at such other time, place and date as the Representatives and the Company may agree upon in writing. Such time and date for delivery of the Designated Securities is herein called the “Time of Delivery”.
6. The Company agrees with each of the Underwriters of Designated Securities:
(a) To prepare the Prospectus, as amended or supplemented in relation to the applicable Designated Securities, in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of the Pricing Agreement relating to such Designated Securities, or, if applicable, such earlier time as may be required by Rule 424(b) under the Act; to make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the Pricing Agreement relating to such Designated Securities and prior to the Time of Delivery for such Designated Securities which shall be disapproved by the Representatives for such Designated Securities promptly after reasonable notice thereof; to advise the Representatives, promptly after it receives notice thereof, of the time when the Registration Statement, or any amendment thereto, has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly all reports required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or a notice in lieu of a prospectus pursuant to Rule 173(a) under the Act) is required in connection with the offering or sale of such Designated Securities, and during such period to advise the Representatives, as soon as practicable after the Company receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act relating to the Designated Securities, of the suspension of the qualification of such Designated Securities, for offering or sale in any U.S. jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any such Preliminary Prospectus or Prospectus, or of any such notice of objection or of any such suspension of any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To pay the required Commission filing fees relating to the Designated Securities in accordance with the applicable provisions of the Act and the rules adopted thereunder;
(c) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Designated Securities for offering and sale under the securities laws of such U.S. jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of
- 8 -
such Designated Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or to take any other action which would subject it to service of process in suits other than those arising out of the offering or sale of such Designated Securities in any U.S. jurisdiction;
(d) To furnish the Underwriters with copies of the Pricing Disclosure Package, the Prospectus as amended or supplemented and the Form 20-F and any other documents incorporated by reference in the Prospectus as amended or supplemented in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of a prospectus (or a notice in lieu of a prospectus pursuant to Rule 173(a) under the Act) is required in connection with the offering or sale of such Designated Securities at any time prior to the expiration of nine months from the date on which the offering of such Designated Securities commenced (the “Commencement Date”) and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or a notice in lieu of a prospectus pursuant to Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus (or a notice in lieu of a prospectus pursuant to Rule 173(a) under the Act) in connection with sales of any of such Designated Securities at any time nine months or more after the Commencement Date, upon the request of the Representatives but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as the Representatives may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; provided, however, that if after the 90th day after the Commencement Date compliance with the foregoing provisions of this Section 6(d) would, in the opinion of United States counsel for the Company, require inclusion in the Prospectus of financial statements or portions thereof not theretofore made publicly available by the Company, or if the staff of the Commission shall require the inclusion of such financial statements, the Company shall not be required to amend or supplement such Prospectus on or before April 30 of the year in which the next Annual Report on Form 20-F of the Company is required to be filed with the Commission under the Exchange Act;
(e) To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c)), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158);
(f) Unless otherwise specified in the Pricing Agreement, during the period beginning from the date of the applicable Pricing Agreement relating to such Designated Securities and continuing to and including the earlier of (i) the termination of trading restrictions for such Designated Securities, as notified to the Company by the Representatives, and (ii) the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of any securities of the Company (other than pursuant to employee stock option or incentive plans or on the conversion of convertible securities outstanding on the date of this Agreement) which are substantially similar to such Designated Securities, without the prior written consent of the Representatives; and
(g) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by the Representatives promptly after reasonable notice thereof.
- 9 -
7. (a) The Company agrees to prepare a final term sheet, containing solely a description of the Designated Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(b) The Company and each Underwriter agree that the Underwriters may prepare and use any Free Writing Prospectus (i) which
contains only information describing the preliminary terms of the Designated Securities or their offering, (ii) which contains only information that (A) describes the final terms of the Designated Securities or their offering and
(B) is included in the final term sheet described in Section 7
(a) above or (iii) that is otherwise required to be filed with the Commission.
(c) Each Underwriter represents that, other than as permitted under Section 7(b) above, it has not made and will not make any offer relating to the Designated Securities that would constitute a Free Writing Prospectus without the prior consent of the Company and that Schedule III to the applicable Pricing Agreement is a complete list of any free writing prospectus for which the Underwriters have received such consent.
(d) The Company represents and agrees that it has not made and will not make any offer relating to the Designated Securities that would constitute an Issuer Free Writing Prospectus without the prior consent of the Underwriters and that Schedule III to the applicable Pricing Agreement is a complete list of any Issuer Free Writing Prospectuses for which the Company has received such consent.
(e) The Company represents, warrants and agrees that it has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus and that such Issuer Free Writing Prospectus will comply in all material respects with the requirements of the Act, including timely filing with the Commission or retention where required and legending.
(f) The Company represents, warrants and agrees that if at any time prior to the time the Prospectus is filed with the Commission, any event occurred or occurs as a result of which the Pricing Disclosure Package conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Designated Securities) or the Statutory Prospectus or included or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter a Pricing Disclosure Package as amended or supplemented which will correct such conflict, untrue statement or omission; provided, however, that the Company will prepare and furnish with charge to each Underwriter a Pricing Disclosure Package as amended or supplemented if such Pricing Disclosure Package was amended or supplemented solely as a result of an untrue statement or omission made in the Pricing Disclosure Package made in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use therein.
8. Except where otherwise provided in the applicable Pricing Agreement, the Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following to the extent applicable: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Designated Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and (except as otherwise expressly provided in Section 6(d) hereof) amendments and supplements thereto; (ii) the cost of printing or producing this Agreement, any Pricing Agreement, the Indentures, and any Blue Sky and Legal Investment Memoranda; (iii) all expenses in connection with the qualification of the Designated Securities for offering and sale under state securities laws as provided in Section 6(c) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by any securities rating services for rating the Designated Securities; (v) any filing fees incident to securing any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Designated Securities; (vi) all expenses in connection
- 10 -
with the obtaining of any approval of the Company’s shareholders to the allotment and issuance of the Designated Securities; (vii) all expenses and listing fees in connection with the listing of the Designated Securities on any securities exchange; (viii) the cost of preparing and authenticating certificates for the Designated Securities; (ix) the fees and expenses of the Trustee, any agent of the Trustee and the fees and disbursements for counsel of the Trustee in connection with the Designated Securities and the Indentures; (x) the costs and charges of any transfer agent or registrar; (xi) all stamp, registration and other similar taxes and duties payable in connection with the issue of the Designated Securities as contemplated by this Agreement; (xii) all expenses incurred for preparing, reproducing and filing any Issuer Free Writing Prospectus; and (xiii) all other costs and expenses incident to the performance of its obligations hereunder, under the applicable Pricing Agreement which are not otherwise specifically provided for in this Section 8. It is understood, however, that, except as provided in this Section 8, Section 6(d), Section 10 and Section 13 hereof and in the Pricing Agreement, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on sales of any of the Designated Securities by them (excluding, for the avoidance of doubt, sales contemplated by this Agreement), and any advertising expenses connected with any offers they may make.
9. The obligations of the Underwriters under the Pricing Agreement relating to such Designated Securities shall be subject, in their reasonable discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the Time of Delivery, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and, except as otherwise provided in the Pricing Agreement, the following additional conditions:
(a) The final term sheet contemplated by Section 7(a) shall have been filed by the Company with the Commission within the time period prescribed by Rule 433(d) under the Act; the Prospectus as amended or supplemented shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations of the Commission under the Act and in accordance with Section 6(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; and all requests to the Company for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
(b) United States and (if requested) English legal counsel for the Underwriters shall have furnished to the Representatives such opinion or opinions, dated such Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives;
(c) Cleary Gottlieb Steen & Hamilton LLP, United States legal counsel for the Company, shall have furnished to the Representatives their written opinion, dated such Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives;
(d) Clifford Chance LLP, English legal counsel for the Company, shall have furnished to the Representatives their written opinion, dated the Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives;
(e) At the Applicable Time relating to such Designated Securities and also at the Time of Delivery for such Designated Securities, the independent accountants of the Company shall have furnished to the Representatives a letter or letters, dated the date of the Applicable Time and a letter dated such Time of Delivery, respectively, in form and substance reasonably satisfactory to the Representatives to the effect set forth in Annex I to the Pricing Agreement;
(f) Since the Applicable Time relating to the Designated Securities, there shall not have been, otherwise than as set forth or contemplated in the Statutory Prospectus and the Prospectus as amended or supplemented, (i) any material change in the share capital, undated loan capital or dated loan capital of the Company other than such changes as have been disclosed to the Representatives, or (ii) any material change in or affecting the business, financial condition, shareholders’ equity or results of operations of the Company and its subsidiaries on a consolidated basis, the effect of which in each case is, in the
- 11 -
Representatives’ judgment after consultation with the Company, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities, on the terms and in the manner contemplated in the Statutory Prospectus and the Prospectus as amended or supplemented;
(g) Since the Applicable Time relating to the Designated Securities, (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by Moody’s Investors Service Ltd. or S&P Global Ratings UK Limited and (ii) neither such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock;
(h) Since the Applicable Time relating to the Designated Securities (i) neither the United States nor the United Kingdom
shall have become engaged in hostilities which have resulted in the declaration of a national emergency or war, (ii) there shall not have been any generally published change or development involving a prospective change in U.S. or United
Kingdom taxation directly affecting the Designated Securities or the imposition of exchange controls by the United States or the United Kingdom, (iii) there shall not have been a suspension or material limitation in trading in securities
generally or in securities of the Company on the New York Stock Exchange or the London Stock Exchange, or a general moratorium on commercial banking activities in New York declared by either U.S. federal or
New York state authorities or a
general moratorium on commercial banking activities in the United Kingdom declared by authorities in the United Kingdom, the effect of which in the case of (i), (ii) or (iii), in the judgment of the Representatives after consultation with the
Company, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Statutory Prospectus and the Prospectus as amended or supplemented;
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities, certificates of directors or officers of the Company, reasonably satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery and as to the performance by the Company of all its obligations hereunder to be performed at or prior to such Time of Delivery, and the Company shall have furnished to the Representatives certificates of directors or officers of the Company, reasonably satisfactory to the Representatives, as to the matters set forth in Section 9(a) hereof; and
(j) The Company shall have furnished or caused to be furnished such other documents as reasonably requested by the Representatives and set forth in the Pricing Agreement.
10. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Statutory Prospectus, the Prospectus as amended or supplemented, the Pricing Disclosure Package, any Issuer Free Writing Prospectus, any “issuer information” (as defined in Rule 433(h)(2) under the Act) filed or required to be filed pursuant to Rule 433(d) under the Act and any other prospectus relating to the Designated Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Statutory Prospectus, the Pricing Disclosure Package, the Prospectus as amended or supplemented, any Issuer Free Writing Prospectus, any other prospectus relating to the Designated Securities or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use therein.
- 12 -
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Statutory Prospectus, the Pricing Disclosure Package, the Prospectus as amended or supplemented, any Issuer Free Writing Prospectus and any other prospectus relating to the Designated Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Statutory Prospectus, the Pricing Disclosure Package, the Prospectus, as amended or supplemented, any Issuer Free Writing Prospectus and any other prospectus relating to the Designated Securities, or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 10 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of
- 13 -
the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Designated Securities and not joint.
(e) The obligations of the Company under this Section 10 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 10 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with this consent, is named in the Registration Statement, as about to become a director of the Company), to the authorized representative of the Company in the United States and to each person, if any, who controls the Company within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to subscribe for the Designated Securities for which it has agreed to subscribe under the Pricing Agreement relating to the Designated Securities at a Time of Delivery, the Representatives may in their discretion arrange for themselves or another party or other parties to subscribe for such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the subscription for such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to subscribe for such Designated Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that they have so arranged for the subscription for such Designated Securities, or the Company notifies the Representatives that it has so arranged for the subscription for such Designated Securities, the Representatives or the Company shall have the right to postpone such Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package, the Statutory Prospectus or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement, the Pricing Disclosure Package, the Statutory Prospectus or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 11 with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the subscription for the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount or number of such Designated Securities which remains unsubscribed for does not exceed one-eleventh of the aggregate principal amount or number of all the Designated Securities to be subscribed for at such Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to subscribe for the Designated Securities for which such Underwriter agreed to subscribe hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to subscribe for its pro rata share (based on the principal amount or number of Designated Securities for which such Underwriter agreed to subscribe hereunder) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
- 14 -
(c) If, after giving effect to any arrangements for the subscription for the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount or number of such Designated Securities which remains unsubscribed for exceeds one-eleventh of the aggregate principal amount or number of all the Designated Securities to be subscribed for at such Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to subscribe for Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 10 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Designated Securities.
13. If any Pricing Agreement shall be terminated pursuant to Section 11 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Designated Security covered by such Designated Securities except as provided in Section 8 and Section 10 hereof; but, if for any other reason, any Designated Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the subscription for, sale and delivery of the such Designated Securities not so delivered, but the Company shall then be under no further liability to any Underwriter except as provided in Section 8 and Section 10 hereof.
14. In all dealings hereunder, the Representatives of the Underwriters of the Designated Securities shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such Representatives, if any, as may be designated for such purpose in the Pricing Agreement relating to such Designated Securities.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be sufficient in all respects if delivered or sent by email or registered mail to the applicable address of the Representatives as set forth in the Pricing Agreement relating to the Designated Securities; and if to the Company shall be delivered or sent by email or registered mail to the applicable address of the Company set forth in the Registration Statement, Attention: Barclays PLC Treasury; provided, however, that any notice to an Underwriter pursuant to Section 10(c) hereof shall be delivered or sent by registered mail to such Underwriter at its address set forth in the Pricing Agreement. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
15. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 10 and 12 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any of the Designated Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
16. The Company acknowledges and agrees that: (i) the issue and subscription of the Designated Securities pursuant to this Agreement and each Pricing Agreement, including the determination of the public offering price of the Designated 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; (ii) in connection with each transaction contemplated hereby and the process leading to each such transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its affiliates (other than, if applicable, itself), stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to any of the transactions
- 15 -
contemplated hereby or the process leading thereto (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 (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.
