Equinor ASA F-3ASR, filed May 4, 2023
Equinor ASA (EQNR)
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As filed with the Securities and Exchange Commission on May 4, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
| EQUINOR ASA | Equinor Energy AS | Equinor US Capital LLC | ||
| (Exact name of Registrant as specified in its charter) |
(Exact name of Registrant as specified in its charter) |
(Exact name of Registrant as specified in its charter) | ||
| Kingdom of Norway | Kingdom of Norway | Delaware | ||
| (State or other jurisdiction of incorporation or organization) | (State or other jurisdiction of incorporation or organization) |
(State or other jurisdiction of incorporation or organization) | ||
| Not Applicable | Not Applicable | 84-4853081 | ||
| (I.R.S. Employer Identification Number) | (I.R.S. Employer Identification Number) | (I.R.S. Employer Identification Number) | ||
| Forusbeen 50, N-4035 | Forusbeen 50, N-4035 | 600 Washington Boulevard, | ||
| Stavanger, Norway | Stavanger, Norway | Suite 800 | ||
| Telephone No.: 011-47-5199-0000 | Telephone No.: 011-47-5199-0000 | Stamford, CT 06901, U.S.A. Tel. No.: (203) 978-6900 | ||
| (Address and telephone number of Registrant’s principal executive offices) | (Address and telephone number of Registrant’s principal executive offices) |
(Address and telephone number of Registrant’s principal executive offices) |
Equinor US Holding Inc.
600 Washington Boulevard,
Suite 800
Stamford, CT 06901, U.S.A.
Tel. No.: (203) 978-6900
(Name, address and telephone number of agent for service)
Please send copies of all communications to:
John Horsfield-Bradbury
Sullivan & Cromwell LLP
1 New Fetter Lane
London EC4A 1AN, England
Tel. No.: 44-20-7959-8900
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
| † | The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
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PROSPECTUS
EQUINOR ASA
Debt Securities
fully and unconditionally guaranteed by Equinor Energy AS
(a wholly owned subsidiary of Equinor ASA)
Ordinary Shares
In the form of ordinary shares or American Depositary Shares
EQUINOR US CAPITAL LLC
Debt Securities
fully and unconditionally guaranteed by Equinor ASA and Equinor Energy AS
Equinor ASA and Equinor US Capital LLC may use this prospectus to offer from time to time guaranteed debt securities. Equinor ASA may use this prospectus to offer from time to time ordinary shares, directly or in the form of American Depositary Shares.
Equinor’s ordinary shares are admitted to trading on the Oslo Stock Exchange under the symbol “EQNR”. Equinor’s American Depositary Shares, each representing one ordinary share, are listed on the New York Stock Exchange under the symbol “EQNR”.
Each time we sell the securities described in this prospectus, we will provide one or more supplements to this prospectus that will contain specific information about those securities and their offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any accompanying prospectus supplement, together with the additional information described under the heading “Where You Can Find More Information About Us”, carefully before you invest.
We may sell these securities to or through underwriters, and also to other purchasers or through agents. The names of any underwriters will be stated in any accompanying prospectus supplement.
Investing in these securities involves certain risks. See “Risk Factors” beginning on page 2.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
Prospectus dated May 4, 2023.
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| DESCRIPTION OF ORDINARY SHARES AND AMERICAN DEPOSITARY SHARES |
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Unless the context otherwise requires, in this prospectus, the term “Equinor” refers to Equinor ASA, the terms “Equinor group”, “we”, “our”, “ours” and “us” refer to Equinor and its consolidated subsidiaries, including Equinor Energy AS and Equinor US Capital LLC, “Equinor Energy” refers to Equinor Energy AS, “Equinor Capital” refers to Equinor US Capital LLC, “Equinor Debt Issuers” refers to Equinor and Equinor Capital (each an “Equinor debt issuer”) and the “guarantors” refers to Equinor ASA and Equinor Energy (each a “guarantor”).
This prospectus is part of a registration statement that we filed with the SEC utilizing a shelf registration process. Under this shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we use this prospectus to offer securities, we will provide a prospectus supplement that will contain specific information about the terms of those securities and their offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any accompanying prospectus supplement, together with the additional information described under the heading “Where You Can Find More Information About Us”, carefully before you invest.
Each of the Equinor debt issuers may be the issuer in an offering of debt securities. Debt securities offered by Equinor will be guaranteed by Equinor Energy and will be issued under the indenture among Equinor, as issuer, Equinor Energy, as guarantor and Deutsche Bank Trust Company Americas, as trustee (the “Equinor indenture”). Debt securities offered by Equinor Capital will be guaranteed by Equinor and Equinor Energy and will be issued under an indenture to be entered among Equinor Capital, as issuer, Equinor and Equinor Energy, as guarantors and a trustee (the “Equinor Capital indenture” and together with the Equinor indenture, the “indentures”). See “Description of Debt Securities and Guarantees”.
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Investing in the securities offered using this prospectus involves risk. You should consider carefully the risks described below, together with the risks described in the documents incorporated by reference into this prospectus and any risk factors included in the prospectus supplement, before you decide to buy our securities. If any of these risks actually occur, our business, financial condition and results of operations could suffer, and the trading price and liquidity of the securities offered using this prospectus could decline, in which case you may lose all or part of your investment.
Risks Relating to Our Business
You should read the “Risk Factors” incorporated in Equinor’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022 (the “2022 Annual Report”), which is incorporated by reference in this prospectus, or similar sections in subsequent filings incorporated by reference in this prospectus, for information on risks relating to our business.
Risks Relating to the Debt Securities
Because the debt securities are unsecured, your right to receive payments may be adversely affected.
The debt securities that we are offering will be unsecured. Unless otherwise specified in the applicable prospectus supplement, the debt securities are not subordinated to any of our other debt obligations and therefore they will rank equally with all our other unsecured and unsubordinated indebtedness. As of March 31, 2023, we had no secured indebtedness outstanding. If an Equinor debt issuer defaults on its debt securities or the guarantors default on the guarantees, or in the event of bankruptcy, liquidation or reorganization, then, to the extent that the Equinor debt issuer or the guarantors have granted security over their assets, the assets that secure these debts will be used to satisfy the obligations under that secured debt before the Equinor debt issuer or the guarantors, as the case may be, could make payment on the debt securities. If there is not enough collateral to satisfy the obligations of the secured debt, then the remaining amounts on the secured debt would share equally with all unsubordinated unsecured indebtedness.
Your rights as a holder of debt securities may be inferior to the rights of holders of debt securities issued under a different series pursuant to the indentures.
The debt securities issued by Equinor are governed by the Equinor indenture and the debt securities issued by Equinor Capital are governed by the Equinor Capital indenture, which are described herein under “Description of Debt Securities and Guarantees”. Each Equinor debt issuer may issue as many distinct series of debt securities under the applicable indenture as we wish. Each Equinor debt issuer may also issue a series of debt securities under the applicable indenture that provides holders with rights superior to the rights already granted or that may be granted in the future to holders of another series under that indenture. You should read carefully the specific terms of any particular series of debt securities we may offer contained in the prospectus supplement relating to such debt securities.
A ratings decline could adversely affect the value of the debt securities.
One or more independent credit rating agencies may assign credit ratings to the debt securities. The ratings may not reflect the potential impact of all risks related to structure, market, additional factors discussed in this prospectus, and other factors that may affect the value of the debt securities. A credit rating is not a recommendation to buy, sell or hold securities and may be revised or withdrawn by the rating agency at any time. Purchasers of securities rely on the creditworthiness of Equinor and, if applicable, Equinor Energy and no other person. Any of the rating agencies that rate the debt of an Equinor debt issuer has the ability to lower the ratings currently assigned to that debt as a result of its views about the current or future business, financial condition or
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results of operations of the Equinor group or other matters. Any ratings decline could adversely affect the value of the debt securities. Investment in the securities involves the risk that subsequent changes in actual or perceived creditworthiness of the Equinor group may adversely affect the market value of the securities.
Should Equinor default on the debt securities, or should a guarantor default on a guarantee, your right to receive payments on such debt securities or guarantee may be adversely affected by Norwegian insolvency laws.
Both Equinor and Equinor Energy are incorporated in and have their registered office in the Kingdom of Norway, and consequently it is likely that any insolvency proceedings applicable to Equinor or Equinor Energy would be governed by Norwegian law. If a Norwegian company is unable, or likely to be unable, to pay its debts, an examiner may be appointed to facilitate the survival of the company and the whole or any part of its business by formulating proposals for a compromise or scheme of arrangement. If an examiner is appointed, a protection period will be imposed so that the examiner can formulate and implement proposals for a compromise or scheme of arrangement. During the protection period, any enforcement action by a creditor of the Norwegian company is prohibited. In addition, the Norwegian company may be prohibited from paying any debts existing at the time of the presentation of the petition to appoint an examiner.
In the event of insolvency of Equinor and/or Equinor Energy, the claims of certain preferential creditors (including the Norwegian tax authority for certain unpaid taxes) will rank in priority to claims of unsecured creditors.
If Equinor and/or Equinor Energy become subject to an insolvency proceeding and have obligations to creditors that are treated under Norwegian law as creditors that are senior relative to the holders of the debt securities (including secured creditors), the holders of the debt securities may suffer losses as a result.
Because Equinor and Equinor Energy are Norwegian companies and a substantial portion of our assets and key personnel are located outside the United States, you may not be able to enforce any U.S. judgment for claims you may bring against us or our key personnel both in and outside the United States.
Both Equinor and Equinor Energy are organized under the laws of the Kingdom of Norway. A substantial portion of our assets are located outside the United States. In addition, many members of our board of directors and senior management are residents of countries other than the United States. As a result, it may be impossible for you to effect service of process within the United States upon Equinor, Equinor Energy or these persons or to enforce against us or these persons any judgments in civil and commercial matters, including judgments under United States federal securities laws. We understand that judgments of U.S. courts are generally not enforceable in Norway. Consequently, it could prove difficult to enforce civil liabilities solely based on U.S. federal securities laws or otherwise. Therefore, you may have difficulty enforcing any U.S. judgment against us or our non-U.S. resident directors and officers both in and outside the United States.
Equinor Capital is a finance subsidiary that has no revenue-generating operations of its own and depends on cash received from other members of the Equinor group to be able to make payments on the debt securities.
Equinor Capital is an indirect finance subsidiary of Equinor with limited assets and limited ability to generate revenues. The ability of Equinor Capital to make any payments on the debt securities will depend on the earnings, business and tax considerations, and legal and contractual restrictions on payments of dividends or other distributions by other members of the Equinor group. If Equinor Capital is not able to make payments on the debt securities, holders of the debt securities would have to rely on claims for payment under the guarantees, which are subject to the risks and limitations described herein. We cannot assure you that Equinor Capital will receive sufficient dividends, distributions or loans from other members of the Equinor group to service scheduled payments of interest, principal or other amounts due under the debt securities. Any of the situations described above could adversely affect the ability of Equinor Capital to service its obligations in respect of the debt securities.
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The debt securities lack a developed trading market, and such a market may never develop.
The Equinor debt issuers may issue debt securities in different series with different terms in amounts that are to be determined. There can be no assurance that an active trading market will develop for any series of these debt securities even if we list the debt securities on a securities exchange.
There can also be no assurance regarding the future development of a market for the debt securities or the ability of holders of the debt securities to sell their debt securities or the price at which such holders may be able to sell their debt securities. If such a market were to develop, the debt securities could trade at prices that may be higher or lower than the initial offering price and this may result in a return that is greater or less than the interest rate on, the debt security, in each case depending on many factors, including, among other things, prevailing interest rates, our operating results and the market for similar securities.
Any underwriters, broker-dealers or agents that participate in the distribution of the debt securities may make a market in the debt securities as permitted by applicable laws and regulations but will have no obligation to do so, and any such market-making activities may be discontinued at any time. Therefore, there can be no assurance as to the liquidity of any trading market for the debt securities or that an active public market for the debt securities will develop. See “Plan of Distribution”.
The substitution of an Equinor debt issuer as the issuer of the debt securities could cause you to realize taxable gain or loss for U.S. tax purposes and/or taxable gain or loss (including currency gains or losses) for Norwegian tax purposes, if any, on any such debt securities that you hold.
The terms of the debt securities issued under the Equinor indenture permit Equinor to transfer its obligations, as issuer of the debt securities of any series, to any subsidiary of Equinor, so long as the obligations of that Subsidiary are fully and unconditionally guaranteed by Equinor on the same terms as Equinor Energy’s guarantee of such debt securities. In addition, under the Equinor Capital indenture, Equinor Capital may transfer its obligations, as issuer of the debt securities of any series, to Equinor or to any subsidiary of Equinor.
Under U.S. tax law, the change in the obligor on the debt securities could be treated as a disposition of such debt securities that you hold, resulting in your realization of gain or loss on such debt securities even though you continue to hold the debt securities and receive no distribution in connection with the deemed disposition. Under Norwegian tax law, the change in the obligor on the debt securities could be treated as a realization of such debt securities that you hold for Norwegian tax purposes. If you are resident in Norway or subject to tax in Norway as a result of being involved in business activities in Norway and the holding of debt securities is effectively connected with such business activities, a realization of debt securities could result in Norwegian income taxation of gains or losses (including currency gains or losses), if any, related to the debt securities that you hold. See “Taxation” for discussion of possible tax consequences.
The Guarantees provided by Equinor Energy will automatically and unconditionally be released in certain circumstances.
The guarantees of Equinor Energy will automatically and unconditionally be terminated, without the consent of the trustee or the holders, at substantially the same time that the aggregate amount of indebtedness for borrowed money for which Equinor Energy is an obligor (as a guarantor, co-issuer or borrower, and subject to certain exceptions described under “Description of Debt Securities and Guarantees—Guarantees” below) does not exceed 10% of the aggregate principal amount of indebtedness for borrowed money of Equinor and its subsidiaries on a consolidated basis. If the guarantees are released, we are not required to replace them, and the debt securities will not have the benefit of an Equinor Energy or any other guarantee (other than the Equinor guarantee relating to debt securities of Equinor Capital) for their remaining maturity.
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We may be subject to changes in the Norwegian tax regime that could expand the existing withholding tax regime to cover the debt securities.
As of 1 July 2021, a withholding tax of 15 percent applies to interest payments and royalty payments made by a Norwegian resident company to foreign related entities resident in low tax jurisdictions. The withholding tax on interest payments is not applicable to creditors who are not related parties (that is, where there is direct or indirect ownership or control of at least 50 percent) resident for tax purposes in a low tax jurisdiction. This means that the withholding tax on interest payments does not apply to independent banks or other finance institutions or on bonds held by unrelated parties.
If future legislation were to require withholding of Norwegian taxes on interest payments on the debt securities, Equinor would be required, subject to certain exceptions, to pay additional amounts so that the net amounts received by the noteholder will equal the amount that would have been received without such withholding or deduction, as described under “Description of Debt Securities and Guarantees—Payment of Additional Amounts”. The requirement to pay such additional amounts on the debt securities (and potentially other outstanding indebtedness) could materially impact our cash flows. In addition, if Equinor were to become liable to pay additional amounts as a result of any such new legislation, it may be able to redeem the debt securities for their principal amounts plus accrued and unpaid interest and any related additional amounts, and there can be no assurance that you will be able to reinvest the amounts received upon such redemption at a rate that will provide the same rate of return as your investment in the debt securities.
We will not be required to pay additional amounts if payments on the debt securities are subject to withholding under FATCA.
Under Section 1471-1474 of the United States Internal Revenue Code (the “Code”) (and any current and future regulations or official interpretations thereof) (“FATCA”), certain non-U.S. financial institutions must comply with information reporting requirements or certification requirements in respect of their direct and indirect United States shareholders and/or United States accountholders to avoid becoming subject to withholding on certain payments. Although we are continuing to monitor our status under FATCA, we are currently registered as a foreign financial institution for these purposes. We and other non-U.S. financial institutions may accordingly be required to report information to the IRS regarding the holders of debt securities and to withhold on a portion of payments under the debt securities issued by Equinor to certain holders that fail to comply with the relevant information reporting requirements (or hold debt securities directly or indirectly through certain non-compliant intermediaries). However, such withholding will not apply to payments made before the date is two years after the date on which final regulations defining the term “foreign passthru payment” are enacted. Moreover, such withholding would only apply to debt securities issued at least six months after the date on which final regulations defining the term “foreign passthru payment” are enacted. Holders are urged to consult their own tax advisors and any banks or brokers through which they will hold debt securities as to the consequences (if any) of these rules to them.
In the case of debt securities issued by Equinor Capital, a 30% withholding tax may be imposed under FATCA on certain payments to you or to certain foreign financial institutions, investment funds and other non-U.S. persons receiving payments on your behalf if you or such persons fail to comply with certain information reporting requirements. Payments of interest that you receive in respect of the debt securities could be affected by this withholding if you are subject to the FATCA information reporting requirements and fail to comply with them or if you hold debt securities through a non-U.S. person (e.g., a foreign bank or broker) that fails to comply with these requirements (even if payments to you would not otherwise have been subject to FATCA withholding). You should consult your own tax advisors regarding the relevant U.S. law and other official guidance on FATCA withholding.
We will not pay any additional amounts in respect of FATCA withholding, so if this withholding applies, you will receive significantly less than the amount that you would have otherwise received with respect to your debt securities. Depending on your circumstances, you may be entitled to a refund or credit in respect of some or
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all of this withholding. However, even if you are entitled to have any such withholding refunded, the required procedures could be cumbersome and significantly delay the your receipt of any amounts withheld.
Risks Relating to the Ordinary Shares and American Depositary Shares
Equinor’s shares and American Depositary Shares may experience volatility which will negatively affect your investment.
In recent years, most major stock markets have experienced significant price and trading volume fluctuations. These fluctuations have often been unrelated or disproportionate to the operating performance of the underlying companies. Accordingly, there could be significant fluctuations in the price of Equinor’s shares and American Depositary Shares (“ADSs”), each representing one ordinary share, even if our operating results meet the expectations of the investment community. In addition,
| • | announcements by us or our competitors relating to operating results, earnings, volume, acquisitions or joint ventures, capital commitments or spending; |
| • | continued volatility in prices of oil and natural gas; |
| • | unfavorable economic conditions, socio-political instability and/or recession in the countries where Equinor operates; |
| • | changes in financial estimates or investment recommendations by securities analysts; |
| • | changes in market valuations of other oil companies; or |
| • | disruptions in trading on major stock markets, |
could cause the market price of Equinor’s shares and ADSs to fluctuate significantly.
While not expected, payments on the ordinary shares and ADSs may become subject to withholding under FATCA.