17. The Company agrees that any legal suit, action or proceeding brought by any Underwriter or by any person controlling any Underwriter, arising out of or based upon this Agreement or any Pricing Agreement may be instituted in any state or federal court in The City and State of New York, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the jurisdiction of such courts in any such proceeding. The Company hereby designates Barclays Bank PLC (New York Branch) as its authorized agent (the “Authorized Agent”) upon which process may be served in any action based on this Agreement or any Pricing Agreement which may be instituted in any state or federal court in The City and State of New York by an Underwriter and expressly accepts the jurisdiction of any such court in respect of such action. Such designation shall be irrevocable. The Company represents and warrants that it will cause Barclays Bank PLC (New York Branch) to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such designation in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company (mailed or delivered to the Company at its respective address as aforesaid) shall be deemed, in every respect, effective service of process upon the Company. Notwithstanding the foregoing, any action based on this Agreement or any Pricing Agreement may be instituted by any Underwriter in any competent court in England.
18. Time shall be of the essence of each Pricing 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.
19. This Agreement and each Pricing Agreement shall be governed by,
and construed in accordance, with the laws of the State of
New York.
20. Where a resolution measure is taken in relation to any BRRD undertaking or any member of the same group as that BRRD undertaking and that BRRD undertaking or any member of the same group as that BRRD undertaking is a party to this Agreement and/or the Pricing Agreement (any such party to this Agreement or the Pricing Agreement being an “Affected Party”), each other party to this Agreement or the Pricing Agreement, as applicable, agrees that it shall only be entitled to exercise any termination right under this Agreement or the Pricing Agreement, as applicable, against the Affected Party to the extent that it would be entitled to do so under the Special Resolution Regime if this Agreement or the Pricing Agreement, as applicable, were governed by the laws of any part of the United Kingdom. For the purpose of this clause, “resolution measure” means a “crisis prevention measure,” “crisis management measure” or “recognised third-country resolution action,” each with the meaning given in the “PRA Rulebook: CRR Firms and Non-Authorised Persons: Stay in Resolution Instrument 2015,” as may be amended from time to time (the “PRA Contractual Stay Rules”), provided, however, that “crisis prevention measure” shall be interpreted in the manner outlined in Rule 2.3 of the PRA Contractual Stay Rules; “BRRD undertaking,” “group,” “Special Resolution Regime” and “termination right” have the respective meanings given in the PRA Contractual Stay Rules.
21. Notwithstanding and to the exclusion of any other term of this Agreement, the Pricing Agreement or any other agreements, arrangements, or understanding between each Covered Party and each Counterparty, each Counterparty acknowledges and accepts that a Bail-in Liability arising under this Agreement or the Pricing Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(a) the effect of the exercise of the relevant Bail-in Powers by the Relevant Resolution Authority in relation to any Bail-in Liability of each Covered Party to such Counterparty under this Agreement or the Pricing Agreement, that (without limitation) may include and result in any of the following, or some combination thereof;
- 16 -
(i) the reduction of all, or a portion, of such Bail-in Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of such Bail-in Liability into shares, other securities or other obligations of the relevant Covered Party or another person, and the issue to or conferral on such Counterparty of such shares, securities or obligations;
(iii) the cancellation of such Bail-in Liability; or
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;
(b) the variation of the terms of this Agreement or the Pricing Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
For the purposes of this provision:
“Bail-in Legislation” means (i) in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time (the “EU Bail-in Legislation”), and (ii) in relation to the U.K., Part I of the UK Banking Act 2009, as amended, and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings) (the “UK Bail-in Legislation”)
“Bail-in Liability” means a liability in respect of which the relevant Bail-in Powers may be exercised.
“Bail-in Powers” means (i) in relation to a member state of the European Economic Area which has implemented, or which implements, the BRRD, any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant EU Bail-in Legislation, or (ii) in relation to the U.K., the U.K. Write-down and Conversion Powers.
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended or replaced from time to time.
“Counterparty” means each party to this Agreement and/or the Pricing Agreement, as the case may be, other than the relevant Covered Party, that is a counterparty of such Covered Party.
“Covered Party” means any party to this Agreement and/or any Pricing Agreement subject to the applicable Bail-in Legislation.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at the LMA website (as of the date of this Agreement at https://www.lma.eu.com/documents-guidelines/eu-bail-legislation-schedule under EU Bail-in Legislation Schedule.
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the relevant Covered Party.
“U.K. Write-down and Conversion Powers” means the powers under the U.K. Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, transfer, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
- 17 -
22. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, 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 of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights 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 the purposes of this provision:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
23. Each Pricing Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
[Signature Page Follows]
- 18 -
| Very truly yours, |
| BARCLAYS PLC |
| /s/ Miray Muminoglu |
| Name: Miray Muminoglu |
| Title: Managing Director |
| Date: March 3, 2021 |
[Signature Page to Debt Securities Underwriting Agreement]
Annex 1
Pricing Agreement
[●]
[●]
As representative of the several Underwriters named in Schedule I (the “Representative”)
Ladies and Gentlemen:
Barclays PLC (the “Company”) proposes to issue $[●] aggregate principal amount of [●]% [Senior][Subordinated] Notes due [●] (the “Notes”). Each of the Underwriters hereby undertakes to purchase at the subscription price set forth in Schedule II hereto, the amount of Notes set forth opposite the name of such Underwriter in Schedule I hereto, such payment to be made at the Time of Delivery set forth in Schedule II hereto. The obligations of the Underwriters hereunder are several but not joint.
Each of the provisions of the Underwriting Agreement—Standard Provisions, dated [●] (the “Underwriting Agreement”), is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Agreement, except that each representation and warranty with respect to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation and warranty as of the date of the Prospectus and also a representation and warranty as of the date of this Agreement in relation to the Prospectus as amended or supplemented relating to the Notes. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representative designated to act on behalf of each of the Underwriters of Designated Securities pursuant to Section 14 of the Underwriting Agreement and the address referred to in such Section 14 is set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you, is now proposed to be filed with the Commission.
The Applicable Time for purposes of this Pricing Agreement is [●] New York time on [●]. Each “free writing prospectus” as defined in Rule 405 under the Securities Act for which each party hereto has received consent to use in accordance with Section 7 of the Underwriting Agreement is listed in Schedule III hereto and is attached as Exhibit A hereto.
[Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the “MiFID Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the MiFID Product Governance Rules, (a) [●]/[each of the Underwriters designated an EU Manufacturer on Schedule II hereto] ([each an]/[the] “EU Manufacturer” [and together “the EU Manufacturers”]) acknowledges [to each other EU Manufacturer] that it understands the responsibilities conferred upon it under the MiFID Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Notes and the related information set out in the [Registration Statement, the Prospectus, any Preliminary Prospectus, any Free Writing Prospectus or Issuer Free Writing Prospectus and any other announcements] in connection with the Notes and (b) each of the Underwriters that is not an EU Manufacturer and the Company notes the application of the MiFID Product Governance Rules and acknowledges the target market and distribution channels identified as applying to the Notes by the EU Manufacturer[s] and the related information set out in the [Registration Statement, the Prospectus, any Preliminary Prospectus, any Free Writing Prospectus or Issuer Free Writing Prospectus and any other announcements] in connection with the Notes.]
[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, (a) each of the Underwriters designated a UK Manufacturer on Schedule II hereto ([each a] [the] “UK Manufacturer” [and together, the “UK Manufacturers”]) acknowledges [to each other UK Manufacturer] that it understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Notes and the related information set out in the [Registration Statement, the Prospectus, any Preliminary Prospectus, any Free Writing Prospectus or Issuer Free Writing Prospectus and any other announcements] in connection with the Notes and (b) each of the Underwriters who is not a UK Manufacturer and the Company notes the application of the UK MiFIR Product Governance Rules and acknowledges the target market and distribution channels identified as applying to the Notes by the UK Manufacturer[s] and the related information set out in the [Registration Statement, the Prospectus, any Preliminary Prospectus, any Free Writing Prospectus or Issuer Free Writing Prospectus and any other announcements] in connection with the Notes.]
If the foregoing is in accordance with your understanding, please sign and return to us the counterpart hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters on the one hand and the Company on the other.
[Signature Page Follows]
| Very truly yours, |
| BARCLAYS PLC |
|
|
| Name: |
| Title: |
Accepted as of the date hereof at New York, New York
On behalf of itself and each of the other Underwriters
[●]
|
|
| Name: |
| Title: |
[Signature Page to Debt Securities Pricing Agreement]
SCHEDULE I
| Underwriter |
Principal Amount of Notes | |||||
| [●] |
$ | [ | ●] | |||
| [●] |
$ | [ | ●] | |||
| [●] |
$ | [ | ●] | |||
| Total |
$ | [ | ●] | |||
SCHEDULE II
Title of Designated Securities:
[●]% [Senior][Subordinated] Notes due [●]
Price to Public:
[●]% of principal amount
Subscription Price by Underwriters:
[●]% of principal amount
Form of Designated Securities:
The Notes will be represented by one or more global notes registered in the name of Cede & Co., as nominee of The Depository Trust Company issued pursuant to the [Senior Debt Indenture dated January 17, 2018 (as heretofore amended and supplemented)] [Dated Subordinated Debt Indenture dated May 9, 2017 (as heretofore amended and supplemented)] between Barclays PLC and The Bank of New York Mellon, as supplemented by the [●] Supplemental Indenture to be dated on or about [●].
Securities Exchange, if any:
[None] [●]
Maturity Date:
The stated maturity of the principal of the Notes will be [●].
Interest Rate:
Interest will accrue on the Notes from the date of their issuance. Interest will accrue on the Notes at a rate of [●]% per year from and including the date of issuance.
Interest Payment Dates:
Interest will be payable semi-annually in arrear on [●] and [●] of each year, commencing on [●].
Record Dates:
The Business Day immediately preceding each Interest Payment Date (or, if the Notes are held in definitive form, the 15th Business Day preceding each Interest Payment Date).
Sinking Fund Provisions:
No sinking fund provisions.
Optional Redemption:
[The Notes are redeemable as described under “Description of [Senior][Subordinated] Notes—Optional Redemption” in the Prospectus Supplement (as defined below).]
Tax Redemption:
[The Notes are redeemable as described under “Description of [Senior][Subordinated] Notes—Tax Redemption” in the Prospectus Supplement (as defined below).]
Regulatory Event Redemption:
[The Notes are redeemable as described under “Description of Subordinated Notes—Regulatory Event Redemption” in the Prospectus Supplement (as defined below).]
Loss Absorption Disqualification Event Redemption:
[The Notes are also redeemable as described under “Description of [Senior] Notes—Loss Absorption Disqualification Event Redemption” in the Prospectus Supplement (as defined below).]
Time of Delivery:
[●] by [9:30 a.m.] New York time.
Specified Funds for Payment of Subscription Price of Designated Securities:
By wire transfer to a bank account specified by the Company in same day funds.
Value Added Tax:
(a) If the Company is obliged to pay any sum to the Underwriters under this Agreement and any value added tax (“VAT”) is properly charged on such amount, the Company shall pay to the Underwriters an amount equal to such VAT on receipt of a valid VAT invoice;
(b) If the Company is obliged to pay a sum to the Underwriters under this Agreement for any fee, cost, charge or expense properly incurred under or in connection with this Agreement (the “Relevant Cost”) and no VAT is payable by the Company in respect of the Relevant Cost under paragraph (a) above, the Company shall pay to the Underwriters an amount which:
(i) if for VAT purposes the Relevant Cost is consideration for a supply of goods or services made to the Underwriters, is equal to any input VAT incurred by the Underwriters on that supply of goods and services, but only if and to the extent that the Underwriters are unable to recover such input VAT from HM Revenue & Customs (whether by repayment or credit) provided, however, that the Underwriters shall reimburse the Company for any amount paid by the Company in respect of irrecoverable input VAT pursuant to this paragraph (i) if and to the extent such input VAT is subsequently recovered from HM Revenue & Customs (whether by repayment or credit);
(ii) if for VAT purposes the Relevant Cost is a disbursement properly incurred by the Underwriters under or in connection with this Agreement as agent on behalf of the Company, is equal to any VAT paid on the Relevant Cost by the Underwriters provided, however, that the Underwriters shall use best endeavors to procure that the actual supplier of the goods or services which the Underwriters received as agent issues a valid VAT invoice to the Company.
Closing Location:
[●]
Name and address of Representative:
Designated Representative: [●]
Address for Notices:
[●]
[Selling Restrictions:
[●]]
[EU Manufacturers:
[●]
[●]]
[UK Manufacturers:
[●]
[●]]
Other Terms and Conditions:
As set forth in the prospectus supplement dated [●] relating to the Notes (the “Prospectus Supplement”), incorporating the Prospectus dated [●] relating to the Notes (the “Base Prospectus”).
SCHEDULE III
Issuer Free Writing Prospectus:
Final Term Sheet, dated [●], attached hereto as Exhibit A.
EXHIBIT A
Final Term Sheet, dated [●]
Exhibit 1.2
Pricing Agreement
March 3, 2021
Barclays Capital Inc.
As representative of the several Underwriters
named in Schedule I (the “Representative”)
Ladies and Gentlemen:
Barclays PLC (the “Company”) proposes to issue $1,000,000,000 aggregate principal amount of 2.667% Fixed Rate Resetting Senior Callable Notes due 2032 (the “Notes”). Each of the Underwriters hereby undertakes to purchase at the subscription price set forth in Schedule II hereto, the amount of Notes set forth opposite the name of such Underwriter in Schedule I hereto, such payment to be made at the Time of Delivery set forth in Schedule II hereto. The obligations of the Underwriters hereunder are several but not joint.
Each of the provisions of the Underwriting Agreement—Standard Provisions, dated March 3, 2021 (the “Underwriting Agreement”), is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Agreement, except that each representation and warranty with respect to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation and warranty as of the date of the Prospectus and also a representation and warranty as of the date of this Agreement in relation to the Prospectus as amended or supplemented relating to the Notes. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representative designated to act on behalf of each of the Underwriters of Designated Securities pursuant to Section 14 of the Underwriting Agreement and the address referred to in such Section 14 is set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you, is now proposed to be filed with the Commission.
The Applicable Time for purposes of this Pricing Agreement is 5:00 p.m. New York time on March 3, 2021. Each “free writing prospectus” as defined in Rule 405 under the Securities Act for which each party hereto has received consent to use in accordance with Section 7 of the Underwriting Agreement is listed in Schedule III hereto and is attached as Exhibit A hereto.
Singapore Securities and Futures Act Product Classification
Solely for the purposes of its obligations pursuant to sections 309B(1)(a) and 309B(1)(c) of the Securities and Futures Act (Chapter 289 of Singapore) (the “SFA”), the Company has determined, and hereby notifies all relevant persons (as defined in Section 309A of the SFA) that the Notes are “prescribed capital markets products” (as defined in the Securities and Futures (Capital Markets Products) Regulations 2018).
If the foregoing is in accordance with your understanding, please sign and return to us the counterpart hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters on the one hand and the Company on the other.
[Signature Page Follows]
| Very truly yours, |
| BARCLAYS PLC |
| /s/ Miray Muminoglu |
| Name: Miray Muminoglu |
| Title: Managing Director |
Accepted as of the date hereof
at New York, New York
On behalf of itself and each of the other Underwriters
| BARCLAYS CAPITAL INC. |
| /s/ Ken Chang |
| Name: Ken Chang |
| Title: Managing Director |
[Signature Page to Pricing Agreement]
SCHEDULE I
| Underwriters |
Principal Amount of the Notes |
|||
| Barclays Capital Inc. |
$ | 700,000,000 | ||
| BNP Paribas Securities Corp. |
$ | 27,500,000 | ||
| CIBC World Markets Corp. |
$ | 27,500,000 | ||
| J.P. Morgan Securities LLC |
$ | 27,500,000 | ||
| Lloyds Securities Inc. |
$ | 27,500,000 | ||
| RBC Capital Markets, LLC |
$ | 27,500,000 | ||
| Santander Investment Securities Inc. |
$ | 27,500,000 | ||
| Skandinaviska Enskilda Banken AB (publ) |
$ | 27,500,000 | ||
| Société Générale |
$ | 27,500,000 | ||
| Bankinter S.A. |
$ | 10,000,000 | ||
| Capital One Securities, Inc. |
$ | 10,000,000 | ||
| Citigroup Global Markets Inc. |
$ | 10,000,000 | ||
| Mischler Financial Group, Inc. |
$ | 10,000,000 | ||
| Rabo Securities USA, Inc. |
$ | 10,000,000 | ||
| Stern Brothers & Co. |
$ | 10,000,000 | ||
| UBS Securities LLC |
$ | 10,000,000 | ||
| U.S. Bancorp Investments, Inc. |
$ | 10,000,000 | ||
| Total |
$ | 1,000,000,000 | ||
SCHEDULE II
Title of Designated Securities:
$1,000,000,000 2.667% Fixed Rate Resetting Senior Callable Notes due 2032.
Price to Public:
100.000% of principal amount.
Subscription Price by Underwriters:
99.550% of principal amount.
Form of Designated Securities:
The Notes will be represented by one or more global notes registered in the name of Cede & Co., as nominee of The Depository Trust Company issued pursuant to the Senior Debt Securities Indenture dated January 17, 2018 (as heretofore amended and supplemented) between Barclays PLC and The Bank of New York Mellon, London Branch, as trustee (the “Trustee”), as supplemented by the Tenth Supplemental Indenture to be dated on or about March 10, 2021, among Barclays PLC, the Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar.
Securities Exchange, if any:
The New York Stock Exchange.
Maturity Date:
The stated maturity of the principal of the Notes will be March 10, 2032 (the “Maturity Date”).
Interest Rate:
From (and including) the Issue Date to (but excluding) the Reset Date, the Notes will bear interest at a rate of 2.667% per annum.
From (and including) the Reset Date to (but excluding) the Maturity Date, the applicable per annum interest rate will be equal to the sum, as determined by the Calculation Agent, of the then-prevailing U.S. Treasury Rate (such term subject to the provisions described under “Description of Senior Notes” in the Preliminary Prospectus Supplement (as defined below)), on the Reset Determination Date, plus the Margin.
Capitalized terms not otherwise defined in this section have the meaning set forth in the Preliminary Prospectus Supplement, as supplemented by the final term sheet dated March 3, 2021 for the Notes.
Interest Payment Dates:
Interest will be payable on the Notes semi-annually in arrear on March 10 and September 10 of each year, commencing on September 10, 2021.
Day Count:
30/360, Following, Unadjusted.
Regular Record Dates:
The close of business on the Business Day immediately preceding each Interest Payment Date (or, if the Notes are held in definitive form, the close of business on the 15th Business Day preceding each applicable Interest Payment Date).
Sinking Fund Provisions:
No sinking fund provisions.
Optional Redemption:
The Notes are redeemable as described under “Description of Senior Notes—Optional Redemption” in the Preliminary Prospectus Supplement, as supplemented by the final term sheet dated March 3, 2021 for the Notes.
Tax Redemption:
The Notes are also redeemable as described under “Description of Senior Notes—Tax Redemption” in the Preliminary Prospectus Supplement.
Loss Absorption Disqualification Event Redemption:
The Notes are also redeemable as described under “Description of Senior Notes—Loss Absorption Disqualification Event Redemption” in the Preliminary Prospectus Supplement.
Time of Delivery:
March 10, 2021 by 9:30 a.m. New York time.
Specified Funds for Payment of Subscription Price of Designated Securities:
By wire transfer to a bank account specified by the Company in same day funds.
Value Added Tax:
(a) If the Company is obliged to pay any sum to the Underwriters under this Agreement and any value added tax (“VAT”) is properly charged on such amount, the Company shall pay to the Underwriters an amount equal to such VAT on receipt of a valid VAT invoice;
(b) If the Company is obliged to pay a sum to the Underwriters under this Agreement for any fee, cost, charge or expense properly incurred under or in connection with this Agreement (the “Relevant Cost”) and no VAT is payable by the Company in respect of the Relevant Cost under paragraph (a) above, the Company shall pay to the Underwriters an amount which:
(i) if for VAT purposes the Relevant Cost is consideration for a supply of goods or services made to the Underwriters, is equal to any input VAT incurred by the Underwriters on that supply of goods and services, but only if and to the extent that the Underwriters are unable to recover such input VAT from HM Revenue & Customs (whether by repayment or credit) provided, however, that the Underwriters shall reimburse the Company for any amount paid by the Company in respect of irrecoverable input VAT pursuant to this paragraph (i) if and to the extent such input VAT is subsequently recovered from HM Revenue & Customs (whether by repayment or credit);
(ii) if for VAT purposes the Relevant Cost is a disbursement properly incurred by the Underwriters under or in connection with this Agreement as agent on behalf of the Company, is equal to any VAT paid on the Relevant Cost by the Underwriters provided, however, that the Underwriters shall use best endeavors to procure that the actual supplier of the goods or services which the Underwriters received as agent issues a valid VAT invoice to the Company.
Closing Location:
Linklaters LLP, One Silk Street, London EC2Y 8HQ, United Kingdom.
Name and address of Representative:
Designated Representative: Barclays Capital Inc.
Address for Notices:
Barclays Capital Inc.
745 Seventh Avenue
New York, NY 10019
Attn: Syndicate Registration
Selling Restrictions:
United Kingdom:
Each Underwriter represents, warrants and agrees with the Company that, in connection with the distribution of the Notes, directly or indirectly, it: (1) has only communicated or caused to be communicated, and will only communicate or cause to be communicated, an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA”)) received by it in connection with the issue or sale of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and (2) has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
Prohibition of Sales to United Kingdom Retail Investors:
Each Underwriter represents, warrants and agrees with the Company that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any retail investor in the United Kingdom. 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 of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or |
| (ii) | a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law of the United Kingdom by virtue of the EUWA. |
Prohibition of Sales to EEA Retail Investors:
Each Underwriter represents, warrants and agrees with the Company that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any retail investor in the European Economic Area. 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 in point (10) of Article 4(1) of MiFID II. |
Canada:
Each Underwriter represents, warrants and agrees with the Company, with respect to sales of the Notes in Canada, that, directly or indirectly, it shall sell the Notes only to purchasers purchasing as principal that are both “accredited investors” as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario) and “permitted clients” as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations.
Hong Kong:
Each Underwriter represents, warrants and agrees that:
| (i) | it has not offered or sold and will not offer or sell in Hong Kong, by means of any document, any Notes other than to (a) “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong (the “SFO”) and any rules made under the SFO; or (b) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the meaning of that Ordinance; and |
| (ii) | it has not issued or had in its possession for the purposes of issue, and will not issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to the Notes, which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to Notes which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made under the SFO. |
Japan:
The Notes have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Act No. 25 of 1948, as amended, the “FIEA”) and accordingly, each Underwriter represents and agrees that it has not offered or sold and undertakes that it will not offer or sell any Notes directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan or to others for re-offering or resale, directly or indirectly, in Japan or to any resident of Japan except pursuant to an exemption from the registration requirements of, and otherwise in compliance with the FIEA and other relevant laws and regulations of Japan. As used in this paragraph, “resident of Japan” means any person resident in Japan, including any corporation or other entity organized under the laws of Japan.
Singapore:
Each Underwriter acknowledges that the prospectus supplement and the accompanying Base Prospectus have not been and will not be registered as a prospectus with the Monetary Authority of Singapore. Accordingly, each Underwriter represents, warrants and agrees that it has not offered or sold any Notes or caused the Notes to be made the subject of an invitation for subscription or purchase and will not offer or sell any Notes or cause the Notes to be made the subject of an invitation for subscription or purchase, and has not circulated or distributed, nor will it circulate or distribute, the prospectus supplement and the accompanying Base Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Notes, whether directly or indirectly, to any person in Singapore other than (i) to an institutional investor (as defined in Section 4A of the SFA) pursuant to
Section 274 of the SFA, (ii) to a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where the Notes are subscribed or purchased under Section 275 of the SFA by a relevant person which is:
| (i) | a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or |
| (ii) | a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor, securities or securities-based derivatives contracts (each term as defined in Section 2(1) of the SFA) of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the Notes pursuant to an offer made under Section 275 of the SFA except: |
| 1. | to an institutional investor or to a relevant person or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of the SFA; |
| 2. | where no consideration is or will be given for the transfer; |
| 3. | where the transfer is by operation of law; |
| 4. | as specified in Section 276(7) of the SFA; or |
| 5. | as specified in Regulation 37A of the Securities and Futures (Offers of Investments) (Securities and Securities-based Derivatives Contracts) Regulations 2018. |
Taiwan:
Each Underwriter represents, warrants and agrees with the Company that the Notes have not been, and will not be, registered or filed with, or approved by, the Financial Supervisory Commission of Taiwan, the Republic of China (“Taiwan”) and/or other regulatory authority of Taiwan pursuant to applicable securities laws and regulations and may not be sold, offered or otherwise made available within Taiwan through a public offering or in circumstances which constitute an offer within the meaning of the Taiwan Securities and Exchange Act or relevant laws and regulations that requires a registration or filing with or the approval of the Financial Supervisory Commission of Taiwan and/or other regulatory authority of Taiwan. Each Underwriter further represents, warrants and agrees with the Company that no person or entity in Taiwan is authorized to offer, sell or otherwise make available any Notes or the provision of information relating to the prospectus supplement and the Base Prospectus.
Other Terms and Conditions:
As set forth in the prospectus supplement dated March 3, 2021 relating to the Notes (the “Preliminary Prospectus Supplement”), incorporating the Prospectus dated March 1, 2021 relating to the Notes (the “Base Prospectus”).
SCHEDULE III
Issuer Free Writing Prospectus:
Final Term Sheet, dated March 3, 2021, attached hereto as Exhibit A.