A 30% withholding tax will be imposed on certain payments to certain non-U.S. financial institutions that fail to comply with information reporting requirements or certification requirements in respect of their direct and indirect United States shareholders and/or United States accountholders. Although we are continuing to monitor our status under FATCA, we are currently registered as a foreign financial institution for these purposes. To avoid becoming subject to the 30% withholding tax on payments to them, we and other non-U.S. financial institutions may be required to report information to the IRS regarding the holders of ordinary shares or ADSs and to withhold on a portion of payments under the ordinary shares or ADSs to certain holders that fail to comply with the relevant information reporting requirements (or hold ordinary shares or ADSs directly or indirectly through certain non-compliant intermediaries). However, under proposed Treasury regulations, such withholding will not apply to payments made before the date that is two years after the date on which final regulations defining the terms “foreign passthru payment” are enacted. The rules for the implementation of this legislation have not yet been fully finalized, so it is impossible to determine at this time what impact, if any, this legislation will have on holders of the ordinary shares and ADSs.
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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus, including documents that are filed with the U.S. Securities and Exchange Commission (“SEC”) and incorporated by reference herein, and the related prospectus supplements contain certain forward-looking statements that involve risks and uncertainties. These forward-looking statements are made pursuant to the “Safe Harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. In some cases, we use words such as “aim”, “ambition”, “anticipate”, “believe”, “continue”, “could”, “estimate”, “expect”, “intend”, “commit”, “likely”, “objective”, “outlook”, “may”, “plan”, “schedule”, “seek”, “should”, “strategy”, “target”, “will”, “goal” and similar expressions to identify forward-looking statements.
Forward-looking statements include all statements other than statements of historical fact, including, among others, statements regarding our commitment to develop as a broad energy company and ambition to be a leading company in the energy transition; ambition to reach net zero by 2050 and expectations regarding progress on our energy transition plan and just transition plan; our ambitions regarding reduction in operated emissions and net carbon intensity and allocation of capital expenditures to renewables and low carbon solutions; our ambitions to decarbonise and maintain value in oil and gas, industrialise and upscale offshore wind, industrialise and commercialise carbon capture and storage and upscale and develop new value chains in hydrogen; ambition to attain a leadership position in the European CCS market; aims, expectations and plans for renewables production capacity and power generation, investments in renewables and low-carbon solutions and the balance between oil and renewables production; our expectations with respect to net carbon intensity, operated emissions, carbon and methane intensity and flaring reductions; our internal carbon price and other financial metrics for investment decisions; break-even considerations and targets; aims and expectations regarding Equinor’s resilience across different climate scenarios; future levels of, and expected value creation from, oil and gas production, scale and composition of the oil and gas portfolio, and development of CCS and hydrogen businesses; use of compensation and offset mechanisms and high-quality carbon sinks; plans to develop fields; our intention to optimise and mature our portfolio; future worldwide economic trends, market outlook and future economic projections and assumptions, including commodity price assumptions; expectations and plans regarding capital expenditures; future financial performance, including, without limitation, cash flow, liquidity and return on average capital employed; expectations regarding cash flow and returns from our oil and gas portfolio and renewable projects; organic capital expenditures through 2026; expectations and estimates regarding production and execution of projects; the ambition to keep unit of production cost in the top quartile of our peer group; scheduled maintenance activity and the effects thereof on equity production; business strategy and competitive position; sales, trading and market strategies; research and development initiatives and strategy, including ambitions regarding allocation of research and development capital towards renewables and low carbon-solutions; expectations related to production levels, unit production cost, investment, exploration activities, discoveries and development in connection with our ongoing transactions and projects; our ambitions, expectations and plans regarding diversity and inclusion and employee training; plans and expectations regarding completion and results of acquisitions, disposals and other contractual arrangements and delivery commitments; plans, ambitions and expectations regarding recovery factors and levels, future margins and future levels or development of capacity, reserves or resources; planned turnarounds and other maintenance activity; expectations regarding oil and gas volume growth, including for volumes lifted and sold to equal entitlement production; estimates related to production and development, forecasts, reporting levels and dates; operational expectations, estimates, schedules and costs; expectations relating to licences and leases; oil, gas, alternative fuel and energy prices, volatility, supply and demand; plans and expectations regarding processes related to human rights laws, corporate structure and organizational policies; technological innovation, implementation, position and expectations; expectations regarding role and composition of the board and our remuneration policies; our goal of safe and efficient operations; effectiveness of our internal policies and plans; our ability to manage our risk exposure, our liquidity levels and management of liquidity reserves; estimated or future liabilities, obligations or expenses; expected impact of currency and interest rate fluctuations and LIBOR discontinuation; projected outcome, impact or timing of HSE regulations; HSE goals and objectives of management for future operations; our ambitions and plans regarding biodiversity (including our aim to develop a net-positive impact approach for projects) and value creation for society; expectations related to regulatory trends; impact of PSA effects; projected impact or timing
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of administrative or governmental rules, standards, decisions, standards or laws (including taxation laws); projected impact of legal claims against us; plans for capital distribution, share buy-backs and amounts and timing of dividends.
You should not place undue reliance on forward-looking statements. Our actual results could differ materially from those anticipated in the forward-looking statements for many reasons, including the risks described above in “Risk Factors”, elsewhere in this prospectus, in the risks incorporated in Item 3.D and elsewhere in the 2022 Annual Report, which is incorporated by reference herein, and/or in the other documents we incorporate by reference herein.
These forward-looking statements reflect current views about future events, are based on management’s current expectations and assumptions and are, by their nature, subject to significant risks and uncertainties because they relate to events and depend on circumstances that will occur in the future. There are a number of factors that could cause actual results and developments to differ materially from those expressed or implied by these forward-looking statements, including levels of industry product supply, demand and pricing, in particular in light of significant oil price volatility and the uncertainty caused by the European security situation, including Russia’s invasion of Ukraine; unfavorable macroeconomic conditions and inflationary pressures; exchange rate and interest rate fluctuations; levels and calculations of reserves and material differences from reserves estimates; regulatory stability and access to resources, including attractive low carbon opportunities; the effects of climate change and changes in stakeholder sentiment and regulatory requirements regarding climate change; changes in market demand and supply for renewables; inability to meet strategic objectives; the development and use of new technology; social and/or political instability, including as a result of Russia’s invasion of Ukraine; failure to manage digital and cyber threats; operational problems; unsuccessful drilling; availability of adequate infrastructure; the actions of field partners and other third-parties; reputational damage; the actions of competitors; the actions of the Norwegian state as majority shareholder and exercise of ownership by the Norwegian state; changes or uncertainty in or non-compliance with laws and governmental regulations; adverse changes in tax regimes; the political and economic policies of Norway and other oil-producing countries; regulations on hydraulic fracturing and low-carbon value chains; liquidity, interest rate, equity and credit risks; risks relating to trading and commercial supply activities; an inability to attract and retain personnel; ineffectiveness of crisis management systems; inadequate insurance coverage; health, safety and environmental risks; physical security risks; failure to meet our ethical and social standards; non-compliance with international trade sanctions; and other factors discussed elsewhere in this prospectus, in the 2022 Annual Report or in the other documents we incorporate by reference herein.
The achievement of Equinor’s climate ambitions depends, in part, on broader societal shifts in consumer demands and technological advancements, each of which are beyond Equinor’s control. Should society’s demands and technological innovation not shift in parallel with Equinor’s pursuit of its energy transition plan, Equinor’s ability to meet its climate ambitions will be impaired. The reference to any scenario in the 2022 Annual Report or in the other documents we incorporate by reference herein, including any potential net-zero scenarios, does not imply Equinor views any particular scenario as likely to occur.
Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot assure you that our future results, level of activity, performance or achievements will meet these expectations. Moreover, neither we nor any other person assumes responsibility for the accuracy and completeness of the forward-looking statements. Any forward-looking statement speaks only as of the date on which such statement is made, and, except as required by applicable law, we undertake no obligation to update such statements, whether to make them conform to actual results or changes in our expectations or otherwise. Additional information, including information regarding factors that may affect our business, is contained in the 2022 Annual Report filed with the SEC, which can be found on Equinor’s website at www.equinor.com and in the other documents we file with the SEC. See “Where You Can Find More Information About Us” below.
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WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We have filed with the SEC a registration statement on Form F-3 relating to the securities covered by this prospectus. This prospectus is a part of the registration statement and does not contain all the information in the registration statement. Whenever a reference is made in this prospectus to a contract or other document of ours, the reference is only a summary and you should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document.
Equinor files annual and other reports with the SEC. The SEC allows us to incorporate by reference the information we file with them. This means that we can disclose important information to you by referring to documents. The information that we incorporate by reference is an important part of this prospectus. We incorporate by reference:
| • | the 2022 Annual Report, filed with the SEC on March 23, 2023; |
| • | the registration statement on Form 8-A containing a description of Equinor’s ordinary shares and American Depositary Shares, filed on June 12, 2001, and any amendment or report filed for the purpose of updating such description; and |
| • | our report on Form 6-K dated May 4, 2023 regarding our interim results for the three month period ended March 31, 2023. |
Finally, we incorporate by reference any future filings we make with the SEC under Sections 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), until we complete the offerings using this prospectus, and our reports on Form 6-K furnished to the SEC after the date of this prospectus only to the extent that the forms expressly state that such we deem such reports to be filed and incorporate them by reference in this prospectus.
Information that we file with the SEC will automatically update and supersede information in documents filed with the SEC at earlier dates. All information appearing in this prospectus is qualified in its entirety by the information and financial statements, including the notes, contained in the documents that we incorporate by reference in this prospectus.
The SEC maintains an Internet site at http://www.sec.gov, from which interested persons can electronically access Equinor’s SEC filings, including the registration statement, of which this prospectus forms a part, and the exhibits and schedules thereto. In addition, you may request a copy of these filings, at no cost, by writing or telephoning Equinor at the following address:
EQUINOR ASA
Forusbeen 50, N-4035
Stavanger, Norway
Tel. No.: 011-47-5199-0000
or by going to Equinor’s Internet website at www.Equinor.com.
Equinor’s ordinary shares are listed on the Oslo Stock Exchange and its American depositary shares, representing ordinary shares of Equinor, are quoted on the New York Stock Exchange. You can consult reports and other information about Equinor that it has filed pursuant to the rules of the New York Stock Exchange and the Oslo Stock Exchange at those exchanges.
Except for the documents specifically incorporated by reference into this prospectus, the information contained on, or that can be accessed through, these websites is not part of, and is not incorporated into, this prospectus supplement or the accompanying prospectus.
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No person has been authorized to give any information or to make any representations other than those contained in this prospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus and any accompanying supplement to this prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and any prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. Neither the delivery of this prospectus or any prospectus supplement nor any sale made hereunder or thereunder shall, under any circumstances, create any implication that there has been no change in our affairs since the date hereof or thereof or that the information contained herein or therein is correct as of any time subsequent to the date of such information.
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ENFORCEABILITY OF CIVIL LIABILITIES
Equinor is a public limited company incorporated under the laws of the Kingdom of Norway. Equinor Energy is a limited company incorporated under the laws of the Kingdom of Norway. Many members of the board of directors and senior management of Equinor and Equinor Energy, and certain experts named in this prospectus, are residents of countries other than the United States. All or a substantial portion of the assets of each of Equinor and Equinor Energy and the assets of such individuals are located outside the United States. As a result, it may not be possible for you to effect service of process within the United States upon these persons or upon Equinor and Equinor Energy, or it may be difficult to enforce judgments obtained in U.S. courts based on the civil liability provisions of the U.S. securities laws against us. Furthermore, judgments of U.S. courts are generally not enforceable in Norway. We may comply with a U.S. judgment voluntarily, but, if we were not to do so, you would have to apply to a Norwegian court for an original judgment. Consequently, it could prove difficult to enforce civil liabilities solely based on U.S. securities law in Norway. In addition, awards of punitive damages in actions brought in the United States or elsewhere may not be enforceable in Norway.
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Equinor is a public limited company incorporated under the laws of the Kingdom of Norway with its registered office at Forusbeen 50, N-4035 Stavanger, Norway. Equinor’s telephone number is +47 51 99 00 00. Equinor’s registration number in the Norwegian Register of Business Enterprises is 923 609 016. Equinor was incorporated on September 18, 1972 under the name Den norske stats oljeselskap AS. In 2001, Equinor was listed on the Oslo and New York stock exchanges and became a public limited company under the name Statoil ASA. As of May 16, 2018, Equinor changed its name from Statoil ASA to Equinor ASA.
As of March 31, 2023, the Norwegian State owned a 67 percent direct interest in Equinor. Equinor’s objective, as set out in its articles of association, is to develop, produce and market various forms of energy and derived products and services, as well as other business. Such activities may be carried out through participation in, or cooperation with, other companies.
Equinor is an international energy company, with a portfolio of projects encompassing oil and gas, renewables, hydrogen and low-carbon solutions. We are the largest supplier of energy to Europe, a world-leading offshore operator, the largest oil and gas operator in Norway and an international pioneer in renewables and low-carbon solutions and also engage in refining, processing and marketing as part of our operations. Our activities span operations in around 30 countries and we employ approximately 22,000 employees worldwide.
You can find a more detailed description of our business in the 2022 Annual Report, which is incorporated by reference in this prospectus.
Equinor Energy is a wholly owned subsidiary of Equinor and was incorporated and registered as a limited company in the Kingdom of Norway on February 1, 2007. Equinor Energy’s registered office is at Forusbeen 50, N-4035 Stavanger, Norway, and its telephone number is +47 51 99 00 00. Equinor Energy’s registration number in the Norwegian Register of Business Enterprises is 990 888 213. As of May 16, 2018, Equinor Energy changed its name from Statoil Petroleum AS to Equinor Energy AS.
The object of Equinor Energy, as set out in its articles of association, is to engage in exploration, production, transportation, refining and marketing of petroleum and petroleum-derived products, to extend financial assistance to other group companies, act as co-debtor for debt or under loan facilities entered into by Equinor as well as other business. Such activities may be carried out through participation in, or cooperation with, other companies. Equinor Energy is the owner of a considerable portion of the assets of the Equinor group (including licences, production plants and transportation systems and shareholdings in several international subsidiaries). Its main revenues are derived from the sale of crude oil and natural gas. Equinor Energy has no employees and is controlled and operated through the business lines of Equinor.
Equinor US Capital LLC is a wholly owned indirect subsidiary of Equinor and a wholly owned direct subsidiary of Equinor US Holding Inc. and was organized as a limited liability company under the laws of Delaware on February 21, 2020. The principal executive offices of Equinor Capital are located at 600 Washington Boulevard, Suite 800 Stamford, CT 06901, United States and its telephone number is (203) 978-6900.
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Equinor Capital is a financing vehicle for Equinor and has no operating history. Equinor Capital has no independent operations, other than raising debt for use by the Equinor group, hedging such debt when appropriate and on-lending funds raised to companies in the Equinor group. Equinor Capital will lend substantially all proceeds of its borrowings to Equinor US Holding Inc. The debt securities Equinor Capital may issue under this prospectus will be fully and unconditionally guaranteed by Equinor and Equinor Energy as to payment of principal, premium (if any), interest and any other amounts due.
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Unless otherwise indicated in an accompanying prospectus supplement, the net proceeds from the sale of securities will be used for general corporate purposes, which may include working capital, the repayment of existing debt (including debt incurred in connection with acquisitions) or the financing of acquisitions.
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CAPITALIZATION AND INDEBTEDNESS
The following table sets forth our current and long-term finance debt and total capitalization as at March 31, 2023.
| As at March 31, 2023 | ||||
| USD (in millions) | ||||
| Current finance debt inclusive of lease liabilities(1) |
6,271 | |||
| Non-current finance debt inclusive of lease liabilities(2) |
24,862 | |||
| Unsecured |
24,862 | |||
| Secured |
— | |||
| Non-controlling interests: |
5 | |||
| Shareholders’ equity: |
57,165 | |||
| Share capital |
1,142 | |||
| Additional paid-in capital |
2,710 | |||
| Retained earnings |
63,236 | |||
| Currency translation adjustments |
-10,281 | |||
| OCI from equity accounted investments |
359 | |||
| Total equity |
57,170 | |||
| Total finance debt and shareholders’ equity |
88,302 | |||
| (1) | $4,995 million of the $6,271 million Current finance debt is guaranteed by Equinor Energy and $1,275 million is unguaranteed. |
| (2) | $22,403 million of the $24,862 million Non-current finance debt is guaranteed by Equinor Energy and $2,459 million is unguaranteed. |
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
This prospectus relates to, among other securities, debt securities issued by Equinor or Equinor Capital. As required by U.S. federal law for all bonds and notes of companies that are publicly offered, the debt securities are governed by documents called indentures.
The indenture relating to debt securities issued by Equinor is a contract among Equinor, as issuer and Equinor Energy, as guarantor, and Deutsche Bank Trust Company Americas, as trustee. The indenture, as amended and supplemented is referred to as the “Equinor indenture”. In particular, on September 10, 2018, we and the trustee entered into a supplemental indenture to the indenture to provide that debt securities issued under the Equinor indenture on and after such date shall not benefit from a negative pledge or limitation on sale and leaseback transactions. On November 18, 2019, we and the trustee entered into a supplemental indenture to, among other things, modify Article Eight of the Equinor indenture to reflect the terms described under “—Special Situations—Mergers and Similar Events; Issuer Substitution” below and to reflect the guarantor release provisions described under “—Guarantees” below. Such changes do not apply to series of debt securities created under the Equinor indenture prior to the date of the applicable supplemental indenture.
The form of indenture relating to debt securities issued by Equinor Capital is a form contract among Equinor Capital, as issuer, Equinor and Equinor Energy, as guarantors, and a trustee. This indenture, as it may be amended and supplemented, is referred to as the “Equinor Capital indenture”. The indentures are substantially similar.
As you read this section, please remember that the specific terms of a series of debt securities as described in the accompanying prospectus supplement will supplement and, if applicable, may modify or replace the general terms described in this section. If there are any differences between the applicable prospectus supplement and this prospectus, the applicable prospectus supplement will control. Accordingly, the statements we make in this section may not apply to your debt security.
This section summarizes the material provisions of the indentures, the debt securities and the guarantees. However, because it is a summary, it does not describe every aspect of the indentures, the debt securities and the guarantees. This summary is subject to and qualified in its entirety by reference to the applicable indenture, each of which is incorporated herein by reference. The indentures and associated documents contain the full legal text of the matters described in this section. The indentures, the debt securities and the guarantees are governed by New York law. A copy of the Equinor indenture and a form of the Equinor Capital indenture are filed with the SEC as exhibits to the registration statement on Form F-3 of which this prospectus is a part. See “Where You Can Find More Information About Us” for information on how to obtain copies of these documents.
This summary also is subject to and qualified by reference to the description of the particular terms of your series described in the prospectus supplement. This section summarizes all material terms of the debt securities that are common to all series, unless otherwise indicated in the prospectus supplement relating to a particular series.
Each Equinor debt issuer may issue as many distinct series of debt securities under the applicable indenture as it wishes. Each Equinor debt issuer may also from time to time without the consent of the holders of the debt securities issued under the applicable indenture create and issue further debt securities having the same terms and conditions as debt securities of an already issued series under such indenture so that the further issue is consolidated and forms a single series with that series.
Amounts That We May Issue
The indentures do not limit the aggregate amount of debt securities that we may issue or the number of series or the aggregate amount of any particular series. Each Equinor debt issuer may issue debt securities and other securities at any time without your consent and without notifying you.
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Principal Amount, Stated Maturity and Maturity
The principal amount of a series of debt securities means the principal amount payable at its stated maturity, unless that amount is not determinable, in which case the principal amount of a debt security is its face amount. Any debt securities owned by us or any of our affiliates are not deemed to be outstanding.
The term “stated maturity” with respect to any debt security means the day on which the principal amount of your debt securities is scheduled to become due. The principal may become due sooner, by reason of redemption or acceleration after a default or otherwise in accordance with the terms of your debt securities. The day on which the principal actually becomes due, whether at the stated maturity or earlier, is called the “maturity” of the principal.
We also use the terms “stated maturity” and “maturity” to refer to the days when other payments become due. For example, we may refer to a regular interest payment date when an installment of interest is scheduled to become due as the “stated maturity” of that installment. When we refer to the “stated maturity” or the “maturity” of a debt security without specifying a particular payment, we mean the stated maturity or maturity, as the case may be, of the principal.
Form of Debt Securities
We will issue debt securities in global (book-entry) form only, unless specified otherwise in the applicable prospectus supplement. Debt securities in book-entry form will be represented by a global security registered in the name of a depositary, which will be the holder of all the debt securities represented by the global security. Those who own beneficial interests in a global debt security will do so through participants in the depositary’s securities clearance system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depositary and its participants. We generally will not recognize investors who hold securities in accounts at banks or brokers (i.e., in street name) as legal holders of securities. When we refer to the holders of securities, we mean only the actual legal and (if applicable) record holders of those securities. In the remainder of this description, “you” means direct holders and not street name or other indirect holders of securities.
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing securities. These special situations are:
| • | When the depositary (i) notifies the applicable Equinor debt issuer, that it is unwilling, unable or no longer qualified to continue as depositary or (ii) has ceased to be a clearing agency registered under the Exchange Act, or |
| • | When an event of default on the securities has occurred and has not been cured. Defaults on debt securities are discussed below under “—Default and Related Matters—Events of Default”. |
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or the trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
In addition, we will generally issue each debt security in registered form, without coupons, unless specified otherwise in the applicable prospectus supplement.
Types of Debt Securities
We may issue fixed rate debt securities, variable rate debt securities or indexed debt securities. A debt security may have elements of each of these three types of debt securities. For example, a debt security may bear interest at a fixed rate for some periods and at a variable rate in others. Similarly, a debt security may provide for a payment of principal at maturity linked to an index and also bear interest at a fixed or variable rate.
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Interest
Each series of fixed rate debt securities will bear interest from their original issue date or from the most recent date to which interest on the debt securities have been paid or made available for payment. Interest will accrue on the principal of a series of fixed rate debt securities at the fixed yearly rate stated in the applicable prospectus supplement, until the principal is paid or made available for payment or the debt securities are converted or exchanged. Each payment of interest due on an interest payment date or the date of maturity will include interest accrued from and including the last date to which interest has been paid, or made available for payment, or from the issue date if none has been paid or made available for payment, to but excluding the interest payment date or the date of maturity. Interest on a series of fixed rate debt securities will be computed on the basis of a 360-day year of twelve 30-day months, unless the applicable prospectus supplement provides that the interest will be computed on a different basis. The applicable Equinor debt issuer will pay interest on each interest payment date and at maturity as described below under “—Additional Mechanics—Payment and Paying Agents”.
Original Issue Discount Debt Securities
A debt security may be an original issue discount debt security. A series of debt securities of this type is issued at a price lower than its principal amount and provides that, upon redemption or acceleration of its maturity, an amount less than its principal amount will be payable. A debt security issued at a discount to its principal may, for U.S. federal income tax purposes, be considered an original issue discount debt security, regardless of the amount payable upon redemption or acceleration of maturity. See “Taxation—United States Taxation of Debt Securities—United States Holders—Original Issue Discount” for a brief description of the U.S. federal income tax consequences of owning an original issue discount debt security.
Information in the Prospectus Supplement
The specific financial, legal and other terms particular to a series of debt securities are described in the prospectus supplement and the pricing agreement relating to the series. Those terms may vary from the terms described here. Accordingly, this summary also is subject to and qualified by reference to the description of the terms of the series of debt securities described in the prospectus supplement.
The prospectus supplement relating to a series of debt securities will, to the extent applicable, describe the following terms of the series:
| • | which of the Equinor debt issuers is the issuer of the debt securities; |
| • | the title of the series of debt securities; |
| • | the issue price; |
| • | the person to whom any interest on a security of the series will be payable if other than the person in whose name the security is registered; |
| • | any limit on the aggregate principal amount of the series of debt securities; |
| • | any stock exchange on which we will list the series of debt securities; |
| • | the date or dates on which we will pay the principal of the series of debt securities; |
| • | the ranking of the debt securities; |
| • | whether the series of debt securities are fixed rate debt securities, variable rate debt securities or indexed debt securities; |
| • | the interest rate at which the debt securities will bear interest, if any, and the interest payment dates; |
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| • | the place where any amounts due will be payable and where this series of debt securities can be registered, transferred, exchanged or converted as well as the place where any notices or demands for this series of debt securities may be served; |
| • | any mandatory or optional sinking funds or analogous provisions or provisions for redemption at the option of the holder; |
| • | the period within which the price or prices at which the series of debt securities may, in accordance with any optional or mandatory redemption provisions that are not described in this prospectus, be redeemed by us and the other detailed terms and provisions of those optional or mandatory redemption provisions, if any; |
| • | the denominations in which the series of debt securities will be issuable if in other than denominations of $1,000 and any integral multiple of $1,000; |
| • | the currency of payment of principal, premium, if any, and interest on the series of debt securities if other than the currency of the United States of America and the manner of determining the equivalent amount in the currency of the United States of America; |
| • | if any payment on the debt securities of that series will be made, at our option or your option, in any currency other than in the currency in which the debt securities state that they will be payable, the terms and conditions regarding how that election shall be made; |
| • | if less than the entire principal amount is payable upon a declaration of acceleration of the maturity, that portion of the principal which is payable; |
| • | the applicability of the provisions described later under “—Defeasance and Discharge”; |
| • | if we may issue without your consent debt securities having the same terms and conditions as debt securities of an already issued series; |
| • | if the series of debt securities will be issuable in whole or part in the form of a global security, the form of any legends to be borne by such global security, the depositary or its nominee with respect to the series of debt securities, and any special circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depositary or its nominee; |
| • | whether additional amounts will be payable as described later under “—Payment of Additional Amounts” and, if applicable, a related right to an optional tax redemption for such a series; |
| • | the forms of the debt securities of the series and the guarantees endorsed on them; |
| • | any changes in the covenants and the events of default described later under “Default and Related Matters—Events of Default”; |
| • | any special U.S. federal income tax considerations relating to the series of debt securities; |
| • | the names and duties of any co-trustees, depositaries, authenticating agents, paying agents, transfer agents or registrars for the series of debt securities, as applicable; |
| • | any additional covenants to which we will be subject with respect to the debt securities of any series; and |
| • | any other special features of the series of debt securities. |
Guarantees
Equinor fully and unconditionally guarantees the payment of the principal of, premium, if any, and interest on the debt securities issued by Equinor Capital, including additional amounts, as described under “—Payment of Additional Amounts”, if any, and sinking fund payments, if any, which may be payable in respect of the debt securities issued by Equinor Capital. Equinor guarantees the payment of such amounts when such amounts become due and payable, whether at the stated maturity of the debt securities, by declaration of acceleration, call for redemption or otherwise.
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Equinor Energy fully and unconditionally guarantees the payment of the principal of, premium, if any, and interest on the debt securities issued by the applicable Equinor debt issuer, including additional amounts, as described under “—Payment of Additional Amounts”, if any, and sinking fund payments, if any, which may be payable in respect of the debt securities issued by such Equinor debt issuer. Equinor Energy guarantees the payment of such amounts when such amounts become due and payable, whether at the stated maturity of the debt securities, by declaration of acceleration, call for redemption or otherwise.
Equinor Energy will automatically and unconditionally be released from all obligations under its guarantees and the guarantees shall thereupon terminate and be discharged of no further force or effect, in the event that at substantially the same time as its guarantee of the debt securities is terminated, the aggregate amount of indebtedness for borrowed money for which Equinor Energy is an obligor (as a guarantor, co-issuer or borrower) does not exceed 10% of the aggregate principal amount of indebtedness for borrowed money of Equinor and its subsidiaries, on a consolidated basis, as of such time. For purposes of this paragraph, the amount of Equinor Energy’s indebtedness for borrowed money shall not include (x) any other debt the terms of which permit the termination of Equinor Energy’s guarantee of such debt under similar circumstances (including all debt issued under the Equinor indenture on or after November 18, 2019), as long as Equinor Energy’s obligations in respect of such other debt are terminated at substantially the same time as its guarantee of the debt securities, and (y) any debt that is being refinanced at substantially the same time that the guarantee of the debt securities is being released, provided that any obligations of Equinor Energy in respect of the debt that is incurred in the refinancing shall be included in the calculation of Equinor Energy’s indebtedness for borrowed money.
Modification and Waiver
There are three types of changes we can make to the indentures and the debt securities.
Changes Requiring Your Approval. First, there are changes that cannot be made to your debt securities without your specific approval. Following is a list of those types of changes:
| • | change the stated maturity of the principal, or any installment of principal or interest on a debt security; |
| • | reduce any principal amounts or the rate of interest on a debt security or any premium due on a debt security; |
| • | change any of our obligations to pay additional amounts described later under “—Payment of Additional Amounts”; |
| • | reduce the amount of principal payable upon acceleration of the maturity of an original issue discount security or any other debt security following a default; |
| • | change the place or currency of payment on a debt security; |
| • | impair your right to sue for payment; |
| • | reduce the percentage of holders of debt securities whose consent is needed to modify or amend the applicable indenture; |
| • | reduce the percentage of holders of debt securities whose consent is needed to waive compliance with various provisions of the applicable indenture or to waive various defaults; |
| • | modify any other aspect of the provisions dealing with modification and waiver of the applicable indenture, unless to provide that additional provisions of the indenture cannot be modified or waived without your consent; and |
| • | modify or affect in any manner adverse to you the obligations of a guarantor that relate to the payment of principal, premium and interest and sinking fund payments. |
Changes Requiring a Majority Vote. The second type of change to the indentures and the debt securities is the kind that requires a vote in favor by holders of debt securities owning not less than a majority of the principal
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amount of the outstanding securities of the particular series affected. Most changes fall into this category, except for clarifying changes and other changes that would not adversely affect holders of the debt securities in any material respect. The same vote would be required for us to obtain a waiver of a past default. However, we cannot obtain a waiver of a payment default or any other aspect of the applicable indenture or the debt securities listed in the first category described previously under “—Changes Requiring Your Approval” unless we obtain your individual consent to the waiver.
Changes Not Requiring Approval. The third type of change does not require any vote by holders of debt securities. This type is limited to clarifications and other changes that would not adversely affect holders of the debt securities in any material respect.
Further Details Concerning Voting. When taking a vote, we will use the following rules to decide how much principal amount to attribute to a security:
| • | for original issue discount securities, we will use the principal amount that would be due and payable on the voting date if the maturity of the debt securities were accelerated to that date because of a default; |
| • | for debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special rule for that security described in the prospectus supplement; |
| • | for debt securities denominated in one or more foreign currencies or currency units, we will use the U.S. dollar equivalent; |
| • | debt securities will not be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust for you money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described later under “—Defeasance and Discharge”; and |
| • | we will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding debt securities that are entitled to vote or take other action under the applicable indenture. In limited circumstances, the trustee will be entitled to set a record date for action by holders. If we or the trustee set a record date for a vote or other action to be taken by holders of a particular series, that vote or action may be taken only by persons who are holders of outstanding debt securities of that series on the record date and must be taken within 180 days following the record date or another period that we may specify (or as the trustee may specify, if it set the record date). We may shorten or lengthen (but not beyond 180 days) this period from time to time. |
| Street name and other indirect holders should consult their banks or brokers for information on how approval may be granted or denied if we seek to change an indenture or the debt securities or request a waiver. |
Redemption and Repayment
Unless otherwise indicated in the applicable prospectus supplement, a series of debt securities will not be entitled to the benefit of any sinking fund. This means we will not deposit money on a regular basis into any separate custodial account to repay a series of debt securities. In addition, we will not be entitled to redeem a series of debt securities before their stated maturity, other than as described below under “—Special Situations—Optional Tax Redemption”, unless the applicable prospectus supplement specifies a redemption commencement date. You will not be entitled to require us to buy your debt securities from you before their stated maturity unless the prospectus supplement specifies one or more repayment dates.
If we exercise an option to redeem any debt securities, we will give to the holder written notice of the principal amount of the debt securities to be redeemed, not less than 30 days nor more than 60 days before the applicable redemption date.
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Optional Tax Redemption
We may have the option to redeem the debt securities in the two situations described below.
The first situation is where, as a result of changes in or amendment to, or changes in the official application or interpretation of, any laws or regulations or rulings, or changes in the official application or interpretation of, or any execution of or amendment to, any treaties, the applicable Equinor debt issuer or a guarantor would be required to pay additional amounts as described later under “—Payment of Additional Amounts”.
This applies only in the case of changes, executions or amendments that become effective on or after the date specified in the prospectus supplement for the applicable series of debt securities and in the jurisdiction where such Equinor debt issuer or guarantor is incorporated, organized or tax resident. If the applicable Equinor debt issuer or guarantor is succeeded by another entity, the applicable jurisdiction will be the jurisdiction in which such successor entity is incorporated, organized or tax resident, and the applicable date will be the date the entity became a successor.
The applicable Equinor debt issuer or guarantor would not have the option to redeem in this case if we could have avoided the payment of additional amounts or the deduction or withholding by using reasonable measures available to it.
The second situation is where, following a merger, consolidation, sale or lease of Equinor’s assets to a person that assumes its obligations on the debt securities, that person is required to pay additional amounts as described later under “—Payment of Additional Amounts”. The applicable Equinor debt issuer, or the other person, would have the option to redeem the debt securities in this situation even if the additional amounts became payable immediately upon completion of the merger or sale transaction, including in connection with an internal corporate reorganization. Neither we nor that person have any obligation under the indentures to seek to avoid the obligation to pay additional amounts in this situation.
Payment of Additional Amounts
The government or any political subdivision or taxing authority of such government of any jurisdiction where the applicable Equinor debt issuer or a guarantor is incorporated, organized or tax resident may require such Equinor debt issuer or guarantor to withhold amounts from payments on the principal or interest on a debt security or payment under the guarantees for taxes, assessments or any other governmental charges. If any such jurisdiction requires a withholding of this type, we may be required to pay you additional amounts so that the net amount you receive will be the amount specified in the debt security to which you are entitled. However, in order for you to be entitled to receive the additional amount, you must not be resident in the jurisdiction that requires the withholding.
We will not have to pay additional amounts under any or any combination of the following circumstances:
| • | The tax, assessment or governmental charge would not have been imposed but for the fact that holder, or a fiduciary, settlor, beneficiary or member or shareholder of, or possessor of a power over, the holder, if the holder is an estate, trust, partnership or corporation, was or is connected to the taxing jurisdiction, other than by merely holding the debt security or receiving principal or interest in respect thereof. These connections include where the holder or related party is or has been a citizen or resident of the jurisdiction; is or has been present or engaged in trade or business in the jurisdiction; or has or had a permanent establishment in the jurisdiction. |
| • | The tax, assessment or governmental charge is on account of an estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge. |
| • | The tax, assessment or governmental charge is for a tax or governmental charge that is payable in a manner that does not involve withholding. |
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| • | The tax, assessment or governmental charge is imposed or withheld because the holder or beneficial owner failed to comply with any of our following requests: |
| • | to provide information about the nationality, residence or identity of the holder or beneficial owner, or |
| • | to make a declaration or other similar claim or satisfy any information or reporting requirements, in either case, that the statutes, treaties, regulations or administrative practices of the taxing jurisdiction require as a precondition to exemption from all or part of such tax, assessment or governmental charge. |
| • | The tax, assessment or governmental charge is imposed on a holder or beneficial owner who could have avoided such withholding or deduction by presenting its debt securities for payment, if presentation is required, to different paying agent. |
| • | The holder is a fiduciary, partnership or other entity that is not the sole beneficial owner of the payment of the principal of, or any interest on, any debt security, and the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) require the payment to be included in the income of a beneficiary or settlor for tax purposes with respect to such fiduciary, a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had such beneficiary, settlor, member or beneficial owner been the holder of such security. |
Notwithstanding anything to the contrary under this Section “—Payment of Additional Amounts”, no Equinor debt issuer or guarantor (nor any paying agent or any other person) shall be required to pay any additional amounts with respect to any withholding or deduction imposed on or in respect of any debt security pursuant to FATCA, the laws of Norway implementing FATCA or any agreement between such Equinor debt issuer or guarantor and any taxing or governmental authority entered into for FATCA purposes.
These provisions will also apply to any present or future taxes, assessments or governmental charges imposed by any jurisdiction in which a successor of the applicable Equinor debt issuer or guarantor is organized or incorporated. The prospectus supplement relating to the debt securities may describe additional circumstances in which we would not be required to pay additional amounts.
Under the Equinor Capital indenture, the covenant regarding Additional Amounts will not apply to any guarantor at any time when such guarantor is incorporated or organized in a jurisdiction in the United States, and will apply to the issuer under that indenture only any time it is incorporated or organized in a jurisdiction outside of the United States.
Covenants
The indentures do not contain any covenants restricting our ability to make payments, dispose of assets, issue and sell capital stock, enter into transactions with affiliates, create or incur liens on our property or engage in business other than our present business, except as described under “—Special Situations—Mergers and Similar Events”. A particular series of debt securities, however, may contain restrictive covenants of this type, which we will describe in the applicable prospectus supplement.
Defeasance and Discharge
Full Defeasance
The following discussion of full defeasance and discharge and covenant defeasance and discharge will be applicable to your series of debt securities only if we choose to have them apply to that series. If we do so choose, we will state that in the prospectus supplement.