EXHIBIT A
Free Writing Prospectus
Filed pursuant to Rule 433
Registration Statement No. 333-253693
$1,000,000,000 2.667% Fixed Rate Resetting Senior Callable Notes due 2032
Barclays PLC
Pricing Term Sheet
| Issuer: | Barclays PLC (the “Issuer”) | |
| Notes: | $1,000,000,000 2.667% Fixed Rate Resetting Senior Callable Notes due 2032 (the “Notes”) | |
| Expected Issue Ratings:1 | Baa2 (Moody’s) / BBB (S&P) / A (Fitch) | |
| Status: | Senior Debt / Unsecured | |
| Legal Format: | SEC registered | |
| Principal Amount: | $1,000,000,000 | |
| Trade Date: | March 3, 2021 | |
| Settlement Date: | March 10, 2021 (T+5) (the “Issue Date”) | |
| Maturity Date: | March 10, 2032 (the “Maturity Date”) | |
| Coupon: | From (and including) the Issue Date to (but excluding) the Reset Date, the Notes will bear interest at a rate of 2.667% per annum. | |
| From (and including) the Reset Date to (but excluding) the Maturity Date, the applicable per annum interest rate will be equal to the sum, as determined by the Calculation Agent, of the then-prevailing U.S. Treasury Rate, on the Reset Determination Date, plus the Margin. | ||
| Reset Date: | March 10, 2031 | |
| Reset Determination Date: | The second Business Day (as defined below) immediately preceding the Reset Date. | |
| Interest Payment Dates: | Interest will be payable semi-annually in arrear on March 10 and September 10 in each year, commencing on September 10, 2021. | |
| U.S. Treasury Rate and Fallbacks: | “U.S. Treasury Rate” means, with respect to the Reset Period, the rate per annum equal to: (1) the yield, under the heading which represents the average for the week immediately prior to the Reset Determination Date, appearing in the most recently published statistical release designated “H.15,” or any successor publication that is published by the Board of Governors of the Federal Reserve System that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity, under the caption “Treasury constant maturities,” for the maturity of one year; or (2) if such release (or any successor release) is not published during the week immediately prior to the Reset Determination Date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to | |
| 1 | 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. |
| maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the Reset Determination Date.
The U.S. Treasury Rate shall be determined by the Calculation Agent.
If the U.S. Treasury Rate cannot be determined, for whatever reason, as described under (1) or (2) above, “U.S. Treasury Rate” means the rate in percentage per annum as notified by the Calculation Agent to the Issuer equal to the yield on U.S. Treasury securities having a maturity of one year as set forth in the most recently published statistical release designated “H.15” under the caption “Treasury constant maturities” (or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury constant maturities” for the maturity of one year) at 5:00 p.m. (New York City time) on the last available date preceding the Reset Determination Date on which such rate was set forth in such release (or any successor release). | ||
| Day Count: | 30/360, Following, Unadjusted. | |
| Business Day: | 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 in the City of New York, United States. | |
| Preliminary Prospectus Supplement: | Preliminary Prospectus Supplement dated March 3, 2021 (the “Preliminary Prospectus Supplement,” incorporating the Prospectus dated March 1, 2021 relating to the Notes (the “Base Prospectus”)). If there is any discrepancy or contradiction between this Pricing Term Sheet and the Preliminary Prospectus Supplement, this Pricing Term Sheet shall prevail. | |
| U.K. Bail-in Power Acknowledgement: | Yes. See section entitled “Description of Debt Securities—Agreement with Respect to the Exercise of U.K. Bail-in Power” in the Base Prospectus. | |
| Ranking: | The ranking of the Notes is described under “Description of Senior Notes—Ranking” in the Preliminary Prospectus Supplement. | |
| Optional Redemption: | The Issuer may, at its option, redeem the Notes (i) in whole or in part, pursuant to the Make-Whole Redemption at any time on or after September 10, 2021 to (but excluding) March 10, 2031 (the “Par Redemption Date”) and/or (ii) in whole but not in part, on the Par Redemption Date, at an amount equal to 100% of their principal amount together with accrued but unpaid interest, if any, on the principal amount of the Notes to be redeemed to (but excluding) the redemption date, on the terms and subject to the provisions set forth in the Preliminary Prospectus Supplement under “Description of Senior Notes—Optional Redemption.”
For purposes of the Make-Whole Redemption, the Discount Factor is 20 bps. | |
| Tax Redemption: | The Notes are also redeemable as described under “Description of Senior Notes—Tax Redemption” in the Preliminary Prospectus Supplement. | |
| Loss Absorption Disqualification Event Redemption: | The Notes are also redeemable as described under “Description of Senior Notes—Loss Absorption Disqualification Event Redemption” in the Preliminary Prospectus Supplement. | |
| Margin: | 120 bps (the “Margin”) | |
| Benchmark Treasury: | UST 1.125% due February 15, 2031 | |
| Spread to Benchmark: | 120 bps | |
| Reoffer Yield: | 2.667% | |
| Price to Public: | 100.000% | |
| Underwriting Discount: | 0.450% | |
| Net Proceeds: | $995,500,000 | |
| Sole Bookrunner: | Barclays Capital Inc. | |
| Senior Co-Managers: | BNP Paribas Securities Corp., CIBC World Markets Corp., J.P. Morgan Securities LLC, Lloyds Securities Inc., RBC Capital Markets, LLC, Santander Investment Securities Inc., Skandinaviska Enskilda Banken AB (publ), Société Générale | |
| Co-Managers: | Bankinter S.A., Capital One Securities, Inc., Citigroup Global Markets Inc., Mischler Financial Group, Inc., Rabo Securities USA, Inc., Stern Brothers & Co., UBS Securities LLC, U.S. Bancorp Investments, Inc. | |
| Risk Factors: | An investment in the Notes involves risks. See “Risk Factors” section beginning on page S-15 of the Preliminary Prospectus Supplement. | |
| Denominations: | $200,000 and integral multiples of $1,000 in excess thereof. | |
| ISIN/CUSIP: | US06738EBR53 / 06738E BR5 | |
| Legal Entity Identifier (“LEI”) Code: | 213800LBQA1Y9L22JB70 | |
| Settlement: | The Depository Trust Company; Book-entry; Transferable | |
| Documentation: | To be documented under the Issuer’s shelf registration statement on Form F-3 (No. 333-253693) and to be issued pursuant to the Senior Debt Securities Indenture dated January 17, 2018 (as heretofore amended and supplemented), between the Issuer and The Bank of New York Mellon, London Branch, as trustee (the “Trustee”), as supplemented by the Tenth Supplemental Indenture, to be entered into on or about the Issue Date, between the Issuer, the Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar. | |
| Listing: | We will apply to list the Notes on the New York Stock Exchange. | |
| Governing Law: | New York law, except for the waiver of set-off provisions which will be governed by English law. | |
| Definitions: | Unless otherwise defined herein, all capitalized terms have the meaning set forth in the Preliminary Prospectus Supplement. | |
The Issuer has filed a registration statement (including the Base Prospectus) and the Preliminary Prospectus Supplement) with the U.S. Securities and Exchange Commission (“SEC”) for this offering. Before you invest, you should read the Base Prospectus and the Preliminary Prospectus Supplement for this offering in that registration statement, and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by searching the SEC online database (EDGAR) at www.sec.gov. Alternatively, you may obtain a copy of the Base Prospectus and the Preliminary Prospectus Supplement from Barclays Capital Inc. by calling 1-888-603-5847.
It is expected that delivery of the Notes will be made for value on or about March 10, 2021, which will be the fifth (5th) business day in the United States following the date of pricing of the Notes. Under Rule 15c6-1 under the Securities Exchange Act of 1934, purchases or sales of Notes in the secondary market generally are required to settle within two (2) business days (T+2), unless the parties to any such transaction expressly agree otherwise. Accordingly, purchasers of the Notes who wish to trade the Notes on the date of the prospectus supplement or the next two (2) succeeding business days, will be required, because the Notes initially will settle within five (5) business days (T+5) in the United States, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to trade on the date of the prospectus supplement or the next two (2) succeeding business days should consult their own legal advisers.
No EEA PRIIPs key information document (KID) has been prepared as the Notes are not available to retail in the EEA.
No UK PRIIPs KID has been prepared as the Notes are not available to retail in the United Kingdom.
This communication is being distributed to, and is directed only at, persons in the United Kingdom in circumstances where section 21(1) of the Financial Services and Markets Act 2000, as amended, does not apply (such persons being referred to as “relevant persons”). Any person who is not a relevant person should not act or rely on this communication or any of its contents. Any investment activity (including, but not limited to, any invitation, offer or agreement to subscribe, purchase or otherwise acquire securities) to which this communication relates will only be available to, and will only be engaged with, relevant persons who fall within the manufacturer target market described above.
Singapore Securities and Futures Act Product Classification—Solely for the purposes of its obligations pursuant to sections 309B(1)(a) and 309B(1)(c) of the Securities and Futures Act (Chapter 289 of Singapore) (the “SFA”), the Issuer has determined, and hereby notifies all relevant persons (as defined in Section 309A of the SFA) that the Securities are “prescribed capital markets products” (as defined in the Securities and Futures (Capital Markets Products) Regulations 2018).
To the extent any underwriter that is not a U.S. registered broker-dealer intends to effect any offers or sales of any Notes in the United States, it will do so through one or more U.S. registered broker-dealers in accordance with the applicable U.S. securities laws and regulations. Swedbank AB (publ) is not a U.S. registered broker-dealer, and it will not effect any offers or sales of any Notes in the United States.
Exhibit 4.4
BARCLAYS PLC,
Issuer,
THE BANK OF NEW YORK MELLON, LONDON BRANCH,
as Trustee
and
THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH
as Senior Debt Security Registrar
TENTH SUPPLEMENTAL INDENTURE
Dated as of March 10, 2021
To the Senior Debt Securities Indenture, dated as of January 17, 2018,
Between Barclays PLC
and
The Bank of New York Mellon, London Branch, as Trustee
$1,000,000,000 Principal Amount of 2.667% Fixed Rate Resetting Senior Callable Notes due 2032
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE I |
| |||||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | ||||||
| SECTION 1.01 | Definitions |
1 | ||||
| SECTION 1.02 | Effect of Headings |
4 | ||||
| SECTION 1.03 | Separability Clause |
4 | ||||
| SECTION 1.04 | Benefits of Instrument |
4 | ||||
| SECTION 1.05 | Relation to Base Indenture |
4 | ||||
| SECTION 1.06 | Construction and Interpretation |
5 | ||||
| ARTICLE II |
| |||||
| 2.667% FIXED RATE RESETTING SENIOR CALLABLE NOTES DUE 2032 |
| |||||
| SECTION 2.01 | Creation of Series; Establishment of Form |
5 | ||||
| SECTION 2.02 | Interest |
6 | ||||
| SECTION 2.03 | Payment of Principal, Interest and Other Amounts |
6 | ||||
| SECTION 2.04 | Optional Redemption |
7 | ||||
| SECTION 2.05 | Loss Absorption Disqualification Event Redemption |
9 | ||||
| SECTION 2.06 | Trustee’s Duties |
| ||||
| SECTION 2.07 | Notice of Redemption |
9 | ||||
| SECTION 2.08 | Acknowledgement with respect to Treatment of EEA BRRD |
|||||
| Liabilities |
11 | |||||
| SECTION 2.09 | Acknowledgement with Respect to Treatment of BRRD Liabilities |
11 | ||||
| ARTICLE III |
| |||||
| MISCELLANEOUS PROVISIONS |
| |||||
| SECTION 3.01 | Effectiveness |
11 | ||||
| SECTION 3.02 | Original Issue |
11 | ||||
| SECTION 3.03 | Ratification and Integral Part |
11 | ||||
| SECTION 3.04 | Priority |
11 | ||||
| SECTION 3.05 | Not Responsible for Recitals or Issuance of Securities |
11 | ||||
| SECTION 3.06 | Successors and Assigns |
11 | ||||
| SECTION 3.07 | Counterparts |
11 | ||||
| SECTION 3.08 | Governing Law |
12 | ||||
| ANNEX I – Interest Terms of the Securities | I-1 | |||||
| EXHIBIT A – Form of Global Note | A-1 | |||||
-i-
TENTH SUPPLEMENTAL INDENTURE, dated as of March 10, 2021 (the “Tenth Supplemental Indenture”), among BARCLAYS PLC, a public limited company registered in England and Wales (herein called the “Company”), having its registered office at 1 Churchill Place, London E14 5HP, United Kingdom, THE BANK OF NEW YORK MELLON, LONDON BRANCH, a New York banking corporation, as Trustee and Paying Agent (herein called the “Trustee”), having a Corporate Trust Office at One Canada Square, London E14 5AL, United Kingdom, and THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH, as Senior Debt Security Registrar, having an office at 2-4 Rue Eugene Ruppert, Vertigo Building – Polaris, Luxembourg, 2453, Luxembourg, to the SENIOR DEBT SECURITIES INDENTURE, dated as of January 17, 2018, between the Company and the Trustee (as heretofore amended and supplemented, the “Base Indenture” and, together with this Tenth Supplemental Indenture, the “Indenture”).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee are parties to the Base Indenture, which provides for the issuance by the Company from time to time of its Senior Debt Securities in one or more series;
WHEREAS, Section 9.01 of the Base Indenture permits supplements thereto without the consent of Holders of Senior Debt Securities to establish the form or terms of Senior Debt Securities of any series as permitted by Sections 2.01 and 3.01 of the Base Indenture;
WHEREAS, as contemplated by Section 3.01 of the Base Indenture, the Company intends to issue an additional series of Senior Debt Securities, to be known as the Company’s “2.667% Fixed Rate Resetting Senior Callable Notes due 2032” (the “Securities”) under the Indenture; and
WHEREAS, the Company has taken all necessary corporate action to authorize the execution and delivery of this Tenth Supplemental Indenture;
NOW, THEREFORE, THIS TENTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the Trustee and the Senior Debt Security Registrar mutually agree as follows with regard to the Securities:
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 Tenth 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 Tenth Supplemental Indenture have the following respective meanings with respect to the Securities only:
1
“Bail-in Legislation” has the meaning set forth in Section 2.07 hereof.
“Base Indenture” has the meaning set forth in the first paragraph of this Tenth Supplemental Indenture.
“BRRD” has the meaning set forth in Section 2.07 hereof.
“BRRD Party” has the meaning set forth in Section 2.07 hereof.
“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 in the City of New York, United States.