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An Equinor debt issuer can legally release itself from any payment or other obligations on the debt securities, except for various obligations described below, if it, in addition to other actions, puts in place the following arrangements for you to be repaid:
| • | It must deposit in trust for your benefit and the benefit of all other direct holders of the applicable series of debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on such series of debt securities on their various due dates. |
| • | It must deliver to the trustee a legal opinion of counsel confirming that as a result of a change in U.S. federal income tax law it may make the above deposit without causing you to be taxed on the debt securities any differently than if it did not make the deposit and just repaid the debt securities ourselves or stating that it has received from, or there has been published by, the U.S. Internal Revenue Service (“IRS”) a ruling that states the same conclusion. |
| • | If the debt securities or applicable series of debt securities are listed on a securities exchange, it must deliver to the trustee a legal opinion of counsel confirming that the deposit, defeasance and discharge will not cause the debt securities or applicable series of debt securities to be delisted. |
However, even if an Equinor debt issuer takes these actions, a number of its obligations relating to the debt securities will remain. These include the following obligations:
| • | to register the transfer and exchange of debt securities; |
| • | to replace mutilated, destroyed, lost or stolen debt securities; |
| • | to maintain paying agencies; and |
| • | to hold money for payment in trust. |
Covenant Defeasance
An Equinor debt issuer can be legally released from compliance with certain covenants if, in addition to other actions, we take all the steps described above under “—Defeasance and Discharge” except that the opinion of counsel does not have to refer to a change in United States federal income tax laws or a ruling from the United States Internal Revenue Service. If an Equinor debt issuer accomplishes covenant defeasance, you can still look to it for repayment of the debt securities if there is a shortfall in the trust deposit.
Default and Related Matters
Ranking
The debt securities are not secured by any of our property or assets. Accordingly, your ownership of debt securities means you are one of the unsecured creditors of the applicable Equinor debt issuer. The debt securities may or may not be subordinated to any of our other debt obligations as indicated in the applicable prospectus supplement. If they not subordinated, the debt securities will rank with all other unsecured and unsubordinated indebtedness of the applicable Equinor debt issuer.
Events of Default
You will have special rights if an event of default occurs and is not cured, as described later in this subsection.
What Is an Event of Default? The term event of default means any of the following:
| • | The applicable Equinor debt issuer does not pay interest on a debt security within 30 days of its due date. |
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| • | The applicable Equinor debt issuer does not pay the principal or any premium on a debt security on its due date. |
| • | The applicable Equinor debt issuer does not deposit any sinking fund payment on its due date or within any applicable grace period. |
| • | The applicable Equinor debt issuer remains in breach of any covenant or any other term of the indenture for 90 days after it receives a notice of default stating it is in breach. The notice must be sent by either the trustee or holders of at least 25 percent of the principal amount of debt securities of the affected series. |
| • | The applicable Equinor debt issuer or a guarantor files for bankruptcy or certain other events in bankruptcy, insolvency or reorganization occur. |
| • | Any other event of default provided with respect to securities of that series. |
Remedies If an Event of Default Occurs. If an event of default has occurred and has not been cured, the trustee or the holders of not less than 25 percent in principal amount of the outstanding debt securities of the affected series may declare the entire principal amount of all the debt securities of that series (or, if any debt securities of that series are original issue discount securities, such portion of the principal amount of such securities as may be specified by the terms thereof) to be due and immediately payable, by a notice in writing to the applicable Equinor debt issuer (and to the trustee if given by the holders). This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be canceled by the holders of at least a majority in principal amount of the outstanding debt securities of the affected series if certain conditions are met.
Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the applicable indenture at the request of any holders unless the holders offer the trustee reasonable protection from costs, expenses and liability. This protection is called an indemnity. If reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of any series may direct the time, method and place of conducting any proceeding seeking any remedy available to the trustee. These majority holders may also direct the trustee in performing any other action under the applicable indenture. The trustee may decline to follow any such direction if the trustee in good faith determines that the proceeding so directed would involve the trustee in personal liability.
Before you bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
| • | The trustee must be given written notice that an event of default has occurred and remains uncured. |
| • | The holders of not less than 25 percent in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee institute proceedings because of the default, and must offer reasonable indemnity to the trustee against the costs, expenses and liabilities of taking such request. |
| • | The trustee must have not taken action for 60 days after receipt of the above notice, request and offer of indemnity. |
| • | No direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of the majority in principal amount of the outstanding securities of that series. |
| • | However, you are entitled at any time to bring a lawsuit for the payment of money due on your security on or after its due date. |
| Street name and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and to make or cancel a declaration of acceleration. |
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The applicable Equinor debt issuer will furnish to the trustee every year a written statement of certain of its officers and directors certifying that, to their knowledge, the applicable Equinor debt issuer is in compliance with the indenture and the debt securities, or else specifying any default.
Special Situations
Mergers and Similar Events; Issuer Substitution
The Equinor debt issuers and guarantors are generally permitted to consolidate or merge with another company or firm. The Equinor debt issuers and guarantors are also permitted to sell or lease substantially all of their assets to another firm or to buy or lease substantially all of the assets of another firm. However, none of the Equinor debt issuers or guarantors may (i) consolidate or merge with another person (except that under the Equinor Capital indenture, Equinor Capital may consolidate with Equinor or Equinor Energy) or (ii) sell or lease substantially all of its and its subsidiaries’ assets, in each case taken as a whole, to another person (other than one or more of Equinor’s direct or indirect wholly owned subsidiaries), whether such sale or lease is made directly or indirectly through one or more wholly owned subsidiaries holding such assets or a portion thereof, or (iii) buy or lease substantially all of the assets of another person (other than a direct or indirect wholly owned subsidiary of Equinor), unless all the following conditions, among others, are met
| • | Where such Equinor debt issuer merges out of existence or sells or leases substantially all of its assets, the other person must assume such Equinor debt issuer’s or guarantor’s obligations on the debt securities or the guarantee of the debt securities, as applicable, and under the applicable indenture. The other person’s assumption of these obligations must include the obligation to pay additional amounts described under “—Payment of Additional Amounts” with respect to taxes, assessments and other governmental charges imposed by its jurisdiction of incorporation, organization or tax residency; and |
| • | The merger, sale or lease of assets or other transaction must not cause a default on the debt securities, and neither the applicable Equinor debt issuer nor a guarantor already is in default, unless the merger or other transaction would cure the default. For purposes of this no-default test, a default would include an event of default that has occurred and not been cured, as described under “—Default and Related Matters—Events of Default—What is an Event of Default?” above. A default for this purpose would also include any event that would be an event of default if the requirements for giving us default notice or the default having to exist for a specific period of time were disregarded. |
In addition, under the Equinor indenture, Equinor is permitted to transfer its obligations, as issuer of the debt securities of any series, to any subsidiary, so long as (i) that subsidiary executes a supplemental indenture in which it agrees to be bound by the terms of such debt securities and the Equinor indenture, including the obligation to pay additional amounts described under “—Payment of Additional Amounts” with respect to taxes, assessments and other governmental charges imposed by its jurisdiction of incorporation, organization or tax residency and (ii) the obligations of that subsidiary are fully and unconditionally guaranteed by Equinor on the same terms as Equinor Energy’s guarantee of such debt securities. If that subsidiary is not incorporated in the Kingdom of Norway, United States or United Kingdom, the country in which it is incorporated must be a member of the Organization for Economic Cooperation and Development (or any successor). The provisions of the Equinor indenture with respect to consolidation, merger or sale or lease of assets will continue to apply to Equinor in its capacity as guarantor of the debt securities of the applicable series.
Under the Equinor Capital indenture, Equinor Capital is permitted to transfer its obligations, as issuer of the debt securities of any series, to Equinor or to any subsidiary of Equinor, so long as Equinor or that subsidiary executes a supplemental indenture in which it agrees to be bound by the terms of such debt securities and the Equinor indenture, including the obligation to pay additional amounts described under “—Payment of Additional Amounts” with respect to taxes, assessments and other governmental charges imposed by its jurisdiction of incorporation, organization or tax residency. If that subsidiary is not incorporated in the Kingdom of Norway, United States or United Kingdom, the country in which it is incorporated must be a member of the
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Organization for Economic Cooperation and Development (or any successor). If Equinor assumes the obligations of Equinor Capital in respect of any debt securities and under the Equinor Capital indenture, the guarantee of Equinor with respect to such debt securities shall terminate without any requirement that any action be taken by Equinor Capital, Equinor or the trustee.
Under U.S. tax law, the change in the obligor on the debt securities of any series could be treated as a disposition of such debt securities that you hold, resulting in your realization of gain or loss on such debt securities even though you continue to hold the debt securities and receive no distribution in connection with the deemed disposition. A change in the obligor might also result in possible other adverse tax consequences. See “Taxation” for discussion of possible tax consequences.
No vote by holders of the debt securities approving any of these actions is required, unless as part of the transaction we make changes to the applicable indenture requiring your approval, as described under “—Modification and Waiver”. We may take these actions as part of a transaction involving outside third parties or as part of an internal corporate reorganization. We may take these actions even if they result in a lower credit rating being assigned to the debt securities of the applicable series or additional amounts becoming payable in respect of withholding tax and the debt securities of the applicable series thus being subject to the optional redemption described under “—Optional tax redemption”.
Additional Mechanics
Form, Exchange and Transfer
You may have your debt securities broken into more debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed. This is called an exchange.
You may exchange or transfer registered debt securities at the office of the trustee. The trustee acts as our agent for registering debt securities in the names of holders and transferring registered debt securities. We may change this appointment to another entity or perform the service ourselves. The entity performing the role of maintaining the list of registered holders is called the security registrar. It will also register transfers of the registered debt securities.
You will not be required to pay a service charge for registering a transfer or exchange debt securities, but you may be required to pay for any tax or other governmental charge associated with the registration of the exchange or transfer. The transfer or exchange of a registered debt security will only be made if the security registrar is satisfied with your proof of ownership.
If we have designated additional transfer agents, they are named in the prospectus supplement. We may cancel the designation of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts.
If the debt securities are redeemable and we redeem less than all of the debt securities of a particular series, we may block the transfer or exchange of debt securities during a specified period of time in order to freeze the list of holders to prepare the mailing. The period begins 15 days before the day we mail the notice of redemption and ends on the day of that mailing. We may also refuse to register transfers or exchanges of debt securities selected for redemption. However, we will continue to permit transfers and exchanges of the unredeemed portion of any security being partially redeemed.
Payment and Paying Agents
We will pay interest to you if you are a direct holder listed in the trustee’s records at the close of business on a particular day in advance of each due date for interest, even if you no longer own the security on the interest due date. That particular day, usually about two weeks in advance of the interest due date, is called the regular record date and is stated in the applicable prospectus supplement.
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Holders buying and selling debt securities must work out between them how to compensate for the fact that we will pay all the interest for an interest period to the one who is the registered holder on the regular record date. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly between buyer and seller.
We will pay interest, principal and any other money due on the registered debt securities at the corporate trust office of the trustee in New York City. You must make arrangements to have your payments picked up at or wired from that office. We may also choose to pay interest by mailing checks. Interest on global securities will be paid to the holder thereof by wire transfer of same day funds.
| Street name and other indirect holders should consult their banks or brokers for information on how they will receive payments. |
We may also arrange for additional payment offices, and may cancel or change these offices, including our use of the trustee’s corporate trust office. These offices are called paying agents. We may also choose to act as our own paying agent. We must notify the trustee of changes in the paying agent for any particular series of debt securities.
Notices
We and the trustee will send notices only to direct holders, using their addresses as listed in the trustee’s records.
Regardless of who acts as paying agent, all money that we pay to a paying agent that remains unclaimed at the end of two years after the amount is due to direct holders will be repaid to the applicable Equinor debt issuer or guarantor, as the case may be. After that two-year period, you may look only to the applicable Equinor debt issuer or guarantor for payment and not to the trustee, any other paying agent or anyone else.
Regarding the Trustee
Deutsche Bank Trust Company Americas will act as the trustee under the Equinor indenture. Equinor and some of its subsidiaries maintain ordinary banking relations with the trustee under an indenture and affiliates of the trustee in the ordinary course of business.
If an event of default occurs, or an event occurs that would be an event of default if the requirements for giving default notice or the default having to exist for a specific period of time were disregarded, the trustee may, in the circumstances set out in Section 310 of the Trust Indenture Act of 1939 (the “Trust Indenture Act”), thereafter be considered to have a conflicting interest with respect to the debt securities or the applicable indenture for purposes of the Trust Indenture Act. In that case, the trustee may be required to resign as trustee under the applicable indenture and we would be required to appoint a successor trustee.
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DESCRIPTION OF ORDINARY SHARES AND AMERICAN DEPOSITARY SHARES
For a description of Equinor’s ordinary shares and American Depositary Shares, see Equinor’s Form 8-A, filed on June 12, 2001, which is incorporated by reference in this prospectus, the Further Amended and Restated Deposit Agreement (the “Deposit Agreement”), dated as of February 4, 2019, among inter alia Equinor and JPMorgan Chase Bank, N.A. as Depositary (incorporated by reference to Exhibit (a) of Equinor’s Registration Statement on Form F-6 filed with the SEC on October 13, 2022) and/or descriptions in subsequent filings incorporated by reference in this prospectus.
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Securities we issue may be held through one or more international and domestic clearing systems. The principal clearing systems we will use are the book-entry systems operated by The Depository Trust Company (“DTC”) in the United States, Clearstream Banking, société anonyme, in Luxembourg (“Clearstream”) and Euroclear Bank S.A./N.V. in Brussels, Belgium (“Euroclear”). These systems have established electronic securities and payment transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow securities to be issued, held and transferred among the clearing systems without the physical transfer of certificates.
The policies of DTC, Clearstream and Euroclear will govern payments, transfers, exchange and other matters relating to the investor’s interest in securities held by them. This is also true for any other clearance system that may be named in a prospectus supplement.
We have no responsibility for any aspect of the actions of DTC, Clearstream or Euroclear or any of their direct or indirect participants. We have no responsibility for any aspect of the records kept by DTC, Clearstream or Euroclear or any of their direct or indirect participants. We also do not supervise these systems in any way. This is also true for any other clearing system indicated in a prospectus supplement.
DTC, Clearstream and Euroclear and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. You should be aware that they are not obligated to perform these procedures and may modify them or discontinue them at any time.
The description of the clearing systems in this section reflects our understanding of the rules and procedures of DTC, Clearstream and Euroclear as they are currently in effect. Those systems could change their rules and procedures at any time.
Considerations Relating to DTC
DTC has informed us as follows:
DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that DTC’s participants (“direct participants”) deposit with DTC. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in deposited securities through electronic computerized book-entry transfers and pledges between direct participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a DTC participant, either directly or indirectly. The DTC rules applicable to its participants are on file with the SEC.
Purchases of securities within the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of each actual purchaser of each security is in turn to be recorded on the direct and indirect participants’ records, including Euroclear and Clearstream. Beneficial owners will not receive written confirmation from DTC of their purchases. Beneficial owners are expected to receive written confirmations providing details of the transaction, as well as
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periodic statements of their holdings, from the direct or indirect participant through which the beneficial owner entered into the transaction. Transfers of ownership interests in the securities are to be accomplished by entries made on the books of direct or indirect participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the securities, except in the limited circumstances described above under “Description of Debt Securities and Guarantees—Form of Debt Securities”.
To facilitate subsequent transfers, all securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not effect any change in beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities; DTC’s records reflect only the identity of the direct participants to whose accounts such securities are credited, which may or may not be the beneficial owners. The direct and indirect participants are responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to its direct participants, by its direct participants to indirect participants, and by its direct and indirect participants to beneficial owners of the securities will be governed by arrangements among them respectively, subject to any statutory or regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities within an issue are being redeemed, DTC will determine by lot the amount of the interest of each direct participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will itself consent or vote with respect to the securities unless authorized by a direct participant in accordance with DTC’s MMI procedures. Under its usual procedures, DTC mails an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns Cede & Co.’s consenting rights to those direct participants to whose accounts such securities are credited on the record date (identified in a listing attached to the omnibus proxy).
Redemption proceeds and distribution payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us or our agent, on the relevant payment date in accordance with their respective holdings shown on DTC’s records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name”, and will be the responsibility of such participants and not of DTC, the relevant agent or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of redemption proceeds and distributions to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of us or our agent, disbursements of such payments to direct participants are the responsibility of DTC, and disbursements of such payments to the beneficial owners are the responsibility of direct and indirect participants.
The information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be accurate, but we assume no responsibility for the accuracy thereof.
Considerations Relating to Euroclear and Clearstream
Euroclear and Clearstream are securities clearance systems in Europe. Both systems clear and settle securities transactions between their participants through electronic, book-entry delivery of securities against payment.
Euroclear and Clearstream may be depositaries for a global security. In addition, if DTC is the depositary for a global security, Euroclear and Clearstream may hold interests in the global security as participants in DTC.
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As long as any global security is held by Euroclear or Clearstream, as depositary, you may hold an interest in the global security only through an organization that participates, directly or indirectly, in Euroclear or Clearstream. If Euroclear or Clearstream is the depositary for a global security and there is no depositary in the United States, you will not be able to hold interests in that global security through any securities clearance system in the United States.
Transactions between participants in Euroclear or Clearstream, on the one hand, and participants in DTC, on the other hand, when DTC is the depositary, would also be subject to DTC’s rules and procedures.
Special Timing Considerations
You should be aware that investors will only be able to make and receive deliveries, payments and other communications involving the securities through Clearstream and Euroclear on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
In addition, because of time-zone differences, there may be problems with completing transactions involving Clearstream and Euroclear on the same business day as in the United States. U.S. investors who wish to transfer their interests in the securities, or to receive or make a payment or delivery of the securities, on a particular day, may find that the transactions will not be performed until the next business day in Luxembourg or Brussels, depending on whether Clearstream or Euroclear is used.
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United States Taxation
This section describes the material United States federal income tax consequences of owning securities we may offer pursuant to this prospectus. It applies to you only if you acquire the offered securities in an offering or offerings contemplated by this prospectus and you hold the offered securities as capital assets for tax purposes. This section is the opinion of Sullivan & Cromwell, LLP, U.S. counsel to Equinor. This section addresses only United States federal income taxation and does not discuss all of the tax consequences that may be relevant to you in light of your individual circumstances, including foreign, state or local tax consequences, and tax consequences arising under the Medicare contribution tax on net investment income or the alternative minimum tax. This section does not apply to you if you are a member of a special class of holders subject to special rules, including:
| • | a dealer in securities or currencies, |
| • | a trader in securities that elects to use a mark-to-market method of accounting for its securities holdings, |
| • | a bank, |
| • | a tax-exempt organization, |
| • | a life insurance company, |
| • | In the case of ordinary shares or ADSs, a person that actually or constructively owns 10 percent of more of the voting stock of Equinor or of the total value of stock of Equinor, |
| • | a person that holds offered securities as part of a straddle or a hedging or conversion transaction (including, in the case of debt securities, debt securities owned as a hedge, or that are hedged, against interest rate or currency risks), |
| • | a person that purchases or sells securities as part of a wash sale for tax purposes, or |
| • | a United States holder (as defined below) whose functional currency is not the U.S. dollar. |
This section is based on the Internal Revenue Code of 1986, as amended (the “Code”), its legislative history, existing and proposed regulations under the Code, published rulings and court decisions, all as currently in effect, as well as on the Convention between the United States of America and the Kingdom of Norway for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Property (the “Treaty”).