“Capital Regulations” means, at any time, the laws, regulations, requirements, standards, guidelines and policies relating to capital adequacy and/or minimum requirement for own funds and eligible liabilities and/or loss absorbing capacity for credit institutions of either (i) the PRA and/or (ii) any other national or European authority, in each case then in effect in the United Kingdom (or in such other jurisdiction in which the Company may be organized or domiciled) and applicable to the Group including, U.K. CRD.
“Company” has the meaning set forth in the first paragraph of this Tenth Supplemental Indenture, and includes any successor entity.
“Determination Agent” has the meaning set forth in Section 2.04 hereof.
“DTC” means The Depository Trust Company, or any successor clearing system.
“EEA Bail-in Power” has the meaning set forth in Section 2.07 hereof.
“EEA BRRD Liability” has the meaning set forth in Section 2.07 hereof.
“Tenth Supplemental Indenture” has the meaning set forth in the first paragraph of this Tenth Supplemental Indenture.
“EU Bail-in Legislation Schedule” has the meaning set forth in Section 2.07 hereof.
“EU CRD” means: (i) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investments firms, as amended before IP completion day; and (ii) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, as amended before IP completion day.
“Group” means the Company (or any successor entity) and its consolidated subsidiaries.
“Indenture” has the meaning set forth in the first paragraph of this Tenth Supplemental Indenture.
2
“Interest Payment Date” has the meaning set forth in Annex I hereto.
“IP completion day” has the meaning given in the U.K. European Union (Withdrawal Agreement) Act 2020.
“Issue Date” has the meaning set forth in Section 2.01(f) hereof.
“Loss Absorption Disqualification Event” means the whole or any part of the principal amount of the Securities Outstanding at any time being excluded from or ceasing to count towards the Company’s and/or the Group’s own funds and eligible liabilities and/or loss absorbing capacity, in each case for the purposes of, and in accordance with, the relevant Capital Regulations, provided that a Loss Absorption Disqualification Event shall not occur if such whole or part of the principal amount of the Securities Outstanding is excluded from, or ceases to count towards, such own funds and eligible liabilities and/or loss absorbing capacity due to the remaining maturity of the Securities being less than the period prescribed by the relevant Capital Regulations.
“Loss Absorption Regulations Event” means that (i) any Capital Regulations become effective with respect to the Company and/or the Group or (ii) there is an amendment to, or change in, any Capital Regulation, or any change in the official application of any Capital Regulation, which becomes effective with respect to the Company and/or the Group.
“Make-Whole Redemption” has the meaning set forth in Section 2.04 hereof.
“Optional Redemption Comparable Treasury Issue” has the meaning set forth in Section 2.04 hereof.
“Optional Redemption Comparable Treasury Price” has the meaning set forth in Section 2.04 hereof.
“Optional Redemption Reference Treasury Dealer” has the meaning set forth in Section 2.04 hereof.
“Optional Redemption Reference Treasury Dealer Quotations” has the meaning set forth in Section 2.04 hereof.
“Optional Redemption Treasury Rate” has the meaning set forth in Section 2.04 hereof.
“Par Redemption” has the meaning set forth in Section 2.04 hereof.
“Par Redemption Date” has the meaning set forth in Annex I hereto.
“Regular Record Date” means the close of business on the Business Day immediately preceding each Interest Payment Date (or, if the Securities are held in definitive form, the close of business on the 15th Business Day preceding each applicable Interest Payment Date).
“Relevant EEA Resolution Authority” has the meaning set forth in Section 2.07 hereof.
3
“Securities” has the meaning set forth in the Recitals to this Tenth Supplemental Indenture.
“Stated Maturity” has the meaning set forth in Section 2.01(g) hereof.
“Trustee” has the meaning set forth in the first paragraph of this Tenth Supplemental Indenture, and includes any successor entity.
“U.K. CRD” means the legislative package consisting of:
(i) the U.K. CRD Regulation;
(ii) the law of the United Kingdom or any part of it (as amended or replaced in accordance with domestic law from time to time), which immediately before IP completion day implemented Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and its implementing measures, such Directive as amended before IP completion day; and
(iii) direct EU legislation (as defined in the Withdrawal Act), which immediately before IP completion day implemented EU CRD as it forms part of domestic law of the United Kingdom by virtue of the Withdrawal Act and as the same may be amended or replaced in accordance with domestic law from time to time.
“U.K. CRD Regulation” means Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investments firms, as amended before IP completion day, as it forms part of domestic law of the United Kingdom by virtue of the Withdrawal Act and as the same may be further amended or replaced in accordance with domestic law from time to time.
“Withdrawal Act” means the United Kingdom European Union (Withdrawal) Act 2018.
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 Tenth 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 Tenth 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 Tenth Supplemental Indenture constitutes an integral part of the Indenture. Notwithstanding any other provisions of this Tenth Supplemental Indenture, all provisions of this Tenth Supplemental Indenture are expressly and solely for the benefit of the Holders of the Securities and the Trustee and any such provisions shall not be deemed to apply to any other Senior Debt 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.
4
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 Tenth Supplemental Indenture, refer to this Tenth Supplemental Indenture as a whole and not to any particular provision of this Tenth Supplemental Indenture;
(b) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;
(c) the terms “U.S. dollars,” “US$” and “$” refer to the lawful currency for the time being of the United States;
(d) references herein to a specific Section, Article or Exhibit refer to Sections or Articles of, or an Exhibit to, this Tenth Supplemental Indenture;
(e) wherever the words “include,” “includes” or “including” are used in this Tenth Supplemental Indenture, they shall be deemed to be followed by the words “without limitation;”
(f) references to a Person are also to its successors and permitted assigns; and
(g) the use of “or” is not intended to be exclusive unless expressly indicated otherwise.
ARTICLE II
2.667% FIXED RATE RESETTING SENIOR CALLABLE NOTES DUE 2032
SECTION 2.01 Creation of Series; Establishment of Form.
(a) There is hereby established an additional series of Senior Debt Securities under the Base Indenture entitled the “2.667% Fixed Rate Resetting Senior Callable Notes due 2032.”
(b) The Securities shall be issued initially in the form of one or more registered Global Securities that shall be deposited with DTC on the Issue Date. The Global Securities shall be registered in the name of Cede & Co. and executed and issued in substantially the form attached hereto as Exhibit A.
(c) The Company shall issue the Securities in an aggregate principal amount of $1,000,000,000. The Company may from time to time, without the consent of the Holders of the Securities, issue additional securities of such series having the same ranking and same interest rate, Stated Maturity, redemption terms and other terms as the Securities described in this Tenth Supplemental Indenture, except for the price to the public and Issue Date. Any such additional securities subsequently issued shall rank equally and ratably with the Securities in all respects, so that such further securities shall be consolidated and form a single series with the applicable series of the Securities.
5
(d) Any proposed transfer of an interest in Securities held in the form of a Global Security shall be effected through the book-entry system maintained by DTC.
(e) The Securities shall not have a sinking fund.
(f) The Securities shall be issued on March 10, 2021 (the “Issue Date”).
(g) The stated maturity of the principal of the Securities shall be March 10, 2032 (the “Stated Maturity”).
(h) The Securities shall be redeemable prior to their Stated Maturity in accordance with Section 2.04 or Section 2.05 hereof.
(i) The Securities shall be issued in minimum denominations of $200,000 in principal amount and integral multiples of $1,000 in excess thereof.
(j) Section 11.09 of the Base Indenture shall apply to the Securities.
(k) The Securities shall constitute the Company’s direct, unconditional, unsecured and unsubordinated obligations and shall at all times rank pari passu without any preference among themselves. In the event of a winding-up or administration of the Company, the Securities shall rank pari passu with all other outstanding unsecured and unsubordinated obligations of the Company, present and future, except such obligations as are preferred by operation of law.
SECTION 2.02 Interest.
(a) The interest rate on the Securities shall be, or shall be determined, as set forth in Annex I hereto.
(b) The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name the relevant Security (or any Predecessor Senior Debt Security) is registered at the close of business on the Regular Record Date for such interest.
SECTION 2.03 Payment of Principal, Interest and Other Amounts.
(a) Payments of principal of and interest on the Securities shall be made 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 and such payments on Securities represented by a Global Security shall be made through one or more Paying Agents appointed under the Base Indenture to DTC or its nominee, as the Holder or Holders of the Global Security. Initially, the Paying Agent for the Securities shall be The Bank of New York Mellon, London Branch, One Canada Square, London E14 5AL, United Kingdom and the Place of Payment in respect of the Securities shall be the Corporate Trust Office of the Trustee, which as of the date hereof is hereby designated for purposes of the Securities initially as the office or agency of the Trustee located at said address. Initially, the Senior Debt Security Registrar for the Securities shall be The Bank of New York Mellon SA/NV, Luxembourg Branch, 2-4 Rue Eugene Ruppert, Vertigo Building – Polaris, Luxembourg, 2453, Luxembourg (which
6
location shall also be a Place of Payment for purposes of Section 3.05(a) of the Base Indenture). The Company at any time and from time to time may change the Paying Agent or, subject to Section 9.01 of the Base Indenture, the Place of Payment, and the Senior Debt Security Registrar without prior notice to the Holders of the Securities, and in such an event the Company may act as Paying Agent or Senior Debt Security Registrar. Payments of principal of and interest on the Securities represented by a Global Security shall be made by wire transfer of immediately available funds; provided, however, that in the case of payments of principal, such Global Security is first surrendered to the Paying Agent. If a date of redemption or repayment or the Stated Maturity is not a Business Day, the Company may pay interest and principal and/or any amount payable upon redemption or repayment of the Securities on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the date of redemption or repayment or such Stated Maturity.
SECTION 2.04 Optional Redemption. Subject to the notice period and provisions set forth in Sections 11.02 and 11.04 of the Base Indenture, and to the conditions set forth in Section 11.10 of the Base Indenture, the Company may redeem, at its option (A) the Securities at any time outstanding, in whole or in part, at any time on or after September 10, 2021 (six months following the Issue Date and, if any additional Securities are issued after the Issue Date, except for the period of six months beginning on the issue date for any such additional Securities) to (but excluding) the Par Redemption Date, at an amount equal to the higher of (i) 100% of the principal amount of the Securities to be redeemed and (ii) as determined by the Determination Agent, the sum of the present values of the principal (discounted from the Par Redemption Date) and remaining payments of interest to be made on any scheduled Interest Payment Date to the Par Redemption Date for the Securities to be redeemed (not including accrued but unpaid interest, if any, on the principal amount of the Securities) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Optional Redemption Treasury Rate plus 20 basis points together with, in either case of (i) or (ii) above, accrued but unpaid interest, if any, on the principal amount of the Securities to be redeemed to (but excluding) the Redemption Date (the “Make-Whole Redemption”) and/or (B) the Securities then outstanding, in whole but not in part, on the Par Redemption Date, at an amount equal to 100% of their principal amount together with accrued but unpaid interest, if any, on the principal amount of the Securities to be redeemed to (but excluding) the Redemption Date (the “Par Redemption”).
“Optional Redemption Treasury Rate” means, with respect to the Redemption Date, the rate per annum equal to: (1) the yield, under the heading which represents the average for the week immediately prior to the calculation date, appearing in the most recently published statistical release designated “H.15,” or any successor publication that is published by the Board of Governors of the Federal Reserve System that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity, under the caption “Treasury constant maturities,” for the maturity most closely corresponding to the Par Redemption Date (if no maturity is within three months before or after the Par Redemption Date, yields for the two published maturities most closely corresponding to the Optional Redemption Comparable Treasury Issue shall be determined and the Optional Redemption Treasury Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding to the nearest month); or (2) if such release (or any successor release) is not published during the week immediately prior to the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Optional Redemption Comparable Treasury Issue, calculated using a price for the Optional Redemption
7
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Optional Redemption Comparable Treasury Price for such Redemption Date; provided that, if the period from the Redemption Date to the Par Redemption Date is less than one year, the weekly average yield on actually traded U.S. Treasury securities adjusted to a constant maturity of one year will be used.
The Optional Redemption Treasury Rate shall be calculated by the Determination Agent on the third Business Day preceding the Redemption Date.
In determining the Optional Redemption Treasury Rate, the below terms will have the following meaning:
“Optional Redemption Comparable Treasury Issue” means, with respect to the Redemption Date, the U.S. Treasury security selected by the Determination Agent as having an actual or interpolated maturity comparable with the remaining term to the Par Redemption Date that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities denominated in U.S. dollars and of comparable maturity to the remaining term to the Par Redemption Date.
“Optional Redemption Comparable Treasury Price” means, with respect to the Redemption Date, (i) the arithmetic average of the Optional Redemption Reference Treasury Dealer Quotations for such Redemption Date (calculated on the third Business Day preceding such Redemption Date), after excluding the highest and lowest such Optional Redemption Reference Treasury Dealer Quotations, or (ii) if fewer than five such Optional Redemption Reference Treasury Dealer Quotations are received, the arithmetic average of all such quotations, or (iii) if fewer than two such Optional Redemption Reference Treasury Dealer Quotations are received, then such Optional Redemption Reference Treasury Dealer Quotation.
“Determination Agent” means an investment bank or financial institution of international standing selected by the Company and which may be an affiliate of the Company.
“Optional Redemption Reference Treasury Dealer” means, with respect to the Redemption Date, each of up to five banks selected by the Company (following, where practicable, consultation with the Determination Agent, if applicable), or the affiliates of such banks, which are (i) primary U.S. government securities dealers, and their respective successors, or (ii) market makers in pricing corporate bond issues.
“Optional Redemption Reference Treasury Dealer Quotations” means, with respect to each Optional Redemption Reference Treasury Dealer and the Redemption Date, the arithmetic average, as determined by the Determination Agent, of the bid and offered prices (as quoted to the Determination Agent by such Optional Redemption Reference Treasury Dealer) for the applicable Optional Redemption Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) at 11:00 a.m., New York time, on the third Business Day preceding such Redemption Date.