You are a United States holder if you are a beneficial owner of an offered security and you are for United States federal income tax purposes:
| • | a citizen or resident of the United States, |
| • | a domestic corporation, |
| • | an estate whose income is subject to United States federal income tax regardless of its source, or |
| • | a trust if a United States court can exercise primary supervision over the trust’s administration and one or more United States persons are authorized to control all substantial decisions of the trust. |
You are a non-United States holder if you are the beneficial owner of an offered security and are, for United States federal income tax purposes:
| • | a nonresident alien individual; |
| • | a foreign corporation; or |
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| • | an estate or trust that in either case is not subject to United States federal income tax on a net income basis on income or gain from the security. |
If a partnership holds the offered securities, the United States federal income tax treatment of a partner will generally depend on the status of the partner and the tax treatment of the partnership. A partner in a partnership holding the offered securities should consult its tax advisor with regard to the United States federal income tax treatment of an investment in the offered securities.
Information with Respect to Foreign Financial Assets
A United States holder that owns “specified foreign financial assets” with an aggregate value in excess of $50,000 (and in some circumstances, a higher threshold) may be required to file an information report with respect to such assets with their tax returns. “Specified foreign financial assets” may include financial accounts maintained by non-U.S. financial institutions, as well as the following, but only if they are held for investment and not held in accounts maintained by financial institutions: (i) stocks and securities issued by non-United States persons, (ii) financial instruments and contracts held for investment that have non-United States issuers or counterparties and (iii) interests in foreign entities. United States holders of securities issued by Equinor are urged to consult their tax advisors regarding the application of this reporting requirement to their ownership of the ordinary shares, ADSs, or debt securities.
| This discussion is a general summary and does not cover all the tax matters that may be applicable to each individual investor in ordinary shares, ADSs and debt securities. You should consult your own tax advisor regarding the United States federal, state and local and other tax consequences of owning and disposing of offered securities in your particular circumstances. |
United States Taxation of Debt Securities
This discussion describes the principal United States federal income tax consequences of owning the debt securities described in this prospectus.
This discussion deals only with debt securities that are due to mature 30 years or less from the date on which they are issued. The United States federal income tax consequences of owning debt securities that are due to mature more than 30 years from their date of issue will be discussed in the applicable prospectus supplement.
United States Holders
If you are not a United States holder, this section does not apply to you, and you should see the sections entitled “Non-United States Holders” below for information that may apply to you.
Payments of Interest
Except as described below in the case of interest on a “discount debt security” that is not “qualified stated interest”, each as defined later under “Original Issue Discount—General”, you will be taxed on any interest and any additional amounts payable on your debt security, whether payable in U.S. dollars or a foreign currency, including a composite currency or basket of currencies other than U.S. dollars, as ordinary income at the time you receive the interest or when it accrues, depending on your method of accounting for tax purposes.
Interest paid on, and original issue discount (as described below under “—Original Issue Discount”), if any, accrued with respect to the debt securities that are issued by Equinor Capital constitutes income from sources within the United States.
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Interest paid by us on the debt securities issued by Equinor and original issue discount, if any, accrued with respect to such debt securities (as described below under “—Original Issue Discount”) and any additional amounts paid with respect to withholding tax on such debt securities, including withholding tax on payments of such additional amounts, are income from sources outside the United States and will, depending on your circumstances, be either “passive” or “general” income for purposes of the rules regarding the foreign tax credit allowable to a United States holder.
Cash Basis Taxpayers. If you are a taxpayer that uses the cash receipts and disbursements method of accounting for tax purposes and you receive an interest payment that is denominated in, or determined by reference to, a foreign currency, you would recognize income equal to the U.S. dollar value of the interest payment, based on the exchange rate in effect on the date of receipt, regardless of whether you actually convert the payment into U.S. dollars.
Accrual Basis Taxpayers. If you are a taxpayer that uses an accrual method of accounting for tax purposes, you may determine the amount of income that you recognize with respect to an interest payment denominated in, or determined by reference to, a foreign currency by using one of two methods. Under the first method, you would determine the amount of income accrued based on the average exchange rate in effect during the interest accrual period or, with respect to an accrual period that spans two taxable years, that part of the period within the taxable year.
If you elect the second method, you would determine the amount of income accrued on the basis of the exchange rate in effect on the last day of the accrual period, or, in the case of an accrual period that spans two taxable years, the exchange rate in effect on the last day of the part of the period within the taxable year. Additionally, under this second method, if you receive a payment of interest within five business days of the last day of your accrual period or taxable year, you may instead translate the interest accrued into U.S. dollars at the exchange rate in effect on the day that you actually receive the interest payment. If you elect the second method, it would apply to all debt instruments that you hold at the beginning of the first taxable year to which the election applies and to all debt instruments that you subsequently acquire. You may not revoke this election without the consent of the IRS.
When you actually receive an interest payment, including a payment attributable to accrued but unpaid interest upon the sale or retirement of your debt security, denominated in, or determined by reference to, a foreign currency for which you accrued an amount of income, you will recognize ordinary income or loss measured by the difference, if any, between the exchange rate that you used to accrue interest income and the exchange rate in effect on the date of receipt, regardless of whether you actually convert the payment into U.S. dollars.
Original Issue Discount
General. If you own a debt security, other than a short-term debt security with a term of one year or less, it would be treated as a discount debt security issued at an original issue discount if the amount by which the debt security’s stated redemption price at maturity exceeds its issue price is more than a de minimis amount. Generally, a debt security’s issue price will be the first price at which a substantial amount of debt securities included in the issue of which the debt security is a part is sold to persons other than bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents, or wholesalers. A debt security’s stated redemption price at maturity is the total of all payments provided by the debt security that are not payments of qualified stated interest. Generally, an interest payment on a debt security is qualified stated interest if it is one of a series of stated interest payments on a debt security that are unconditionally payable at least annually at a single fixed rate, with certain exceptions for lower rates paid during some periods applied to the outstanding principal amount of the debt security. There are special rules for variable rate debt securities that are discussed under “—Variable Rate Debt Securities”.
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In general, your debt security is not a discount debt security if the amount by which its stated redemption price at maturity exceeds its issue price is less than 1⁄4 of 1 percent of its stated redemption price at maturity multiplied by the number of complete years to its maturity. Your debt security would have de minimis original issue discount if the amount of the excess is less than the de minimis amount. If your debt security has de minimis original issue discount, you would include the de minimis amount in income as stated principal payments are made on the debt security, unless you make the election described below under “—Election to Treat All Interest as Original Issue Discount”. You can determine the includible amount with respect to each such payment by multiplying the total amount of your debt security’s de minimis original issue discount by a fraction equal to:
| • | the amount of the principal payment made |
divided by:
| • | the stated principal amount of the debt security. |
Generally, if your discount debt security matures more than one year from its date of issue, you must include original issue discount, or OID, in income before you receive cash attributable to that income. The amount of OID that you would include in income is calculated using a constant-yield method, and generally you would include increasingly greater amounts of OID in income over the life of your debt security. More specifically, you can calculate the amount of OID that you would include in income by adding the daily portions of OID with respect to your discount debt security for each day during the taxable year or portion of the taxable year that you hold your discount debt security. You can determine the daily portion by allocating to each day in any “accrual period” a pro rata portion of the OID allocable to that accrual period. You may select an accrual period of any length with respect to your discount debt security and you may vary the length of each accrual period over the term of your discount debt security. However, no accrual period may be longer than one year and each scheduled payment of interest or principal on the discount debt security must occur on either the first or final day of an accrual period.
You can determine the amount of OID allocable to an accrual period by:
| • | multiplying your discount debt security’s adjusted issue price at the beginning of the accrual period by your debt security’s yield to maturity, and then |
| • | subtracting from this figure the sum of the payments of qualified stated interest on your debt security allocable to the accrual period. |
You must determine the discount debt security’s yield to maturity on the basis of compounding at the close of each accrual period and adjusting for the length of each accrual period. Further, you determine your discount debt security’s adjusted issue price at the beginning of any accrual period by:
| • | adding your discount debt security’s issue price and any accrued OID for each prior accrual period, and then |
| • | subtracting any payments previously made on your discount debt security that were not qualified stated interest payments. |
If an interval between payments of qualified stated interest on your discount debt security contains more than one accrual period, then, when you determine the amount of OID allocable to an accrual period, you would allocate the amount of qualified stated interest payable at the end of the interval, including any qualified stated interest that is payable on the first day of the accrual period immediately following the interval, pro rata to each accrual period in the interval based on their relative lengths. In addition, you would increase the adjusted issue price at the beginning of each accrual period in the interval by the amount of any qualified stated interest that has accrued prior to the first day of the accrual period but that is not payable until the end of the interval. You may compute the amount of OID allocable to an initial short accrual period by using any reasonable method if all other accrual periods, other than a final short accrual period, are of equal length.
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The amount of OID allocable to the final accrual period is equal to the difference between:
| • | the amount payable at the maturity of your debt security other than any payment of qualified stated interest, and |
| • | your debt security’s adjusted issue price as of the beginning of the final accrual period. |
Acquisition Premium. If you purchase your debt security for an amount that is less than or equal to the sum of all amounts other than qualified stated interest payable on your debt security after the purchase date but is greater than the amount of your debt security’s adjusted issue price, as determined above under “—General”, the excess is acquisition premium. If you do not make the election described below under “—Election to Treat All Interest as Original Issue Discount”, then you must reduce the daily portions of OID by a fraction equal to:
| • | the excess of your adjusted basis in the debt security immediately after purchase over the adjusted issue price of the debt security |
divided by:
| • | the excess of the sum of all amounts payable, other than qualified stated interest, on the debt security after the purchase date over the debt security’s adjusted issue price. |
Pre-Issuance Accrued Interest. An election may be made to decrease the issue price of your debt security by the amount of pre-issuance accrued interest if:
| • | a portion of the initial purchase price of your debt security is attributable to pre-issuance accrued interest; |
| • | the first stated interest payment on your debt security is to be made within one year of your debt security’s issue date; and |
| • | the payment would equal or exceed the amount of pre-issuance accrued interest. |
If this election is made, a portion of the first stated interest payment would be treated as a return of the excluded pre-issuance accrued interest and not as an amount payable on your debt security.
Debt Securities Subject to Contingencies Including Optional Redemption. Your debt security is subject to a contingency if it provides for an alternative payment schedule or schedules applicable upon the occurrence of a contingency or contingencies, other than a remote or incidental contingency, whether such contingency relates to payments of interest or of principal. In such a case, you would determine the yield and maturity of your debt security by assuming that the payments would be made according to the payment schedule most likely to occur if:
| • | the timing and amounts of the payments that comprise each payment schedule are known as of the issue date; and |
| • | one of such schedules is significantly more likely than not to occur. |
If there is no single payment schedule that is significantly more likely than not to occur, other than because of a mandatory sinking fund, you would include income on your debt security in accordance with the general rules that govern contingent payment obligations. These rules will be discussed in the applicable prospectus supplement.
Notwithstanding the general rules for determining yield and maturity, if your debt security is subject to contingencies, and either you or we have an unconditional option or options that, if exercised, would require payments to be made on the debt security under an alternative payment schedule or schedules, then:
| • | in the case of an option or options that we may exercise, we would be deemed to exercise or not exercise an option or combination of options in the manner that minimizes the yield on your debt security; and |
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| • | in the case of an option or options that you may exercise, you would be deemed to exercise or not exercise an option or combination of options in the manner that maximizes the yield on your debt security. |
If both you and we hold options described in the preceding sentence, those rules would apply to each option in the order in which they may be exercised. You would determine the yield on your debt security for the purposes of those calculations by using any date on which your debt security may be redeemed or repurchased as the maturity date and the amount payable on the date that you chose in accordance with the terms of your debt security as the principal amount payable at maturity.
If a contingency, including the exercise of an option, actually occurs or does not occur contrary to an assumption made according to the above rules then, except to the extent that a portion of your debt security is repaid as a result of this change in circumstances and solely to determine the amount and accrual of OID, you would redetermine the yield and maturity of your debt security by treating your debt security as having been retired and reissued on the date of the change in circumstances for an amount equal to your debt security’s adjusted issue price on that date.
Election to Treat All Interest as Original Issue Discount. You may elect to include in gross income all interest that accrues on your debt security using the constant-yield method described above under “—General”, with the modifications described below. For purposes of this election, interest will include stated interest, OID, de minimis original issue discount, market discount, de minimis market discount and unstated interest, as adjusted by any amortizable bond premium, described below under “—Debt Securities Purchased at a Premium” or acquisition premium.
If you make this election for your debt security, then, when you apply the constant-yield method:
| • | the issue price of your debt security would equal your cost, |
| • | the issue date of your debt security would be the date you acquired it, and |
| • | no payments on your debt security would be treated as payments of qualified stated interest. |
Generally, this election will apply only to the debt security for which you make it; however, if the debt security has amortizable bond premium, you would be deemed to have made an election to apply amortizable bond premium against interest for all debt instruments with amortizable bond premium, other than debt instruments the interest on which is excludible from gross income, that you hold as of the beginning of the taxable year to which the election applies or thereafter. Additionally, if you make this election for a market discount debt security, you would be treated as having made the election discussed below under “—Market Discount” to include market discount in income currently over the life of all debt instruments having market discount that you acquire on or after the first day of the first taxable year to which the election applies. You may not revoke any election to apply the constant-yield method to all interest on a debt security or the deemed elections with respect to amortizable bond premium or market discount debt securities without the consent of the IRS.
Variable Rate debt securities. Your debt security would be a variable rate debt security if:
| • | your debt security’s issue price does not exceed the total noncontingent principal payments by more than the lesser of: |
| 1. | .015 multiplied by the product of the total noncontingent principal payments and the number of complete years to maturity from the issue date, or |
| 2. | 15 percent of the total noncontingent principal payments; and |
| • | your debt security provides for stated interest, compounded or paid at least annually, only at: |
| 1. | one or more qualified floating rates, |
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| 2. | a single fixed rate and one or more qualified floating rates, |
| 3. | a single objective rate, or |
| 4. | a single fixed rate and a single objective rate that is a qualified inverse floating rate; and |
| • | the value of any variable rate on any date during the term of your debt security is set no earlier than three months prior to the first day on which that value is in effect and no later than one year following that first day. |
Your debt security would have a variable rate that is a qualified floating rate if:
| • | variations in the value of the rate can reasonably be expected to measure contemporaneous variations in the cost of newly borrowed funds in the currency in which your debt security is denominated; or |
| • | the rate is equal to such a rate either: |
| 1. | multiplied by a fixed multiple that is greater than 0.65 but not more than 1.35 or |
| 2. | multiplied by a fixed multiple greater than 0.65 but not more than 1.35, and then increased or decreased by a fixed rate. |
If your debt security provides for two or more qualified floating rates that are within 0.25 percentage points of each other on the issue date or can reasonably be expected to have approximately the same values throughout the term of the debt security, the qualified floating rates together constitute a single qualified floating rate.
Your debt security would not have a qualified floating rate, however, if the rate is subject to certain restrictions (including caps, floors, governors, or other similar restrictions) unless such restrictions are caps, floors or governors that are fixed throughout the term of the debt security or such restrictions are not reasonably expected to significantly affect the yield on the debt security.
Your debt security would have a variable rate that is a single objective rate if:
| • | the rate is not a qualified floating rate, and |
| • | the rate is determined using a single, fixed formula that is based on objective financial or economic information that is not within the control of or unique to the circumstances of the issuer or a related party. |
Your debt security would not have a variable rate that is an objective rate, however, if it is reasonably expected that the average value of the rate during the first half of your debt security’s term would be either significantly less than or significantly greater than the average value of the rate during the final half of your debt security’s term.
An objective rate as described above is a qualified inverse floating rate if:
| • | the rate is equal to a fixed rate minus a qualified floating rate and |
| • | the variations in the rate can reasonably be expected to inversely reflect contemporaneous variations in the cost of newly borrowed funds. |
Your debt security would also have a single qualified floating rate or an objective rate if interest on your debt security is stated at a fixed rate for an initial period of one year or less followed by either a qualified floating rate or an objective rate for a subsequent period, and either:
| • | the fixed rate and the qualified floating rate or objective rate have values on the issue date of the debt security that do not differ by more than 0.25 percentage points or |
| • | the value of the qualified floating rate or objective rate is intended to approximate the fixed rate. |
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In general, if your variable rate debt security provides for stated interest at a single qualified floating rate or objective rate, or one of those rates after a single fixed rate for an initial period, all stated interest on your debt security is qualified stated interest. In this case, the amount of OID, if any, is determined by using, in the case of a qualified floating rate or qualified inverse floating rate, the value as of the issue date of the qualified floating rate or qualified inverse floating rate, or, for any other objective rate, a fixed rate that reflects the yield reasonably expected for your debt security.
If your variable rate debt security does not provide for stated interest at a single qualified floating rate or a single objective rate, and also does not provide for interest payable at a fixed rate other than a single fixed rate for an initial period, you generally would determine the interest and OID accruals on your debt security by:
| • | determining a fixed rate substitute for each variable rate provided under your variable rate debt security, |
| • | constructing the equivalent fixed rate debt instrument, using the fixed rate substitute described above, |
| • | determining the amount of qualified stated interest and OID with respect to the equivalent fixed rate debt instrument, and |
| • | adjusting for actual variable rates during the applicable accrual period. |
When you determine the fixed rate substitute for each variable rate provided under the variable rate debt security, you generally will use the value of each variable rate as of the issue date or, for an objective rate that is not a qualified inverse floating rate, a rate that reflects the reasonably expected yield on your debt security.
If your variable rate debt security provides for stated interest either at one or more qualified floating rates or at a qualified inverse floating rate, and also provides for stated interest at a single fixed rate other than at a single fixed rate for an initial period, you generally would determine interest and OID accruals by using the method described in the previous paragraph. However, your variable rate debt security would be treated, for purposes of the first three steps of the determination, as if your debt security had provided for a qualified floating rate, or a qualified inverse floating rate, rather than the fixed rate. The qualified floating rate, or qualified inverse floating rate, that replaces the fixed rate must be such that the fair market value of your variable rate debt security as of the issue date approximates the fair market value of an otherwise identical debt instrument that provides for the qualified floating rate, or qualified inverse floating rate, rather than the fixed rate.
Short-Term Debt Securities. In general, if you are an individual or other cash basis United States holder of a short-term debt security, you are not required to accrue OID, as specially defined below for the purposes of this paragraph, for United States federal income tax purposes unless you elect to do so (although it is possible that you may be required to include any stated interest in income as you receive it). If you are an accrual basis taxpayer, a taxpayer in a special class, including, but not limited to, a regulated investment company, common trust fund, or a certain type of pass-through entity, or a cash basis taxpayer who so elects, you would be required to accrue OID on short-term debt securities either on a straight-line basis or under the constant-yield method, based on daily compounding. If you are not required and do not elect to include OID in income currently, any gain you realize on the sale or retirement of your short-term debt security would be ordinary income to the extent of the accrued OID, which would be determined on a straight-line basis unless you make an election to accrue the OID under the constant-yield method, through the date of sale or retirement. However, if you are not required and do not elect to accrue OID on your short-term debt securities, you would be required to defer deductions for interest on borrowings allocable to your short-term debt securities in an amount not exceeding the deferred income until the deferred income is realized.