Unless the Company defaults on payment of the Redemption Price, interest will cease to accrue on the Redemption Date on the Securities or portions thereof called for redemption. The Trustee has no responsibility for any calculation or determination in respect of the establishment of the Make-Whole Redemption price and shall be entitled to receive and rely conclusively upon an Officer’s Certificate executed in accordance with the Base Indenture that states the Make-Whole Redemption price.
8
SECTION 2.05 Loss Absorption Disqualification Event Redemption. If a Loss Absorption Regulations Event occurs on or after the Issue Date that does, or would be likely to (in the opinion of the Company, the PRA or the Relevant U.K. Resolution Authority), result in a Loss Absorption Disqualification Event with respect to the Securities, the Company may, at the Company’s option, at any time, redeem the Securities, in whole but not in part, at a Redemption Price equal to 100% of the principal amount of the Securities being redeemed together with accrued but unpaid interest, if any, on the principal amount of the Securities to be redeemed to (but excluding) the Redemption Date. For the avoidance of doubt, except as otherwise set forth in this Tenth Supplemental Indenture, Article 11 of the Base Indenture shall apply to any redemption of Securities pursuant to this Section 2.05.
SECTION 2.06 Notice of Redemption.
(a) Before the Company may redeem the Securities pursuant to Section 2.04 or Section 2.05 hereof or pursuant to Section 11.09 of the Base Indenture, the Company shall deliver via DTC or the relevant clearing system(s) (or, if the Securities are definitive Securities, to the Holders at their addresses shown on the register for the Securities) prior notice of not less than fifteen (15) days, nor more than sixty (60) days, to the Holders of the Securities. The Company shall deliver written notice of such redemption of the Securities to the Trustee at least five (5) Business Days prior to the date on which the relevant notice of redemption is sent to Holders (unless a shorter notice period shall be satisfactory to the Trustee). Such notice shall specify the Company’s election to redeem the Securities and the date fixed for such redemption and shall be irrevocable except in the limited circumstances described in paragraphs (b) below.
(b) If the Company has delivered a notice of redemption pursuant to paragraph (a) of this Section 2.06, but prior to the payment of the redemption amount with respect to such redemption the Relevant U.K. Resolution Authority exercises its U.K. Bail-in Power with respect to the Securities, such redemption notice shall be automatically rescinded and shall be of no force and effect, and no payment in respect of the redemption amount shall be due and payable.
(c) If any event specified in paragraph (b) above occurs, the Company shall promptly deliver notice to the Holders of the Securities via DTC or the relevant clearing system(s) (or, if the Securities are definitive Securities, to the Holders at their addresses shown on the shown on the register for the Securities) and to the Trustee directly, specifying the occurrence of the relevant event.
SECTION 2.07 Acknowledgement with respect to Treatment of EEA BRRD Liabilities. Notwithstanding and to the exclusion of any other term of the Indenture, this Tenth Supplemental Indenture or any other agreements, arrangements, or understanding between the BRRD Party, on the one hand, and the Company, on the other hand, the Company acknowledges and accepts that an EEA BRRD Liability arising under the Indenture and this Tenth Supplemental Indenture may be subject to the exercise of EEA Bail-in Powers by the Relevant EEA Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(a) the effect of the exercise of EEA Bail-in Powers by the Relevant EEA Resolution Authority in relation to any EEA BRRD Liability that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the EEA BRRD Liability or outstanding amounts due thereon;
9
(ii) the conversion of all, or a portion, of the EEA BRRD Liability into shares, other securities or other obligations of the BRRD Party or another person, and the issue to or conferral on the Company of such shares, securities or obligations;
(iii) the cancellation of the EEA BRRD Liability; or
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due including by suspending payment for a temporary period.
(b) the variation of the terms of the Indenture or this Tenth Supplemental Indenture, as deemed necessary by the Relevant EEA Resolution Authority, to give effect to the exercise of EEA Bail-in Powers by the Relevant EEA Resolution Authority in respect of the BRRD Party.
For these purposes:
“Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
“BRRD” means EU Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms of May 15, 2014, as amended or replaced from time to time (including as amended by Directive (EU) 2019/879 of the European Parliament and of the Council of May 20, 2019).
“BRRD Party” means The Bank of New York Mellon SA/NV, Luxembourg Branch, solely and exclusively in its role as Senior Debt Security Registrar under the Indenture and this Tenth Supplemental Indenture. For the avoidance of doubt, The Bank of New York Mellon, London Branch, as Trustee and Paying Agent and in any other capacity under the Indenture or this Tenth Supplemental Indenture is not a BRRD Party under the Indenture or this Tenth Supplemental Indenture.
“EEA Bail-in Power” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
“EEA BRRD Liability” means a liability of the BRRD Party to the Company under the Indenture or this Tenth Supplemental Indenture, if any, in respect of which the EEA Bail-in Power may be exercised.
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com.
10
“Relevant EEA Resolution Authority” means the resolution authority with the ability to exercise any EEA Bail-in Powers in relation to the BRRD Party.
SECTION 2.08 Acknowledgement with Respect to Treatment of BRRD Liabilities. Any references to the “Trustee” in Article 12.02 of the Base Indenture shall be deemed to refer to the Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.01 Effectiveness. This Tenth Supplemental Indenture shall become effective upon its execution and delivery.
SECTION 3.02 Original Issue. The Securities may, upon execution of this Tenth Supplemental Indenture, be executed by the Company and delivered by the Company to the Trustee for authentication, and the Trustee shall, upon a Company Order, authenticate and deliver such Securities as in such Company Order provided.
SECTION 3.03 Ratification and Integral Part. The Base Indenture as supplemented by this Tenth Supplemental Indenture, is in all respects ratified and confirmed, including without limitation all the rights, immunities and indemnities of the Trustee, and this Tenth Supplemental Indenture shall be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided.
SECTION 3.04 Priority. This Tenth Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided. The provisions of this Tenth 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 3.05 Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any authenticating agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Tenth Supplemental Indenture or of the Securities, except that the Trustee represents and warrants that it has duly authorized, executed and delivered this Tenth Supplemental Indenture. Neither the Trustee nor any authenticating agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof.
SECTION 3.06 Successors and Assigns. All covenants and agreements in the Base Indenture, as supplemented and amended by this Tenth Supplemental Indenture, by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 3.07 Counterparts. This Tenth Supplemental Indenture may be executed manually, by facsimile or by electronic 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.
11
SECTION 3.08 Governing Law. This Tenth Supplemental Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, except for the waiver of set-off provisions set forth in Section 5.01(h) of the Base Indenture, which shall be governed by and construed in accordance with English law.
{Signature Page Follows}
12
IN WITNESS WHEREOF, the parties hereto have caused this Tenth Supplemental Indenture to be duly executed as of the day and year first above written.
| BARCLAYS PLC | ||
| By: | /s/ Miray Muminoglu | |
| Name: | Miray Muminoglu | |
| Title: | Managing Director | |
| THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS TRUSTEE AND PAYING AGENT | ||
| By: | /s/ Tom Vanson | |
| Name: | Tom Vanson | |
| Title: | Authorized Signatory | |
| THE BANK OF NEW YORK MELLON SA/NV, LUXEMBOURG BRANCH, AS SENIOR DEBT SECURITY REGISTRAR | ||
| By: | /s/ Tom Vanson | |
| Name: | Tom Vanson | |
| Title: | Authorized Signatory | |
[Signature Page to Tenth Supplemental Indenture]
ANNEX I
Interest Terms of the Securities
Interest Terms of the Securities
| Interest Rate: | From (and including) the Issue Date to (but excluding) the Reset Date, the Securities will bear interest at a rate of 2.667% per annum (the “Initial Interest Rate”). From (and including) the Reset Date to (but excluding) the Maturity Date (the “Reset Period”), the applicable per annum interest rate (the “Subsequent Interest Rate”) will be equal to the sum, as determined by the Calculation Agent, of the then-prevailing U.S. Treasury Rate (such term subject to the provisions described below) on the Reset Determination Date, plus 1.200% (the “Margin”). | |
| Interest Payment Dates: | Semi-annually in arrear on March 10 and September 10 in each year, commencing on September 10, 2021 (each, an “Interest Payment Date”). If any scheduled Interest Payment Date would fall on a day that is not a Business Day, the Company will pay interest on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the scheduled Interest Payment Date. | |
| Reset Date: | March 10, 2031 (the “Reset Date”). | |
| Reset Determination Date: | The second Business Day immediately preceding the Reset Date (the “Reset Determination Date”). | |
| Day Count: | 30/360, Following, Unadjusted. | |
| Calculation Agent: | The Bank of New York Mellon, London Branch, or its successor appointed by the Company. | |
| Par Redemption Date: | March 10, 2031. | |
| Calculation of U.S. Treasury Rate: | The Calculation Agent will determine the Subsequent Interest Rate for the Securities by reference to the then-prevailing U.S. Treasury Rate, on the Reset Determination Date. Promptly upon such determination, the Calculation Agent will notify the Company and the Trustee (if the Calculation Agent is not the Trustee) of the Subsequent Interest Rate. All determinations and any calculations made by the Calculation Agent for the purposes of calculating the Subsequent Interest Rate (or component thereof) shall be conclusive and binding on the holders of the Securities, the Company and the Trustee, absent manifest error. The Calculation Agent shall not be responsible to the Company, holders of the Securities or any third party for any failure of any Reference Treasury Dealer to provide quotations as requested of them or as a result of the Calculation | |
| Agent having acted on any quotation or other information given by any Reference Treasury Dealer which subsequently may be found to be incorrect or inaccurate in any way.
“U.S. Treasury Rate” means, with respect to the Reset Period, the rate per annum equal to: (1) the yield, under the heading which represents the average for the week immediately prior to the Reset Determination Date, appearing in the most recently published statistical release designated “H.15,” or any successor publication that is published by the Board of Governors of the Federal Reserve System that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity, under the caption “Treasury constant maturities,” for the maturity of one year; or (2) if such release (or any successor release) is not published during the week immediately prior to the Reset Determination Date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the Reset Determination Date.
If the U.S. Treasury Rate cannot be determined, for whatever reason, as described under (1) or (2) above, “U.S. Treasury Rate” means the rate in percentage per annum as notified by the Calculation Agent to the Company equal to the yield on U.S. Treasury securities having a maturity of one year as set forth in the most recently published statistical release designated “H.15” under the caption “Treasury constant maturities” (or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury constant maturities” for the maturity of one year) at 5:00 p.m. (New York City time) on the last available date preceding the Reset Determination Date on which such rate was set forth in such release (or any successor release).
“Comparable Treasury Issue” means, with respect to the Reset Period, the U.S. Treasury security or securities selected by the Company with a maturity date on or about the last day of the Reset Period and that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities denominated in U.S. dollars and having a maturity of one year.
“Comparable Treasury Price” means, with respect to the Reset Determination Date, (i) the arithmetic average of the Reference Treasury Dealer Quotations for the Reset Determination Date, after excluding the highest and lowest such Reference Treasury |
| Dealer Quotations, (ii) if fewer than five such Reference Treasury Dealer Quotations are received, the arithmetic average of all such quotations, or (iii) if fewer than two such Reference Treasury Dealer Quotations are received, then such Reference Treasury Dealer Quotation.
“Reference Treasury Dealer” means, with respect to the Reset Determination Date, each of up to five banks selected by the Company, or the affiliates of such banks, which are (i) primary U.S. Treasury securities dealers, and their respective successors, or (ii) market makers in pricing corporate bond issues denominated in U.S dollars.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and the Reset Determination Date, the arithmetic average, as determined by the Calculation Agent, of the bid and offered prices (such prices being obtained by the Company and furnished to the Calculation Agent) for the applicable Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, at 11:00 a.m. (New York City time) on the Reset Determination Date. |
EXHIBIT A
Form of Global Security
THIS SECURITY IS A GLOBAL REGISTERED 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 SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (OR ANY SUCCESSOR CLEARING SYSTEM) (“DTC”), TO BARCLAYS PLC, OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
This Security is one of a duly authorized issue of securities of the Company (as defined below) (herein called the “Securities” and each, a “Security”) issued and to be issued in one or more series under and governed by the Senior Debt Securities Indenture, dated as of January 17, 2018 (as heretofore amended and supplemented, the “Base Indenture”), as amended and supplemented by the Tenth Supplemental Indenture, dated as of March 10, 2021 (the “Tenth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
Notwithstanding and to the exclusion of any other term of the Securities or any other agreements, arrangements, or understandings between the Company and any Holder or Beneficial Owner of the Securities, by acquiring the Securities, each Holder and Beneficial Owner of the Securities acknowledges, accepts, agrees to be bound by, and consents to, the exercise of any U.K. Bail-in Power by the Relevant U.K. Resolution Authority (as those terms are defined in the Base Indenture) and the provisions set forth in Section 12.01 of the Base Indenture.
In accordance with Article 13 of the Base Indenture, each Holder and Beneficial Owner of the Securities that acquires the Securities in the secondary market shall be deemed to acknowledge, agree to be bound by, and consent to, the same provisions set forth in the Securities and the Indenture to the same extent as the Holders and Beneficial Owners of the Securities that acquire the Securities upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by, and consent to, the terms of the Securities, including in relation to the provisions contained in Section 5.01(h) and Section 12.01 of the Base Indenture.
2.667% Fixed Rate Resetting Senior Callable Notes due 2032
| No. 00[●] | $[●] |
CUSIP NO. 06738E BR5
ISIN NO. US06738EBR53
COMMON CODE NO. 231338055
BARCLAYS PLC, a company duly incorporated and existing under the laws of England and Wales (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of US$[●] ([●]) on March 10, 2032 (the “Maturity Date”), except as otherwise provided herein, and to pay interest thereon, in accordance with the terms hereof. Interest shall accrue on this Security from March 10, 2021 or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, until the principal hereof is paid or made available for payment. Interest shall be paid semi-annually in arrear on March 10 and September 10 of each year (each, an “Interest Payment Date”). From (and including) March 10, 2021 to (but excluding) March 10, 2031 (the “Reset Date”), the Securities will bear interest at a rate of 2.667% per annum. From (and including) the Reset Date to (but excluding) the Maturity Date, the applicable per annum interest rate (the “Subsequent Interest Rate”) will be equal to the sum, as determined by the Calculation Agent, of the then-prevailing U.S. Treasury Rate (such term subject to the provisions of Annex I to the Tenth Supplemental Indenture) on the second Business Day immediately preceding the Reset Date, plus 1.200%.
Subject to the limitations specified on the reverse of this Security, interest on the Securities shall be computed and payable in arrear and on the basis of a 360-day year of twelve 30-day months.
The Calculation Agent, initially the Bank of New York Mellon, London Branch (the “Calculation Agent”), will determine the Subsequent Interest Rate in any circumstance where the Calculation Agent is so required under the terms of the Securities and the Indenture, in accordance with the provisions set forth in Annex I to the Tenth Supplemental Indenture.
All calculations made by the Calculation Agent for the purposes of calculating the interest rate on the Securities shall be conclusive and binding on the Holders of the Securities, the Company and the Trustee, absent manifest error.
If any scheduled Interest Payment Date is not a Business Day, the Interest Payment Date shall be postponed to the next succeeding Business Day (as defined below), but interest on that payment will not accrue during the period from and after the scheduled Interest Payment Date. 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 or repayment of the Securities will be made on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after such Maturity Date or date of redemption or repayment. If the Securities are redeemed, unless the Company defaults on payment of the Redemption Price, interest will cease to accrue on the Redemption Date on the Securities called for redemption. A “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 in the City of New York, United States.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name the relevant Security (or any Predecessor Senior Debt Security) is registered at the close of business on the Regular Record Date for such interest.
No repayment of the principal amount of the Securities or payment of interest on the Securities shall become due and payable after the exercise of any U.K. Bail-in Power by the Relevant U.K. Resolution Authority, unless such repayment or payment would be permitted to be made by the Company under the laws and regulations of the United Kingdom and the European Union applicable to the Company.
Payments of principal of and interest, if any, on the Securities shall be made 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 and such payments shall be made through one or more Paying Agents appointed under the Indenture to the Holder or Holders of this Security. Initially, the Paying Agent for the Securities shall be The Bank of New York Mellon, London Branch, One Canada Square, London E14 5AL, United Kingdom and the Place of Payment in respect of the Securities shall be the Corporate Trust Office of the Trustee, which as of the date hereof is hereby designated for purposes of the Securities initially as the office or agency of the Trustee located at said address. Initially, the Senior Debt Security Registrar for the Securities shall be The Bank of New York Mellon SA/NV, Luxembourg Branch, 2-4 Rue Eugene Ruppert, Vertigo Building – Polaris, Luxembourg, 2453, Luxembourg (which location shall also be a Place of Payment for purposes of Section 3.05(a) of the Base Indenture). The Company at any time and from time to time may change the Paying Agent or, subject to Section 9.01 of the Base Indenture, the Place of Payment, and the Senior Debt Security Registrar without prior notice to the Holders of the Securities, and in such an event the Company may act as Paying Agent or Security Registrar. Payments of principal of and interest on the Securities shall be made by wire transfer of immediately available funds; provided, however, that in the case of payments of principal, this Security is first surrendered to the Paying Agent.
This Security shall be governed by and construed in accordance with the laws of the State of New York, except for the waiver of set-off provisions referenced herein and set forth in Section 5.01(h) of the Base Indenture which shall be governed by and construed in accordance with English law.
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.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture, as defined herein.
THIS SECURITY IS NOT A DEPOSIT AND IS NOT COVERED BY THE U.K. FINANCIAL SERVICES COMPENSATION SCHEME OR INSURED BY THE UNITED STATES FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY OF THE UNITED STATES, THE UNITED KINGDOM OR ANY OTHER JURISDICTION.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual, facsimile or electronic signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| Date: March 10, 2021 | BARCLAYS PLC | |||||
| By: |
| |||||
| Name: | ||||||
| Title: | ||||||
| By: |
| |||||
| Name: | ||||||
| Title: | ||||||
Trustee’s Certificate of Authentication
This is one of the Securities of the series designated herein referred to in the Indenture.
| Date: March 10, 2021 | THE BANK OF NEW YORK MELLON, as Trustee | |||||
| By: |
| |||||
{Signature Page to Global Security No. [●]}
(Reverse of Security)
This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities” and each, a “Security”) issued and to be issued in one or more series under and governed by the Senior Debt Securities Indenture, dated as of January 17, 2018 (as heretofore amended and supplemented, the “Base Indenture”), between the Company and The Bank of New York Mellon, London Branch, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture (as defined below)) as amended and supplemented by the Tenth Supplemental Indenture, dated as of March 10, 2021 (the “Tenth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), and reference is hereby made to the Indenture, the terms of which are incorporated herein by reference, for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. Insofar as the provisions of the Indenture may conflict with the provisions set forth in this Security, the Indenture shall control for purposes of this Security. All terms used in this Security that are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
This Security is one of the series designated on the face hereof, limited to an aggregate principal amount of $1,000,000,000, which amount may be increased at the option of the Company if in the future it determines that it may wish to sell additional Securities of this series. References herein to “this series” mean the series designated on the face hereof.
The provisions set forth in Section 10.04 of the Base Indenture are applicable to this Security. In addition, the Company agrees, to the extent the Company has actual knowledge of such information, to provide the Paying Agent with sufficient information about any modification to the terms of the Securities for the purposes of determining whether FATCA Withholding Tax applies to any payment of principal or interest on the Securities.
The Company may redeem the Securities pursuant to Section 2.04 of the Tenth Supplemental Indenture. The Company may also redeem the Securities pursuant to Section 11.09 of the Base Indenture and/or Section 2.05 of the Tenth Supplemental Indenture. Any redemption of Securities by the Company is subject to the notice period and provisions set forth in Sections 11.02 and 11.04 of the Base Indenture and in Section 2.06 of the Tenth Supplemental Indenture, and to the conditions set forth in Section 11.10 of the Base Indenture.
The Company may repurchase the Securities pursuant to Section 11.12 of the Base Indenture.
All authority conferred or agreed to be conferred by each Holder and Beneficial Owner pursuant to this Security, including the consents given by such Holder and Beneficial Owner, shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder and Beneficial Owner.
The Securities shall constitute the Company’s direct, unconditional, unsecured and unsubordinated obligations and shall rank as set forth in Section 2.01(k) of the Tenth Supplemental Indenture.
The Securities are subject to the waiver of set-off provisions set forth in Section 5.01(h) of the Base Indenture.
This Security is subject to the provisions regarding the U.K. Bail-in Power Acknowledgement set forth in Section 12.01 of the Base Indenture.
The Securities are subject to provisions set forth in Article 5 of the Base Indenture.
If a Winding-Up Event occurs, the outstanding principal amount of this Security, together with any accrued but unpaid interest thereon, shall become immediately due and payable, without the need of any further action on the part of the Trustee, the Holders or any other Person.
If a Non-Payment Event occurs, the Trustee may, at its discretion, and without further notice to the Company, institute proceedings in England (or such other jurisdiction in which the Company may be organized) (but not elsewhere) for the winding-up of the Company and/or prove in a winding-up of the Company and/or claim in a liquidation or administration of the Company.
The Indenture permits the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities to be affected under the Indenture as contemplated by Article 9 of the Base Indenture. To the extent required by the U.S. Trust Indenture Act of 1939, as amended, but otherwise notwithstanding any other provision in this Security, the Holder of this Security shall have the right to receive (subject to Section 3.07 of the Base Indenture) payment of any principal of, and interest on, this Security when due (or, in the case of redemption, on or after the Redemption Date), and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder or holder.
This Security, and any other Securities of this series and of like tenor, are issuable only in registered form without coupons in initial denominations of $200,000 and increments of $1,000 thereafter. The denominations cannot be changed without the consent of the Trustee. The provisions on registration, transfer and exchange of the Securities set forth in Section 3.05 of the Base Indenture are applicable to the Securities.
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 shall be governed by and construed in accordance with the laws of the State of New York, except for the waiver of set-off provisions referenced herein and set forth in Section 5.01(h) of the Base Indenture, which shall be governed by and construed in accordance with English law.
Exhibit 5.1
D: +44 20 7614 2230
dgottlieb@cgsh.com
March 10, 2021
Barclays PLC
1 Churchill Place
London E14 5HP
Ladies and Gentlemen:
We have acted as special U.S. counsel to Barclays PLC, a public limited company incorporated under the law of England and Wales (the “Company”), in connection with the Company’s offering pursuant to a registration statement on Form F-3 (No. 333-253693) of $1,000,000,000 2.667% Fixed Rate Resetting Senior Callable Notes due 2032 (the “Securities”), to be issued under an indenture dated as of January 17, 2018 (as heretofore amended and supplemented, the “Base Indenture”), among the Company, The Bank of New York Mellon, London Branch, as trustee and paying agent (the “Trustee”), and The Bank of New York Mellon SA/NV, Luxembourg Branch, as registrar (the “Registrar”), as supplemented by a tenth supplemental indenture dated as of March 10, 2021 (the “Tenth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Company, the Trustee and the Registrar. Such registration statement, as amended as of its most recent effective date (March 3, 2021), insofar as it relates to the Securities (as determined for purposes of Rule 430B(f)(2) under the Securities Act of 1933, as amended (the “Securities Act”)), including the documents incorporated by reference therein but excluding Exhibits 25.1, 25.2 and 25.3, is herein called the “Registration Statement.”
In arriving at the opinion expressed below, we have reviewed the following documents
| (a) | the Registration Statement; |
| (b) | an executed copy of the Base Indenture; |
| (c) | an executed copy of the Tenth Supplemental Indenture; and |
| (d) | a copy of the Securities in global registered form (the “Global Security”) as executed by the Company and authenticated by the Trustee. |
In addition, we have made such investigations of law as we have deemed appropriate as a basis for the opinion expressed below.
Barclays PLC, Page 2
In rendering the opinion expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that the Securities are valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture; provided that we express no opinion as to the validity, binding effect or enforceability of the waiver of set-off provisions set forth in Section 5.01(h) of the Base Indenture (and the corresponding provision in the Global Security), which are governed by English law.
Insofar as the foregoing opinion relates to the validity, binding effect or enforceability of any agreement or obligation of the Company, (a) we have assumed that the Company and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Company regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience normally would be applicable to general business entities with respect to such agreement or obligation), (b) such opinion is subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity, (c) we express no opinion with respect to the effect of any mandatory choice of law rules and (d) such opinion is subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
We express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action relating to the Securities where jurisdiction based on diversity of citizenship under 28 U.S.C. §1332 does not exist.
The foregoing opinion is limited to the federal law of the United States of America and the law of the State of New York. With respect to matters governed by English law, we have relied on the opinion of Clifford Chance LLP dated March 10, 2021, as English counsel to the Company, which has been filed as Exhibit 5.2 to the Company’s Form 6-K dated March 10, 2021.
We hereby consent to the incorporation by reference of this opinion in the Registration Statement and the use of our name in the prospectus constituting a part of the Registration Statement and the prospectus supplement dated March 3, 2021 relating to the Securities under the heading “Validity of Notes.” In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
Barclays PLC, Page 3
The opinion expressed herein is rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinion expressed herein.
| Very truly yours,
CLEARY GOTTLIEB STEEN & HAMILTON LLP | ||
| By: | /s/ David I. Gottlieb | |
| David I. Gottlieb, a Partner | ||
Exhibit 5.2
|
CLIFFORD CHANCE LLP
10 UPPER BANK STREET London E14 5JJ
TEL +44 20 7006 1000 FAX +44 20 7006 5555 DX 149120 CANARY WHARF 3
www.cliffordchance.com | |||
| To Barclays PLC 1 Churchill Place London E14 5HP |
Our ref: 70-41013174 Direct Dial: +44 207006 2977 E-Mail: simon.sinclair@cliffordchance.com
10 March 2021 |
Barclays PLC
U.S.$1,000,000,000 2.667 per cent. Fixed Rate Resetting Senior Callable Notes due 2032
(the “Notes”)
We have acted as English legal advisers to Barclays PLC (the “Issuer”) in connection with the issue by the Issuer of the Notes under the senior debt securities indenture entered into on 17 January 2018 (as heretofore supplemented and amended, the “Base Indenture”) between the Issuer and The Bank of New York Mellon, London Branch as trustee (the “Trustee”), as amended and supplemented by the Tenth Supplemental Indenture dated as of 10 March 2021, among the Issuer, the Trustee and The Bank of New York Mellon SA/NV, Luxembourg Branch, as Senior Debt Security Registrar (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
| 1. | INTRODUCTION |
| 1.1 | Opinion Documents |
This Opinion relates to the Notes and the Indenture.
| 1.2 | Defined Terms |
| 1.2.1 | “DocuSign Platform” means the cloud based electronic signing platform owned and run by DocuSign Inc. |
| 1.2.2 | Terms defined or given a particular construction in the Indenture shall have the same meaning in this Opinion unless a contrary indication appears. |
CLIFFORD CHANCE LLP IS A LIMITED LIABILITY PARTNERSHIP REGISTERED IN ENGLAND AND WALES UNDER NO. OC323571. THE FIRM’S REGISTERED OFFICE AND PRINCIPAL PLACE OF BUSINESS IS AT 10 UPPER BANK STREET LONDON E14 5JJ. THE FIRM USES THE WORD “PARTNER” TO REFER TO A MEMBER OF CLIFFORD CHANCE LLP OR AN EMPLOYEE OR CONSULTANT WITH EQUIVALENT STANDING AND QUALIFICATIONS. THE FIRM IS AUTHORISED AND REGULATED BY THE SOLICITORS REGULATION AUTHORITY.