When you determine the amount of OID subject to these rules, you must include all interest payments on your short-term debt security, including stated interest, in your short-term debt security’s stated redemption price at maturity.
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Foreign Currency Discount Debt Securities. If your discount debt security is denominated in, or determined by reference to, a foreign currency, you would determine OID for any accrual period on your discount debt security in the foreign currency and then translate the amount of OID into U.S. dollars in the same manner as stated interest accrued by an accrual basis United States holder, as described under “—Payments of Interest”. You may recognize ordinary income or loss when you receive an amount attributable to OID in connection with a payment of interest or the sale or retirement of your debt security.
Market Discount
You would be treated as if you purchased your debt security, other than a short-term debt security, at a market discount, and your debt security will be a market discount debt security if:
| • | you purchase your debt security for less than its issue price as determined above under “—Original Issue Discount—General”; and |
| • | the difference between the debt security’s stated redemption price at maturity or, in the case of a discount debt security, the debt security’s revised issue price, and the price you paid for your debt security is equal to or greater than 1⁄4 of 1 percent of your debt security’s stated redemption price at maturity multiplied by the number of complete years to the debt security’s maturity. To determine the revised issue price of your debt security for these purposes, you generally add any OID that has accrued on your debt security to its issue price. |
If your debt security’s stated redemption price at maturity or, in the case of a discount debt security, its “revised issue price”, does not exceed the price you paid for the debt security by 1⁄4 of 1 percent of the debt security’s stated redemption price at maturity multiplied by the number of complete years to the debt security’s maturity, the excess constitutes de minimis market discount, and the rules discussed below are not applicable to you.
You must treat any gain you recognize on the maturity or disposition of your market discount debt security as ordinary income to the extent of the accrued market discount on your debt security. Alternatively, you may elect to include market discount in income currently over the life of your debt security. If you make this election, it would apply to all debt instruments with market discount that you acquire on or after the first day of the first taxable year to which the election applies. You may not revoke this election without the consent of the IRS. If you own a market discount debt security and do not make this election, you would generally be required to defer deductions for interest on borrowings allocable to your debt security in an amount not exceeding the accrued market discount on your debt security until the maturity or disposition of your debt security.
If you own a market discount debt security, the market discount would accrue on a straight-line basis unless an election is made to accrue market discount using a constant-yield method. If you make this election, it would apply only to the debt security with respect to which it is made and you may not revoke it. You would, however, not include accrued market discount in income unless you elect to do so as described above.
Debt Securities Purchased at a Premium
If you purchase your debt security for an amount in excess of its principal amount (or, in the case of a discount debt security, in excess of the sum of all amounts payable on the debt security after the acquisition date (other than payments of qualified stated interest)), you may elect to treat the excess as amortizable bond premium. If you make this election, you would reduce the amount required to be included in your income each accrual period with respect to interest on your debt security by the amount of amortizable bond premium allocable to that accrual period, based on your debt security’s yield to maturity.
If the amortizable bond premium allocable to an accrual period exceeds your interest income from your debt security for such accrual period, such excess is first allowed as a deduction to the extent of interest included in your income in respect of the debt security in previous accrual periods and is then carried forward to your next
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accrual period. If the amortizable bond premium allocable and carried forward to the accrual period in which your debt security is sold, retired or otherwise disposed of exceeds your interest income for such accrual period, you would be allowed an ordinary deduction equal to such excess.
If your debt security is denominated in, or determined by reference to, a foreign currency, you would compute your amortizable bond premium in units of the foreign currency and your amortizable bond premium would reduce your interest income in units of the foreign currency. Gain or loss recognized that is attributable to changes in exchange rates between the time your amortized bond premium offsets interest income and the time of the acquisition of your debt security is generally taxable as ordinary income or loss.
If you make an election to amortize bond premium, it would apply to all debt instruments, other than debt instruments the interest on which is excludible from gross income, that you hold at the beginning of the first taxable year to which the election applies or that you thereafter acquire, and you may not revoke it without the consent of the IRS. See also “—Original Issue Discount—Election to Treat All Interest as Original Issue Discount”.
Purchase, Sale and Retirement of the Debt Securities
Your tax basis in your debt security will generally be the U.S. dollar cost, as defined below, of your debt security, adjusted by:
| • | adding any OID or market discount previously included in income with respect to your debt security, and then |
| • | subtracting any payments on your debt security that are not qualified stated interest payments and any amortizable bond premium to the extent that such premium either reduced interest on your debt security or gave rise to a deduction on your debt security. |
If you purchase your debt security with foreign currency, the U.S. dollar cost of your debt security would generally be the U.S. dollar value of the purchase price on the date of purchase. However, if you are a cash basis taxpayer, or an accrual basis taxpayer, if you so elect, and your debt security is traded on an established securities market, as defined in the applicable Treasury regulations, the U.S. dollar cost of your debt security would be the U.S. dollar value of the purchase price on the settlement date of your purchase.
You will generally recognize gain or loss on the sale or retirement of your debt security equal to the difference between the amount you realize on the sale or retirement, excluding any amounts attributable to accrued but unpaid interest (which will be treated as interest payments) and your tax basis in your debt security. If your debt security is sold or retired for an amount in foreign currency, the amount you realize would be the U.S. dollar value of such amount on the date the debt security is disposed of or retired, except that in the case of a debt security that is traded on an established securities market, as defined in the applicable Treasury regulations, a cash basis taxpayer, or an accrual basis taxpayer that so elects, would determine the amount realized based on the U.S. dollar value of the foreign currency on the settlement date of the sale.
You will recognize capital gain or loss when you sell or retire your debt security, except to the extent:
| • | described above under “—Original Issue Discount—Short-Term Debt Securities” or “—Market Discount”, or |
| • | attributable to changes in exchange rates as described below. |
Capital gain of a noncorporate United States holder is generally taxed at preferential rates where the property is held for more than one year.
You must treat any portion of the gain or loss that you recognize on the sale or retirement of a debt security as ordinary income or loss to the extent attributable to changes in exchange rates. However, you take exchange gain or loss into account only to the extent of the total gain or loss you realize on the transaction.
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Exchange of Amounts in Other Than U.S. Dollars
If you receive foreign currency as interest on your note or on the sale or retirement of your debt security, your tax basis in the foreign currency would equal its U.S. dollar value when the interest is received or at the time of the sale or retirement. If you purchase foreign currency, you generally would have a tax basis equal to the U.S. dollar value of the foreign currency on the date of your purchase. If you sell or dispose of a foreign currency, including if you use it to purchase debt security or exchange it for U.S. dollars, any gain or loss recognized generally would be ordinary income or loss.
Non-United States Holders
This subsection describes the tax consequences to non-United States holders of our debt securities. The discussion below does not address the tax consequences to a non-United States holder of an investment in debt security that references directly or indirectly the performance of United States equities. The tax treatment of any such debt securities will be discussed in the applicable prospectus supplement.
If you are a United States holder, this section does not apply to you.
Interest on the Debt Securities
Under United States federal income and estate tax law, and subject to the discussion of backup withholding below, if you are a non-United States holder of a debt security, interest paid to you on a debt security issued by Equinor is exempt from United States federal income tax, including withholding tax, whether or not you are engaged in a trade or business in the United States, unless:
| • | you are an insurance company carrying on a United States insurance business to which the interest is attributable, within the meaning of the Code, or |
| • | you both |
| • | have an office or other fixed place of business in the United States to which the interest is attributable and |
| • | derive the interest in the active conduct of a banking, financing or similar business within the United States, or are a corporation with a principal business of trading in stocks and securities for its own account. |
In the case of a debt security issued by Equinor Capital, this discussion assumes that the debt security is not subject to the rules of Section 871(h)(4)(A) of the Internal Revenue Code, relating to interest payments that are determined by reference to the income, profits, changes in the value of property or other attributes of the debtor or a related party. Subject to the discussions of FATCA withholding and backup withholding below, interest (including OID) on a debt security issued by Equinor Capital that is not effectively connected with your conduct of a trade or business in the United States will generally be exempt from United States federal income and withholding tax under the “portfolio interest exemption,” provided that (i) you do not, actually or constructively, own stock possessing 10% or more of the total voting power of all classes of stock of Equinor US Holding Inc. (Equinor Capital’s direct owner) entitled to vote, (ii) you are not a controlled foreign corporation that is related to Equinor US Holding Inc., actually or constructively, and (iii) either (a) you provide to the applicable withholding agent an IRS Form W-8BEN or W-8BEN-E (or other applicable form), signed under penalties of perjury, that includes your name and address and that certifies your non-United States status in compliance with applicable law and regulations, or (b) a securities clearing organization, bank or other financial institution that holds customers’ securities in the ordinary course of its trade or business provides a statement to the applicable withholding agent under penalties of perjury on which it certifies that an applicable IRS Form W-8BEN or W-8BEN-E (or other applicable form) has been received by it from you or a qualifying intermediary and furnishes a copy to the applicable withholding agent. This certification requirement may be satisfied with other
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documentary evidence in the case of a debt security held in an offshore account or through certain foreign intermediaries. The applicable withholding agent for purposes of the certification requirement described above is generally the last U.S. payor (or a non-U.S. payor that is a qualified intermediary or a U.S. branch of a foreign person) in the chain of payment before payment to you.
If you cannot satisfy the requirements of the portfolio interest exemption described above, then payments of interest (including OID) on debt securities issued by Equinor Capital made to you generally will be subject to United States federal withholding tax at the rate of 30%, unless either (i) you provide the applicable withholding agent with a properly executed IRS Form W-8BEN or W-8BEN-E establishing an exemption from or reduction of the withholding tax under the benefit of an applicable income tax treaty or (ii) the interest is effectively connected with your conduct of a trade or business in the United States and you provide an appropriate statement to that effect on a properly completed and duly executed IRS Form W-8ECI.
If you engaged in a trade or business in the United States and interest (including OID) on a debt security is effectively connected with the conduct of that trade or business, you will be subject to United States federal income tax on such interest on a net income basis in generally the same manner as a United States holder, unless an applicable income tax treaty provides otherwise. If you are a non-United States holder that is treated as a foreign corporation for United States federal income tax purposes, you may also be subject to a branch profits tax at a 30% rate (or lower applicable treaty rate) on your effectively connected earnings and profits, subject to adjustments.
Purchase, Sale, Retirement and Other Disposition of the Debt Securities
Subject to the discussion of backup withholding below, you generally would not be subject to United States federal income tax on gain realized on the sale, exchange or retirement of a debt security (other than any amount representing accrued but unpaid interest or OID on the debt security, which will be treated as interest and will generally be subject to the rules discussed above under “Interest on the Debt Securities”) unless:
| • | the gain is effectively connected with your conduct of a trade or business in the United States or |
| • | you are an individual, you are present in the United States for 183 or more days during the taxable year in which the gain is realized and certain other conditions exist. |
If you are described in the second bullet point above, you generally will be subject to United States federal income tax at a flat rate of 30% (unless a lower treaty rate applies) on your gain from the disposition, which may be offset by certain United States-source capital losses. If you are described in the first bullet point above, you will be subject to United States federal income tax on such gain on a net income basis in generally the same manner as a United States holder, unless an applicable income tax treaty provides otherwise. If you are a non-United States holder that is treated as a foreign corporation for United States federal income tax purposes, you may also be subject to a branch profits tax at a 30% rate (or lower applicable treaty rate) on your effectively connected earnings and profits, subject to adjustments.
Estate Tax
For purposes of the United States federal estate tax, debt securities issued by Equinor will be treated as situated outside the United States and will not be includible in the gross estate of a holder who is neither a citizen nor a resident of the United States at the time of death.
A debt security issued by Equinor Capital held by an individual who at death is not a citizen or resident of the United States would not be includible in the individual’s gross estate for United States federal estate tax purposes if:
| • | the decedent did not actually or constructively own 10% or more of the total combined voting power of all classes of stock of Equinor US Holding Inc. entitled to vote at the time of death and |
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| • | the income on the debt security would not have been effectively connected with a United States trade or business of the decedent at the same time. |
Treasury Regulations Requiring Disclosure of Reportable Transactions
Treasury regulations require United States taxpayers to report certain transactions that give rise to a loss in excess of certain thresholds (a “Reportable Transaction”). Under these regulations, if the debt securities are denominated in a foreign currency, a United States holder (or a non-United States holder that holds the debt securities in connection with a U.S. trade or business) that recognizes a loss with respect to the debt securities that is characterized as an ordinary loss due to changes in currency exchange rates (under any of the rules discussed above) would be required to report the loss on IRS Form 8886 (Reportable Transaction Statement) if the loss exceeds the thresholds set forth in the regulations. For individuals and trusts, this loss threshold is $50,000 in any single taxable year. For other types of taxpayers and other types of losses, the thresholds are higher. You should consult with your tax advisor regarding any tax filing and reporting obligations that may apply in connection with acquiring, owning and disposing of debt securities.
Foreign Account Tax Compliance Withholding
Certain non-U.S. financial institutions must comply with information reporting requirements or certification requirements in respect of their direct and indirect United States shareholders and/or United States accountholders to avoid becoming subject to withholding on certain payments. Although we are continuing to monitor our status under FATCA, we are currently registered as a foreign financial institution for these purposes. We and other non-U.S. financial institutions may accordingly be required to report information to the IRS regarding the holders of debt securities and to withhold on a portion of payments under the debt securities issued by Equinor to certain holders that fail to comply with the relevant information reporting requirements (or hold debt securities directly or indirectly through certain non-compliant intermediaries). However, under proposed Treasury regulations, such withholding will not apply to payments made before the date that is two years after the date on which final regulations defining the term “foreign passthru payment” are enacted. Moreover, such withholding would only apply to debt securities issued by Equinor at least six months after the date on which final defining the term “foreign passthru payment” are enacted. Holders are urged to consult their own tax advisors and any banks or brokers through which they will hold debt securities as to the consequences (if any) of these rules to them.
In the case of debt securities issued by Equinor Capital, a 30% withholding tax may be imposed under FATCA on certain payments to you or to certain foreign financial institutions, investment funds and other non-U.S. persons receiving payments on your behalf if you or such persons fail to comply with certain information reporting requirements. Payments of interest that you receive in respect of the debt securities could be affected by this withholding if you are subject to the FATCA information reporting requirements and fail to comply with them or if you hold debt securities through a non-U.S. person (e.g., a foreign bank or broker) that fails to comply with these requirements (even if payments to you would not otherwise have been subject to FATCA withholding). You should consult your own tax advisors regarding the relevant U.S. law and other official guidance on FATCA withholding.
We will not pay any additional amounts in respect of FATCA withholding, so if this withholding applies, you will receive significantly less than the amount that you would have otherwise received with respect to your debt securities. Depending on your circumstances, you may be entitled to a refund or credit in respect of some or all of this withholding. However, even if you are entitled to have any such withholding refunded, the required procedures could be cumbersome and significantly delay the holder’s receipt of any amounts withheld.
Backup Withholding and Information Reporting
If you are a noncorporate United States holder of a debt security information reporting requirements, on Internal Revenue Service Form 1099, generally will apply to payments of principal and interest on a debt security
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within the United States. Information reporting may also apply in respect of any OID that accrues on a debt security. In the case of a debt security issued by Equinor Capital, the applicable withholding agent will generally be required to report to the IRS all payments of principal, any premium and interest on your debt security, and the accrual of OID on a discount debt security (unless you are an exempt recipient).
In addition, the applicable withholding agent will be required to report to the IRS any payment of proceeds of the sale of your debt security before maturity within the United States (unless you are an exempt recipient). Additionally, backup withholding would apply to any such payments, including payments of OID, if you fail to provide an accurate taxpayer identification number, or (in the case of interest payments) you are notified by the IRS that you have failed to report all interest and dividends required to be shown on your federal income tax returns.
In general, payment of the proceeds from the sale of debt securities effected at a foreign office of a broker will not be subject to information reporting or backup withholding. However, a sale effected at a foreign office of a broker could be subject to information reporting in the same manner as a sale within the United States (and in certain cases may be subject to backup withholding as well) if (i) the broker has certain connections to the United States, (ii) the proceeds or confirmation are sent to the United States or (iii) the sale has certain other specified connections with the United States.
You generally may obtain a refund of any amounts withheld under the backup withholding rules that exceed your income tax liability by filing a refund claim with the IRS.
United States Taxation of Ordinary Shares and ADSs
This section is based in part upon the representations of the Depositary and the assumption that each obligation in the Deposit Agreement and any related agreement will be performed in accordance with its terms. In general, and taking into account this assumption, for United States federal income tax purposes, if you hold American Depositary Receipts (“ADRs”) evidencing ADSs, you will be treated as the owner of the ordinary shares represented by those ADRs. Exchanges of ordinary shares for ADRs, and ADRs for ordinary shares, generally will not be subject to United States federal income tax.
The tax treatment of your ordinary shares or ADSs will depend in part on whether or not we are classified as a passive foreign investment company, or PFIC, for United States federal income tax purposes. Except as discussed below under “—PFIC Rules”, this discussion assumes that we are not classified as a PFIC for United States federal income tax purposes.
Dividends
United States Holders
Under the United States federal income tax laws, the gross amount of any distribution paid by Equinor out of its current or accumulated earnings and profits (as determined for United States federal income tax purposes) is subject to United States federal income taxation. If you are a noncorporate United States holder, dividends that constitute qualified dividend income will be treated as a dividend that is taxable to you at the preferential rates applicable to long-term capital gains provided that you hold the ordinary shares or ADSs for more than 60 days during the 121-day period beginning 60 days before the ex-dividend date and meet other holding period requirements. Dividends we pay with respect to the ordinary shares or ADSs generally will be qualified dividend income, provided that, in the year that you receive the dividend, Equinor is eligible for the benefits under the Treaty. We believe that Equinor is currently eligible for the benefits of the Treaty and we therefore expect that dividends on the ordinary shares or ADS will be qualified dividend income but there can be no assurance that we will continue to be eligible for the benefits of the Treaty.
You must include any Norwegian tax withheld from the dividend payment in this gross amount even though you do not in fact receive it. The dividend is taxable to you when you, in the case of ordinary shares, or the
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Depositary, in the case of ADSs, receive the dividend, actually or constructively. The dividend will not be eligible for the dividends-received deduction generally allowed to United States corporations in respect of dividends received from other United States corporations. The amount of the dividend distribution that you must include in your income as a United States holder will be the U.S. dollar value of the Norwegian kroner payments made, determined at the spot Norwegian kroner/U.S. dollar rate on the date the dividend distribution is includible in your income, regardless of whether the payment is in fact converted into U.S. dollars. Generally, any gain or loss resulting from currency exchange fluctuations during the period from the date you include the dividend payment in income to the date you convert the payment into U.S. dollars will be treated as ordinary income or loss and will not be eligible for the special tax rate applicable to qualified dividend income. The gain or loss generally will be income or loss from sources within the United States for foreign tax credit limitation purposes. Distributions in excess of current and accumulated earnings and profits, as determined for United States federal income tax purposes, will be treated as a non-taxable return of capital to the extent of your basis in the ordinary shares or ADSs and thereafter as capital gain. However, we do not expect to calculate earnings and profits in accordance with United States federal income tax principles. Accordingly, you should expect to generally treat distributions we make as dividends.
Subject to certain limitations and the following sentence, Norwegian tax withheld in accordance with the Treaty and paid over to Norway will be creditable or deductible against your United States federal income tax liability. However, under recently finalized Treasury regulations, it is possible that taxes may not be creditable unless you are eligible for and elect to apply the benefits of the Treaty. Special rules apply in determining the foreign tax credit limitation with respect to dividends that are subject to the preferential tax rates. To the extent a refund of the tax withheld is available to you under Norwegian law, the amount of tax withheld that is refundable will not be eligible for credit against your United States federal income tax liability.
Dividends will generally be income from sources outside the United States and will generally be “passive” income for purposes of computing the foreign tax credit allowable to you
Non-United States Holders
If you are a non-United States holder, dividends paid to you in respect of ordinary shares or ADSs will not be subject to United States federal income tax unless the dividends are “effectively connected” with your conduct of a trade or business within the United States, and the dividends are attributable to a permanent establishment that you maintain in the United States if that is required by an applicable income tax treaty as a condition for subjecting you to United States taxation on a net income basis. In such cases you generally will be taxed in the same manner as a United States holder. If you are a corporate non-United States holder, “effectively connected” dividends may, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate or at a lower rate if you are eligible for the benefits of an income tax treaty that provides for a lower rate.
Capital Gains
United States Holders
If you are a United States holder and you sell or otherwise dispose of your ordinary shares or ADSs, you will recognize capital gain or loss for United States federal income tax purposes equal to the difference between the U.S. dollar value of the amount that you realize and your tax basis, determined in U.S. dollars, in your ordinary shares or ADSs. Capital gain of a non-corporate United States holder is generally taxed at preferential rates where the property is held for more than one year. The gain or loss will generally be income or loss from sources within the United States for foreign tax credit limitation purposes.
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Non-United States Holders
If you are a non-United States holder, you will not be subject to United States federal income tax on gain recognized on the sale or other disposition of your ordinary shares or ADSs unless:
| • | the gain is “effectively connected” with your conduct of a trade or business in the United States, and the gain is attributable to a permanent establishment that you maintain in the United States if that is required by an applicable income tax treaty as a condition for subjecting you to United States taxation on a net income basis, or |
| • | you are an individual, you are present in the United States for 183 or more days in the taxable year of the sale and certain other conditions exist. |
If you are a corporate non-United States holder, “effectively connected” gains that you recognize may also, under certain circumstances, be subject to an additional “branch profits tax” at a 30% rate or at a lower rate if you are eligible for the benefits of an income tax treaty that provides for a lower rate.
PFIC Rules
We believe that ordinary shares and ADSs should not be treated as stock of a PFIC for United States federal income tax purposes, but this conclusion is a factual determination that is made annually and thus may be subject to change. If we were to be treated as a PFIC, gain realized on the sale or other disposition of your ordinary shares or ADSs would in general not be treated as capital gain. Instead, unless you elect to be taxed annually on a mark-to-market basis with respect to your ordinary shares or ADSs, you would be treated as if you had realized such gain and certain “excess distributions” ratably over your holding period for the ordinary shares or ADSs and would generally be taxed at the highest tax rate in effect for each such year to which the gain was allocated, together with an interest charge in respect of the tax attributable to each such year. With certain exceptions, your ordinary shares or ADSs will be treated as stock in a PFIC if we were a PFIC at any time during your holding period in your ordinary shares or ADSs. Dividends that you receive from us will not be eligible for the special tax rates applicable to qualified dividend income if we are a PFIC (or are treated as a PFIC with respect to you) either in the taxable year of the distribution or the preceding taxable year, but instead will be taxable at rates applicable to ordinary income.
Foreign Account Tax Compliance Withholding
A 30% withholding tax will be imposed on certain payments to certain non-U.S. financial institutions that fail to comply with information reporting requirements or certification requirements in respect of their direct and indirect United States shareholders and/or United States accountholders. Although we are continuing to monitor our status under FATCA, we are currently registered as a foreign financial institution for these purposes. To avoid becoming subject to the 30% withholding tax on payments to them, we and other non-U.S. financial institutions may be required to report information to the IRS regarding the holders of ordinary shares or ADSs and to withhold on a portion of payments under the ordinary shares or ADSs to certain holders that fail to comply with the relevant information reporting requirements (or hold ordinary shares or ADSs directly or indirectly through certain non-compliant intermediaries). However, under proposed Treasury regulations, such withholding will not apply to payments made before the date that is two years after the date on which final regulations defining the term “foreign passthru payment” are enacted. The rules for the implementation of this legislation have not yet been fully finalized, so it is impossible to determine at this time what impact, if any, this legislation will have on holders of the ordinary shares and ADSs.
Backup Withholding and Information Reporting
If you are a noncorporate United States holder, information reporting requirements, on IRS Form 1099, generally will apply to dividend payments or other taxable distributions made to you within the United States, and the payment of proceeds to you from the sale of ordinary shares or ADSs effected at a United States office of a broker.
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Additionally, backup withholding may apply to such payments if you fail to comply with applicable certification requirements or (in the case of dividend payments) are notified by the IRS that you have failed to report all interest and dividends required to be shown on your federal income tax returns.
If you are a non-United States holder, you are generally exempt from backup withholding and information reporting requirements with respect to dividend payments made to you outside the United States by us or another non-United States payor. You are also generally exempt from backup withholding and information reporting requirements in respect of dividend payments made within the United States and the payment of the proceeds from the sale of ordinary shares or ADSs effected at a United States office of a broker, as long as either (i) the payor or broker does not have actual knowledge or reason to know that you are a United States person and you have furnished a valid IRS Form W-8 or other documentation upon which the payor or broker may rely to treat the payments as made to a non-United States person, or (ii) you otherwise establish an exemption.
Payment of the proceeds from the sale of ordinary shares or ADSs effected at a foreign office of a broker generally will not be subject to information reporting or backup withholding. However, a sale effected at a foreign office of a broker could be subject to information reporting in the same manner as a sale within the United States (and in certain cases may be subject to backup withholding as well) if (i) the broker has certain connections to the United States, (ii) the proceeds or confirmation are sent to the United States or (iii) the sale has certain other specified connections with the United States.
You generally may obtain a refund of any amounts withheld under the backup withholding rules that exceed your income tax liability by filing a refund claim with the IRS.
Norwegian Taxation of Debt Securities and Payments under the Guarantees
The following summary is based on current Norwegian law and practice, which is subject to changes that could prospectively or retrospectively modify or adversely affect the stated tax consequence. Accordingly this summary does not and is not intended to, provide a complete description of all tax regulations that might be relevant. Prospective purchasers of securities should consult their own professional advisors as to their respective tax positions.
Under Norwegian law, payments of interest by Equinor ASA to a Norwegian resident for tax purposes under the debt securities may be subject to Norwegian ordinary taxation. As of the date hereof, the ordinary tax rate is 22 per cent. Gains realized on the debt securities (including currency gains) are taxable as ordinary income, and losses (including currency losses) are deductible at the same rate. Costs incurred in connection with the acquisition and realization of the debt securities may be deducted in the year of realization.
Payments made by Equinor ASA under the debt securities to persons who are not Norwegian residents for tax purposes, referred to herein as non-residents, whether in respect of principal or interest on the debt securities, are generally not subject to any tax imposed by Norway or any political subdivision thereof or therein except for payments attributable to such person’s branch, permanent establishment, or operation that may be subject to tax imposed by Norway or any political subdivision thereof or therein. In addition, no income, capital gains, transfer or similar tax is currently imposed by Norway or any political subdivision thereof or therein on a sale, redemption or other disposition of debt securities, except for payments attributable to a non-resident’s branch, permanent establishment, or operation that may be subject to tax imposed by Norway or any political subdivision thereof or therein.
Under Norwegian law, payments of interest by Equinor Energy to a Norwegian resident for tax purposes under the guarantee may be subject to Norwegian tax, at a rate of 22 percent. Payments by Equinor Energy under the guarantee to persons who are not Norwegian residents for tax purposes are generally not subject to any tax imposed by Norway or any political subdivision thereof or therein except for payments attributable to such person’s branch, permanent establishment or operations in Norway that may be subject to tax imposed by Norway or any political subdivision thereof or therein.
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Norway does not impose withholding taxes on the payment of interest to persons who are not Norwegian residents for tax purposes, with the exception of interest payments to foreign related entities resident in low-tax jurisdictions: As of 1 July 2021, a withholding tax of 15 percent applies to interest payments and certain royalty payments made by a Norwegian resident company to foreign related entities resident in low tax jurisdictions. The withholding tax on interest payments is not applicable to creditors who are not related parties (that is, where there is direct or indirect ownership or control of at least 50 percent) resident for tax purposes in a low tax jurisdiction. This means that the withholding tax on interest payments does not apply to independent banks or other finance institutions or on bonds held by unrelated parties.
Norwegian Taxation of Ordinary Shares and ADSs
The following summary is based on current Norwegian law and practice, which is subject to changes that could prospectively or retrospectively modify or adversely affect the stated tax consequence. The outline does not and is not intended to provide a complete description of all tax regulations that might be relevant. Prospective purchasers of shares and American Depositary Shares (ADS) should consult their own professional advisors as to their respective tax positions. The term “shareholder” refers to both holders of shares and holders of ADSs, unless otherwise explicitly stated.
Taxation of Dividends—Shareholders Resident in Norway
Corporate shareholders (i.e. limited liability companies and similar entities) resident in Norway for tax purposes generally benefit from the Norwegian participation exemption method on dividends received from Norwegian companies. The basis for taxation under the participation exemption method is 3 percent of the dividends received, which is subject to the standard income tax rate. The standard income tax rate is 22 percent for the income year 2023 (though 25 percent for certain financial institutions), which results in an effective tax rate of 0.66 percent (22 percent x 0.03). Repayment of paid-in capital for tax purposes on a share will be tax-exempt.
In December 2022, a tax expert committee (the Torvik committee) appointed by the Norwegian Government, proposed to extend the scope of the 3 percent dividend income inclusion rule under the participation exemption method to also cover capital gains, as well as to increase of the overall rate to 5 percent. The report was issued for public consultation with comments to be provided by 15 April 2023.
Individual shareholders resident in Norway for tax purposes are subject to the standard income tax rate for dividend income exceeding a basic tax free allowance (the so-called Norwegian shareholder’s model). However, in the income year 2023 dividend income exceeding the basic tax free allowance is grossed up with a factor of 1.72 before taken to taxation, resulting in an effective tax rate of 37.84 percent (22 percent x 1.72). The tax free allowance is computed for each individual share or ADS on the basis of the cost price of that share or ADS multiplied by a risk-free interest rate. The risk-free interest rate will be determined every income year. Any part of the calculated allowance for one year that exceeds the dividend distributed for the share or ADS (“unused allowance”) may be carried forward and set off against future dividends received for (or gains upon the realization of, see below) the same share or ADS. Any unused allowance will also be added to the basis for computation of the allowance for the same share or ADS the following year. The allowance is calculated for each calendar year, and is allocated solely to the individual shareholder holding the share or ADS at the expiration of the relevant calendar year. Repayment of paid-in capital for tax purposes on a share will be tax-exempt. Individual shareholders may hold the shares through a Norwegian share saving account (Nw.: aksjesparekonto). Dividends received on shares held through a share saving account will not be taxed with immediate effect. Instead, withdrawal of funds from the share saving account exceeding the paid in deposit will be regarded as taxable income. For further information on a share saving account, the individual shareholder should consult their own professional advisor.
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Taxation of Dividends—Non-Resident Shareholders
Non-resident shareholders are as a rule subject to withholding tax at a rate of 25 percent on dividends distributed by Norwegian companies, with certain significant exceptions and modifications as described below. Repayment of paid-in capital for tax purposes on a share will be tax-exempt.
Corporate shareholders carrying on business activities in Norway, and whose shares or ADSs are effectively connected with such activities are not subject to withholding tax. For such shareholders, 3 percent of the received dividends are subject to the standard income tax rate.
Corporate shareholders resident in the EEA area for tax purposes are under the Norwegian participation exemption method exempt from withholding tax, provided that they can document that they are the beneficial owner of the shares, and that they are genuinely established and carry on genuine economic business activity within the EEA area. It is also a condition that Norway is entitled to receive information from the state of residence pursuant to a tax treaty or other international treaty. If no such treaty exists with the state of residence, the shareholder may instead present confirmation issued by the tax authorities of the state of residence verifying the documentation.
Tax treaties between Norway and other countries often reduce the Norwegian withholding tax rate on dividends paid to residents of such other countries, who are the beneficial owners of the shares on which the dividends are paid. Typically, tax treaties reduce the withholding tax rate to 15 percent (and often lower if the shareholder owns a qualifying percentage of the shares of the distributing company). The withholding tax rate in the tax treaty between the United States and Norway, as of the date hereof, is 15 percent in most cases.
Individual shareholders resident in the EEA for tax purposes may also claim a reduced withholding tax rate if the withholding tax exceeds the tax that would have been levied on individual shareholders resident in Norway under the Norwegian shareholder’s model. However, a refund under an applicable tax treaty will normally be more favorable than a refund based on the shareholder’s model. Note that individual shareholders resident in the EEA may also hold shares through a share saving account, cf. above for individual shareholders resident in Norway.
Procedures for non-resident shareholders to obtain reduced withholding tax. A non-resident shareholder that is entitled to a reduced Norwegian withholding tax rate may either (Procedure 1) request that the dividends are distributed with a reduced withholding tax rate applied by the distributing company, or (Procedure 2) request a refund from the Norwegian tax authorities of any excess withholding tax levied by the distributing company. Please note, however, that only Procedure 2 is available for EEA resident individual shareholders that claim reduced withholding tax based on the Norwegian shareholder’s model.
Under Procedure 1 (i.e. request for reduced withholding tax rate to be applied by the distributing company), the shareholder must provide satisfactory documentation to its account operator or custodian (as applicable), which may then place the relevant shares on an account that is registered with a reduced withholding tax rate in the Norwegian central securities depository (provided that the account operator/custodian is authorized to operate such accounts). With effect from January 1, 2019, specific documentation requirements must be satisfied by the shareholder in order to benefit from such treatment. More information can be found on the website of the Norwegian tax authorities: https://www.skatteetaten.no/en/business-and-organisation/start-and-run/rutiner-regnskap-og-kassasystem/lonn-lan-og-utbytte/dividends-from-norwegian-companies-to-foreign-shareholders—documentation-requirements-for-reduced-withholding-tax-rate/.
For holders of shares and ADSs deposited with JPMorgan Chase Bank N.A. (JPMorgan), documentation establishing that the holder is eligible for the benefits under a tax treaty with Norway, may be provided to JPMorgan. JPMorgan has been granted permission by the Norwegian tax authorities to receive dividends from us for redistribution to a beneficial owner of shares and ADSs at the applicable treaty withholding rate.
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Under Procedure 2 (i.e. request for refund of excess withholding tax from the tax authorities), satisfactory documentation must be attached to the withholding tax refund request to be submitted to the tax authorities. More information can be found on the website of the Norwegian tax authorities: https://www.skatteetaten.no/en/person/taxes/get-the-taxes-right/shares-and-securities/about-shares-and-securities/ refund-of-withholding-tax-on-dividends/ . The deadline for submitting a refund request is five years calculated from end of the income year when dividends were paid.
Wealth, Inheritance and Gift Tax
Wealth Tax. The shares or ADSs are included in the basis for the computation of net wealth tax imposed on individuals resident in Norway for tax purposes. Norwegian limited companies and certain similar entities are not subject to wealth tax. The current marginal wealth tax rate is 1 percent on net wealth exceeding 1.7 million kroner and 1.1 percent on net wealth exceeding 20 million kroner. Net wealth tax is levied on shares held by the taxpayer on 31. December in the relevant income year. For purposes of determining the wealth tax, Norway allows a valuation discount for certain equity fund holdings and assets. As of 2023, the assessment value of listed shares (including ADSs) is 80 percent of the listed value of such shares or ADSs on January 1 in the assessment year, i.e. on January 1 in the year after the relevant income year. The value of corresponding debt must be reduced at the same rate for the purposes of calculating net taxable wealth.
Non-resident shareholders are not subject to wealth tax in Norway for shares and ADSs in Norwegian limited companies unless the shareholder is an individual and the shareholding is effectively connected with the individual’s business activities in Norway.
Inheritance Tax and Gift Tax. No inheritance or gift tax is imposed in Norway.
Taxation on the realization of shares and ADSs
Corporate shareholders resident in Norway for tax purposes are not subject to tax in Norway on gains derived from the sale, redemption or other disposal of shares or ADSs in Norwegian companies. Capital losses are not deductible.
Individual shareholders residing in Norway for tax purposes are subject to tax in Norway on the sale, redemption or other disposal of shares or ADSs. Gains or losses in connection with such realization are included in the calculation of the individual’s ordinary taxable income in the year of disposal, which is subject to the standard income tax rate of 22 percent for the income year 2023. However, in the income year 2023 the taxable gain or deductible loss is grossed up with a factor of 1.72 before being included in the ordinary taxable income, resulting in an effective tax rate of 37.84 percent (22 percent x 1.72). Specific rules may apply if the shares are held through a share saving account (deferral of taxation until withdrawal of funds from the share saving account).
The taxable gain or deductible loss (before gross up) is calculated as the sales price adjusted for transaction expenses minus the taxable basis. A shareholder’s tax basis is normally equal to the acquisition cost of the shares or ADSs. Any unused allowance pertaining to a share or ADS may be deducted from a taxable gain on the same share or ADS, but may not lead to or increase a deductible loss. Furthermore, any unused allowance pertaining to a share or ADS may not be set off against gains from the realization of other shares or ADSs.
If the shareholder disposes of shares or ADSs acquired at different times, the shares or ADSs that were first acquired will be deemed to be first sold when calculating the taxable gain or loss.
Non-resident shareholders are generally not subject to tax in Norway on capital gains, and losses are not deductible on the sale, redemption or other disposal of shares or ADSs in Norwegian companies, unless the shareholder carries on business activities in Norway and such shares or ADSs are or have been effectively connected with such activities.