CLIFFORD CHANCE LLP
| 1.2.3 | Headings in this Opinion are for ease of reference only and shall not affect its interpretation. |
| 1.2.4 | All references in this Opinion to paragraphs mean paragraphs in this Opinion. |
| 1.3 | Legal Review |
In connection with the creation and issue of the Notes and the giving of this Opinion:
| 1.3.1 | we have reviewed the documents referred to in paragraph 1 of Schedule 1 (Documents and Enquiries) and completed the searches and enquiries referred to in paragraph 2 of Schedule 1 (Documents and Enquiries) and any references to such documents in this Opinion are to those documents as originally executed. Certain of such documents have been executed using the DocuSign Platform; |
| 1.3.2 | we have not verified the facts or the reasonableness of any statements (including statements as to foreign law) contained in the Indenture or the Prospectus, save as expressly specified in paragraph 2.3 (Taxation statements in the Base Prospectus); |
| 1.3.3 | we have not been responsible for ensuring that the Prospectus contains all material facts; and |
| 1.3.4 | we have not been responsible for ensuring that the Prospectus or the Form 6-K comply with the requirements of any government or regulatory authority. |
| 1.4 | Applicable Law |
This Opinion is governed by English law, relates only to English law as applied by the English courts as at today’s date and does not extend to the laws of any other jurisdiction (save as described in paragraph 1.5 (Taxation)). All non-contractual obligations and any other matters arising out of or in connection with this Opinion are governed by English law.
| 1.5 | Taxation |
We express no opinion on any taxation matter, and none is implied or may be inferred, save as expressly specified in paragraph 2.3 (Taxation statements in the Base Prospectus). In respect of those tax matters this Opinion is confined to, and given on the basis of, English law, United Kingdom tax law and Her Majesty’s Revenue and Customs (“HMRC”) published practice in force or applied in the United Kingdom as at today’s date.
- 2 -
CLIFFORD CHANCE LLP
| 1.6 | Assumptions and Reservations |
This Opinion is given on the basis of our understanding of the terms of the Indenture and the Notes, and the assumptions set out in Schedule 2 (Assumptions) and is subject to the reservations set out in Schedule 3 (Reservations). This Opinion is strictly limited to the matters stated in paragraph 2 (Opinion) and does not extend to any other matters.
| 2. | OPINION |
We are of the opinion that:
| 2.1 | Corporate Existence |
The Issuer is a company duly incorporated in England and has the capacity and power to create and issue the Notes, to enter into the Supplemental Indenture and to exercise its rights and perform its obligations under the Notes and the Indenture.
| 2.2 | Authorisation |
The issue of the Notes has been duly authorised by or on behalf of the Issuer.
| 2.3 | Taxation statements in the Base Prospectus |
The statements in the Base Prospectus under the heading “United Kingdom Taxation of Senior Debt Securities” are, insofar as they are relevant to the Notes, correct in all material respects.
| 3. | ADDRESSEES AND PURPOSE |
| 3.1.1 | The scope and content of this Opinion solely have regard to the interests of the Issuer in accordance with its instructions. This Opinion is provided in connection with the filing of the Form 6-K and is addressed to and is solely for the Issuer and it may not, without our prior written consent, be relied upon for any other purpose or be disclosed to or relied upon by any other person save as provided below. |
| 3.1.2 | We hereby consent to the filing of this opinion with the United States Securities and Exchange Commission (the “SEC”) as an exhibit to a Current Report on Form 6-K to be incorporated by reference into the Form F-3 Registration Statement filed with the SEC on 1 March 2021, and the reference to us under the headings “United Kingdom Taxation of Senior Debt Securities”, “Service of Process and Enforcement of Liabilities” and “Validity of Securities” in the Base Prospectus and under the heading “Validity of Notes” in the Prospectus |
- 3 -
CLIFFORD CHANCE LLP
| Supplement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the US Securities Act of 1933, as amended or the rules and regulations of the SEC thereunder. |
/s/ Clifford Chance.
- 4 -
CLIFFORD CHANCE LLP
SCHEDULE 1
DOCUMENTS AND ENQUIRIES
| 1. | DOCUMENTS |
| (a) | The prospectus dated 1 March 2021 relating to, inter alia, the Notes (the “Base Prospectus”). |
| (b) | The prospectus supplement dated 3 March 2021 relating to the Notes (the “Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”). |
| (c) | The final form of the Form 6-K expected to be filed with the SEC on 10 March 2021 relating to the Notes (the “Form 6-K”). |
| (d) | A copy of the Base Indenture. |
| (e) | A copy of the Supplemental Indenture. |
| (f) | A copy of the global notes representing the Notes dated 10 March 2021 (together, the “Global Notes”). |
| (g) | A copy of the certificate of incorporation of the Issuer dated 20 July 1896. |
| (h) | A copy of the Barclays Bank Act 1984. |
| (i) | A copy of the certificate of incorporation on re-registration of the Issuer dated 15 February 1982. |
| (j) | A copy of the certificate of incorporation on change of name of the Issuer dated 1 January 1985. |
| (k) | A copy of the articles of association of the Issuer as adopted by special resolution passed on 30 April 2010 and amended by special resolution passed on 25 April 2013, certified a true copy by Sophie Lukaszewski. |
| (l) | A copy of the extracts from the minutes of a meeting of the board of directors of the Issuer held on 15 December 2016, certified a true copy by Patrick Gonsalves (the “2016 Resolutions”). |
| (m) | A copy of the extracts from the minutes of a meeting of the board of directors of the Issuer held on 28 March 2018, certified a true copy by Gemma Tremlett (the “2018 Resolutions”). |
- 5 -
CLIFFORD CHANCE LLP
| (n) | A copy of the approval of the Group Finance Director of the Issuer dated 21 February 2017, certified a true copy by Anita Erling. |
| (o) | A copy of the approval of the Group Finance Director of the Issuer dated 20 February 2018, certified a true copy by Sophie Lukaszewski. |
| (p) | A copy of the approval of the Group Finance Director of the Issuer dated 24 February 2021, certified a true copy by Sophie Lukaszewski. |
| (q) | A copy of the power of attorney granted by the Issuer dated 19 June 2017, in favour of each of Miray Muminoglu, Timothy Allen, Stuart Frith and Daniel David. |
| (r) | A copy of the power of attorney granted by the Issuer dated 30 March 2020, in favour of Miray Muminoglu and Stuart Frith. |
| 2. | SEARCHES AND ENQUIRIES |
| (a) | A search was conducted with the Registrar of Companies in respect of the Issuer on 10 March 2021. |
| (b) | An enquiry by telephone was made at the Central Index of Winding Up Petitions at the Insolvency and Companies List in London at 10:03 a.m. on 10 March 2021 with respect to the Issuer. The presentation of a petition for the winding up of the Issuer may be subject to the temporary restrictions imposed by Schedule 10 of the Corporate Insolvency and Governance Act 2020 in response to the coronavirus pandemic. |
- 6 -
CLIFFORD CHANCE LLP
SCHEDULE 2
ASSUMPTIONS
| 1. | ORIGINAL AND GENUINE DOCUMENTATION |
| (a) | All signatures (including any electronic signatures), stamps and seals are genuine, all original documents are authentic, all deeds and counterparts were executed in single physical form and all copy documents supplied to us as photocopies or in portable document format (PDF) or other electronic form are genuine, accurate, complete and conform to the originals. |
| (b) | The copies of the certificate of incorporation, certificate of incorporation on change of name, certificate of re-registration and articles of association of the Issuer provided to us are accurate and complete as of the date of this Opinion. |
| (c) | The person whose name and electronic signature appears in the signature block of the Indenture (as applicable) and/or any Global Note is the person who signed the Indenture (as applicable) and/or such Global Note. |
Where, for the purposes of paragraphs 1(a) and 1(c) of this Schedule 2:
“sign” or “signed” means, in relation to the Indenture and/or each Global Note executed with an electronic signature, the process by which the signatory has applied such electronic signature to the Indenture (as applicable) and/or such Global Note; and
“electronic signature” means the signature in electronic form applied to the Indenture (as applicable) and/or any Global Note that is intended by the signatory to take effect as their signature including, without limitation, an image of the signatory’s handwritten signature, the typed name of the signatory, a signature generated by the signatory with a stylus on a touch pad or screen and any signature created by the signatory in accordance with the processes of an electronic signing platform.
| 2. | CORPORATE AUTHORITY |
| (a) | In resolving to create and issue the Notes and to enter into the Indenture the directors and the Group Finance Director of the Issuer acted in good faith to promote the success of the Issuer for the benefit of its members and in accordance with any other duty. |
- 7 -
CLIFFORD CHANCE LLP
| (b) | Each director of the Issuer has disclosed any interest which he or she may have in the issue of the Notes in accordance with the provisions of the Companies Act 2006 and the Issuer’s articles of association and none of the directors has any interest in the issue of the Notes except to the extent permitted by the Issuer’s articles of association. |
| (c) | The 2016 Resolutions and the 2018 Resolutions were duly passed at a properly constituted and quorate meeting of duly appointed directors of the Issuer and have not been amended or rescinded and are in full force and effect. |
| (d) | The approvals by the Group Finance Director of the Issuer referred to in Schedule 1 (Documents and Enquiries) have not been amended or rescinded and are in full force and effect. |
| (e) | The extracts from the minutes referred to in Schedule 1 (Documents and Enquiries) are true records of the proceedings at the meetings of the board of directors of the Issuer. |
| (f) | That, as at 21 February 2017, 20 February 2018 and 24 February 2021, Tushar Morzaria was duly appointed as Group Finance Director of the Issuer, as at 17 January 2018, Daniel David held the position of Vice President in the Capital Markets Execution Team of Group Treasury, as at 7 May 2020, 1 March 2021 and 10 March 2021, Miray Muminoglu held the position of Managing Director in the Capital Markets Execution Team of Group Treasury and, as at 10 March 2021, Stuart Frith held the position of Director in the Capital Markets Execution Team of Group Treasury. |
| (g) | The person, if other than the person whose signature it purports to be, who attached any electronic signature to any of the documents listed in Schedule 1 (Documents and Enquiries) on behalf of another person, had the authority of the latter person to do so. |
| (h) | Any relevant power of attorney granted by the Issuer referred to in Schedule 1 (Documents and Enquiries) had not been revoked and was in full force and effect at the time of execution of the Indenture and/or the Global Notes, as applicable. |
| 3. | CORPORATE CAPACITY OF THE PARTIES |
Each party to the Indenture (other than the Issuer) has the capacity, power and authority to enter into and to exercise its rights and to perform its obligations under the Indenture.
- 8 -
CLIFFORD CHANCE LLP
| 4. | EXECUTION OF INDENTURE AND NOTES |
| (a) | Each party to the Indenture (other than the Issuer) has duly executed and delivered the Indenture. |
| (b) | The terms of the Indenture have been complied with and the Indenture and the Global Notes have each been duly executed and delivered in accordance with the laws of the State of New York. |
| 5. | OTHER DOCUMENTS |
Save for those listed in Schedule 1 (Documents and Enquiries) there is no other agreement, instrument, other arrangement or relationship between any of the parties to the Indenture which modifies, supersedes or conflicts with the Indenture.
| 6. | TAX MATTERS |
The Issuer is resident only in the United Kingdom for United Kingdom tax purposes.
| 7. | SEARCHES AND ENQUIRIES |
There has been no alteration in the status or condition of the Issuer as disclosed by the searches and enquiries referred to in Schedule 1 (Documents and Enquiries). However, it is our experience that the searches and enquiries referred to in paragraphs 2(a) and 2(b) of Schedule 1 (Documents and Enquiries) may be unreliable. In particular, they are not conclusively capable of disclosing whether or not insolvency proceedings have been commenced in England, nor do they indicate whether or not insolvency proceedings have begun elsewhere. Further, the presentation of a petition for the winding up of the Issuer may be subject to the temporary restrictions imposed by Schedule 10 of the Corporate Insolvency and Governance Act 2020 in response to the coronavirus pandemic.
- 9 -
CLIFFORD CHANCE LLP
SCHEDULE 3
RESERVATIONS
| 1. | BANKING ACT 2009 |
The opinions set out in this letter are subject to any limitations arising from any measures taken pursuant to the stabilisation powers under the special resolution regime under the Banking Act 2009, as amended.
| 2. | TAXATION STATEMENTS |
The confirmation provided in paragraph 2.3 (Taxation statements in the Base Prospectus) is subject to the following specific reservations:
| (a) | We give no confirmation as to any section of the Prospectus other than the confirmation set out in paragraph 2.3 (Taxation statements in the Base Prospectus); and |
| (b) | The confirmation is given solely on the basis set out in paragraph 2.3 (Taxation statements in the Base Prospectus) and in particular takes into account the disclaimers and qualifications which are applied to those statements in the Base Prospectus and is limited to matters governed by English law, the tax law of the United Kingdom and HMRC’s published practice in force or applied in the United Kingdom as at today’s date. |
- 10 -