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A corporate shareholder or an individual shareholder who ceases to be tax resident in Norway due to domestic law or tax treaty provisions may, in certain circumstances, become subject to Norwegian exit taxation on capital gains related to shares or ADSs.
Transfer Tax. No transfer tax is imposed in Norway in connection with the sale or purchase of shares or ADSs.
European Union Taxation Matters
If you reside in a Member State of the European Union, please consult your own legal or tax advisors regarding the consequences of the directive in your particular circumstances.
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We may sell the securities offered by this prospectus:
| • | through underwriters; |
| • | through dealers; |
| • | through agents; or |
| • | directly to one or more purchasers. |
The prospectus supplement relating to any offering will identify or describe:
| • | any underwriter, dealers or agents; |
| • | their compensation; |
| • | the net proceeds to us; |
| • | the purchase price of the securities; |
| • | the initial public offering price of the securities; and |
| • | any exchange on which the securities will be listed. |
Underwriters
If we use underwriters in the sale, we will enter into an underwriting agreement, and a prospectus supplement will set forth the names of the underwriters and the terms of the transaction. The underwriters will acquire securities for their own account and may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Unless we otherwise state in the applicable prospectus supplement, various conditions to the underwriters’ obligation to purchase securities apply, and the underwriters will be obligated to purchase all of the securities contemplated in an offering if they purchase any of such securities. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
We may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities covered by this prospectus including securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowing of stock, and may use securities received from Equinor in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or in a post-effective amendment). We may also sell ordinary shares short using this prospectus and deliver ordinary shares covered by this prospectus to close out such short positions, or loan or pledge ordinary shares to financial institutions that in turn may sell the ordinary shares using this prospectus. We may pledge or grant a security interest in some or all of the ordinary shares covered by this prospectus to support a derivative or hedging position or other obligation and, if Equinor defaults in the performance of its obligations, the pledgees or secured parties may offer and sell the ordinary shares from time to time pursuant to this prospectus.
One or more firms, referred to as “remarketing firms” may also offer or sell the securities, if the prospectus supplement so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as agents for us. These remarketing firms will offer or sell the securities in accordance with a redemption or repayment pursuant to the terms of the securities. The prospectus supplement will identify any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation.
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If the prospectus supplement so indicates, we may authorize agents and underwriters or dealers to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in the prospectus supplement. These contracts will be subject to only those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of such offers.
Each series of debt securities offered will be a new issue of securities and will have no established trading market. The debt securities offered may or may not be listed on a national securities exchange. We cannot be sure as to the liquidity of or the existence of trading markets for any debt securities offered.
In connection with any offering, certain persons participating in the offering, such as the underwriters, if any, may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by such persons of a greater number of securities than they are required to purchase in the offering. Stabilizing transactions consist of certain bids or purchases made for the purpose of preventing or retarding a decline in the market price of the securities while the offering is in progress.
The underwriters, if any, in any offering also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the representatives have repurchased securities sold by or for the account of such underwriter in stabilizing or short covering transactions.
These activities by such persons participating in the offering, as well as other purchases by such persons for their own accounts, may stabilize, maintain or otherwise affect the market prices of the securities. As a result, the prices of the securities may be higher than the prices that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by such persons participating in the offering at any time. These transactions may be effected in the over-the-counter market or otherwise.
Dealers
If we use dealers in the sale, unless we otherwise indicate in the prospectus supplement, we will sell securities to the dealers as principals. The dealers may then resell the securities to the public at varying prices that the dealers may determine at the time of resale.
Agents and Direct Sales
We may sell securities directly or through agents that we designate. The prospectus supplement names any agent involved in the offering and sale and states any commissions we will pay to that agent. Unless we indicate otherwise in the prospectus supplement, any agent is acting on a best efforts basis for the period of its appointment.
Institutional Investors
If we indicate in the prospectus supplement, we will authorize underwriters, dealers or agents to solicit offers from various institutional investors to purchase securities. In this case, payment and delivery will be made on a future date that the prospectus supplement specifies. The underwriters, dealers or agents may impose limitations on the minimum amount that the institutional investor can purchase. They may also impose limitations on the portion of the aggregate amount of the securities that they may sell. These institutional investors include:
| • | commercial and savings banks; |
| • | insurance companies; |
| • | pension funds; |
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| • | investment companies; |
| • | educational and charitable institutions; and |
| • | other similar institutions as we may approve. |
The obligations of any of these purchasers pursuant to delayed delivery and payment arrangements will not be subject to any conditions. However, one exception applies. An institution’s purchase of the particular securities cannot at the time of delivery be prohibited under the laws of any jurisdiction that governs:
| • | the validity of the arrangements; or |
| • | the performance by us or the institutional investor. |
Indemnification
Agreements that we have entered into or may enter into with underwriters, dealers, agents or remarketing firms may entitle them to indemnification by us against various civil liabilities. These include liabilities under the Securities Act of 1933, as amended (the “Securities Act”). The agreements may also entitle them to contribution for payments which they may be required to make as a result of these liabilities. Underwriters, dealers, agents or remarketing firms may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled under agreements that may be entered into with Equinor to indemnification by Equinor against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for Equinor in the ordinary course of business.
Market Making
In the event that we do not list securities of any series on a U.S. national securities exchange, various broker-dealers may make a market in the securities, but will have no obligation to do so, and may discontinue any market making at any time without notice. Consequently, it may be the case that no broker-dealer will make a market in securities of any series or that the liquidity of the trading market for the securities will be limited.
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The validity of the debt securities and the guarantees will be passed upon for us by Sullivan & Cromwell LLP, our U.S. counsel, as to certain matters of New York law, and for any underwriters named in the applicable prospectus supplement by U.S. counsel to any such underwriters, as to certain matters of New York law. The validity of the debt securities, the ordinary share and the guarantees will be passed upon for us by our Lead Counsel Legal, Legal Corporate as to certain matters of Norwegian law, and for any underwriters by Norwegian counsel to any such underwriters. Sullivan & Cromwell LLP may rely upon the opinion of our Lead Counsel Legal, Legal Corporate with respect to all matters of Norwegian law.
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The consolidated financial statements of Equinor ASA appearing in Equinor ASA’s Annual Report (Form 20-F) for the year ended December 31, 2022 and the effectiveness of Equinor ASA’s internal control over financial reporting as of December 31, 2022 have been audited by Ernst & Young AS, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
DeGolyer and MacNaughton, independent petroleum engineering consultants, performed an independent evaluation of proved reserves as of December 31, 2022 for our properties. DeGolyer and MacNaughton has delivered to us its summary letter report describing its procedures and conclusions, a copy of which appears as Exhibit 15.3 to our 2022 Annual Report, which is incorporated herein by reference.
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The following is a statement of the expenses (all of which are estimated) to be incurred by us in connection with a distribution of securities registered under this registration statement:
| Securities and Exchange Commission registration fee |
(1 | ) | ||
| Printing and engraving expenses |
$ | 25,000 | ||
| Legal fees and expenses |
$ | 120,000 | ||
| Accounting fees and expenses |
$ | 110,000 | ||
| Indenture Trustee’s fees and expenses |
$ | 30,000 | ||
| Rating Agencies’ fees |
$ | 4,000,000 | (2) | |
| Miscellaneous |
$ | 50,000 | ||
| Total |
$ | 4,335,000 | ||
|
|
|
| (1) | The registrants are registering an indeterminate amount of securities under the registration statement and in accordance with Rules 456(b) and 457(r), the registrants are deferring payment of any registration fee until the time the securities are sold under the registration statement pursuant to a prospectus supplement. |
| (2) | Rating Agency fees will vary depending on the size of the offering. |
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Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 8. | Indemnification of Directors and Officers. |
Equinor Group
We maintain insurance for the indemnification of our directors and officers against certain liabilities which they may incur in their capacities as such, including insurance against certain liabilities that may arise under the Securities Act.
Equinor and Equinor Energy
Neither Norwegian law nor our articles of association contain any provision concerning indemnification by us of our board of directors.
Chapter 17 of the Norwegian Public Limited Liability Act and the Norwegian Private Limited Liability Act provides that the directors, the Chief Executive Officer and the members of the corporate assembly can each be held liable for any damage they negligently or willfully cause to the company. The general meeting of the company may exempt any such person from liability, but the exemption is not binding if substantially correct and complete information was not provided at the general meeting when the decision was taken. If a resolution to grant such exemption from liability or to not pursue claims against such a person has been passed by a general meeting with a smaller majority than that required to amend our articles of association, shareholders representing more than 10 percent of the share capital or (if there are more than 100 shareholders) more than 10 percent of the number of shareholders may pursue the claim on the company’s behalf and in its name. The cost of any such action is not the company’s responsibility, but can be recovered by any proceeds it receives as a result of the action. If the decision to grant exemption from liability or to not pursue claims is made by such a majority as is necessary to amend the articles of association, the minority shareholders cannot pursue a claim in the name of the company. These provisions are not relevant for creditors who are pursuing their own claim arising from their investment in the securities which is not derived from the loss of Equinor or Equinor Energy, as applicable.
Equinor US Capital LLC
Section 18-108 of the Delaware Limited Liability Company Act provides that, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
The Limited Liability Company Agreement of Equinor US Capital LLC provides that the company shall indemnify any person or entity who was or is a party defendant or is threatened to be made a party defendant, in a pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the company) by reason of the fact that he or she is or was a member of the company; a member of the board of directors of Equinor US Capital LLC, an officer of the company, an employee or agent of the company or is or was serving at the request of the company, for instant expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding to the fullest extent allowed by all applicable law. In addition, no member of the board of directors or officer of Equinor US Capital LLC shall be liable to the company or its members for any act or omission of the board of directors or such officer, the effect of which may cause or result in loss or damage to the company or its members, if done or omitted in good faith to promote the best interests of the company.
| Item | 9. Exhibits |
Reference is made to the Exhibit Index included herewith which is incorporated herein by reference.
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| Item 10. | Undertakings |
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by Equinor pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(5) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the
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earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of a registrant under the Securities Act to any purchaser in the initial distribution of the securities, each undersigned registrant undertakes that in a primary offering of securities of an undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of an undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned registrant or used or referred to by an undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about an undersigned registrant or its securities provided by or on behalf of an undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by an undersigned registrant to the purchaser.
(7) That, for purposes of determining any liability under the Securities Act, each filing of Equinor’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants, of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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INDEX TO EXHIBITS
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| Exhibit |
Description of Document | |
| 22 | List of Subsidiary Issuers of Guaranteed Securities. | |
| 23.1 | Consent of Ernst & Young AS. | |
| 23.2 | Consent of Norwegian Counsel (included in Exhibit 5.1). | |
| 23.3 | Consent of Sullivan & Cromwell LLP (included in Exhibits 5.2 and 8.2 above). | |
| 23.4 | Consent of DeGolyer and MacNaughton. | |
| 24.1 | Powers of attorney for signatories of Equinor, Equinor Energy and Equinor Capital (included as part of the signature pages of the Registration Statement). | |
| 25.1 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.1 above. | |
| 25.2 | Statement of eligibility of Trustee on Form T-1 with respect to Exhibit 4.6 above.** | |
| 107 | Filing Fee Table | |
| * | To be filed by amendment or incorporated by reference to a subsequently filed Report on Form 6-K. |
| ** | To be filed in accordance with Section 305(b)(2) of the Trust Indenture Act, as amended. |
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Pursuant to the requirements of the Securities Act of 1933, Equinor ASA certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stavanger, Norway, on May 4, 2023.
| EQUINOR ASA | ||
| By: | /s/ Torgrim Reitan | |
| Name: Torgrim Reitan | ||
| Title: Chief Financial Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each of Tor Stian Kjøllesdal and Torgrim Reitan (with full power to each of them to act alone), his or her true and lawful attorney-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act of 1933 (the “Securities Act”), and any rules, regulations and requirements of the Securities and Exchange Commission (the “Commission”) in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky laws of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an attorney-in-fact or in any other capacity with respect to this Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on May 4, 2023.
| Signature |
Title | |
| /s/ Jon Erik Reinhardsen Jon Erik Reinhardsen |
Chairman | |
| /s/ Anders Opedal Anders Opedal |
President and Chief Executive Officer (principal executive officer) | |
| /s/ Torgrim Reitan Torgrim Reitan |
Executive Vice President and Chief Financial Officer (principal financial officer and principal accounting officer) | |
| /s/ Haakon Bruun-Hanssen Haakon Bruun-Hanssen |
Non-Executive Director | |
| /s/ Hilde Møllerstad Hilde Møllerstad |
Non-Executive Director | |
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| Signature |
Title | |
| /s/ Per Martin Labråthen Per Martin Labråthen |
Non-Executive Director | |
| /s/ Rebekka Glasser Herlofsen Rebekka Glasser Herlofsen |
Non-Executive Director | |
| /s/ Finn Bjørn Ruyter Finn Bjørn Ruyter |
Non-Executive Director | |
| /s/ Stig Lægreid Stig Lægreid |
Non-Executive Director | |
| /s/ Anne Drinkwater Anne Drinkwater |
Non-Executive Director | |
| /s/ Jonathan Lewis Jonathan Lewis |
Non-Executive Director | |
| /s/ Tove Andersen Tove Andersen |
Non-Executive Director | |
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Authorized Representative
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative of Equinor ASA in the United States, has signed this registration statement in the City of Newark, State of Delaware, on May 4, 2023.
| PUGLISI & ASSOCIATES | ||
| By: | /s/ Donald J. Puglisi | |
| Name: Donald J. Puglisi | ||
| Title: Authorized Representative in the United States | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Equinor Energy AS certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stavanger, Norway, on May 4, 2023.
| EQUINOR ENERGY AS | ||
| By: | /s/ Torgrim Reitan | |
| Name: Torgrim Reitan | ||
| Title: Chairman and Chief Financial Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each of Tor Stian Kjøllesdal and Torgrim Reitan (with full power to each of them to act alone), his or her true and lawful attorney-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act of 1933 (the “Securities Act”), and any rules, regulations and requirements of the Securities and Exchange Commission (the “Commission”) in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky laws of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an attorney-in-fact or in any other capacity with respect to this Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on May 4, 2023.
| Signature |
Title | |
| /s/ Asleiv Brandsøy Asleiv Brandsøy |
Chief Executive Officer and Director (principal executive officer) | |
| /s/ Torgrim Reitan Torgrim Reitan |
Chairman and Chief Financial Officer (principal financial officer and principal accounting officer) | |
| /s/ Finn Lexow Finn Lexow |
Director | |
| /s/ Mette Ferkingstad Mette Ferkingstad |
Director | |
| /s/ Siv Helen Rygh Torstensen Siv Helen Rygh Torstensen |
Director | |
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Authorized Representative
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative of Equinor Energy AS in the United States, has signed this registration statement in the City of Newark, State of Delaware, on May 4, 2023.
| PUGLISI & ASSOCIATES | ||
| By: | /s/ Donald J. Puglisi | |
| Name: Donald J. Puglisi | ||
| Title: Authorized Representative in the United States | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Equinor US Capital LLC certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Stamford, State of Connecticut, on May 4, 2023.
| EQUINOR US CAPITAL LLC | ||
| By: | /s/ Josh Kaplan | |
| Name: Josh Kaplan | ||
| Title: Director | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each of Tor Stian Kjøllesdal and Torgrim Reitan (with full power to each of them to act alone), his or her true and lawful attorney-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act of 1933 (the “Securities Act”), and any rules, regulations and requirements of the Securities and Exchange Commission (the “Commission”) in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky laws of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an attorney-in-fact or in any other capacity with respect to this Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on May 4, 2023.
| Signature |
Title | |
| /s/ Are Dirdal Are Dirdal |
Chairman (principal executive officer) | |
| /s/ Todd Walls Todd Walls |
Manager Accounting (principal financial officer and principal accounting officer) | |
| /s/ Arjan Vellekoop Arjan Vellekoop |
President and Director | |
| /s/ Tom Geczik Tom Geczik |
Director | |
| /s/ Josh Kaplan Josh Kaplan |
Director | |
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Exhibit 5.1
Equinor ASA
Forusbeen 50
N-4035 Stavanger
Norway
Equinor Energy AS
Forusbeen 50
N-4035 Stavanger
Norway
Equinor US Capital LLC
600 Washington Boulevard
Suite 800
Stamford, CT 06901
United States of America
4th of May, 2023
Ladies and Gentlemen:
I have acted as Lead Counsel Legal, Legal Corporate of Equinor ASA, a corporation existing under the Norwegian Public Companies Act (the “Company”) and Equinor Energy AS, a corporation existing under the Norwegian Companies Act and a wholly owned subsidiary of the Company (the “Guarantor”) in connection with the registration under the Securities Act of 1933, as amended (the “Act”) of an indeterminate principal amount of (i) debt securities (the “Debt Securities”) of the Company and of Equinor US Capital LLC, a Delaware limited liability company (“Equinor Capital”), and the related guarantees (the “Guarantees”) by the Guarantor and, in the case of Debt Securities of Equinor Capital, also by the Company, and (ii) ordinary shares (the “Ordinary Shares”) of the Company. I am delivering this opinion pursuant to the requirements of Form F-3.
In connection with my opinion, I have examined such corporate records, certificates and other documents and such questions of law as I have deemed necessary or appropriate for purposes of this opinion.
Based upon and subject to the foregoing, I am of the opinion that:
| (a) | the Company has been duly incorporated and is validly existing as a public limited company (allmennaksjeselskap) under the laws of the Kingdom of Norway; |
| (b) | the Guarantor has been duly incorporated and is validly existing as a limited company (aksjeselskap) under the laws of the Kingdom of Norway; |
| (c) | The Indenture relating to the Debt Securities and Guarantees, dated as of April 15, 2009, as supplemented and amended by the Supplemental Indenture No. 1, dated as of May 26, 2010, as further supplemented and amended by the Supplemental Indenture No. 2, dated as of May 16, 2018, as further |
| Page 1 of 3 | ||||||||
| Equinor ASA Registered number 923 609 016 |
Office address Forusbeen 50 4035 Stavanger |
www.equinor.com |
| supplemented and amended by the Supplemental Indenture No. 3, dated as of September 10, 2018 and as further supplemented and amended by the Supplemental Indenture No. 4 dated as of November 18, 2019, in each case among the Company, the Guarantor and Deutsche Bank Trust Company Americas, as Trustee (the “Indenture”), has been duly authorized, executed and delivered by the Company and the Guarantor and constitutes a valid and legally binding obligation of each of the Company and the Guarantor, enforceable against each in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; |
| (d) | when the Registration Statement on Form F -3 (the “Registration Statement”) has become effective under the Act, the terms of the Debt Securities of the Company and the related Guarantees and of their issuance and sale have been duly established in conformity with the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument then binding upon the Company or the Guarantor, as applicable, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or the Guarantor, as applicable, and the Debt Securities of the Company and the related Guarantees have been duly executed and, in the case of the Debt Securities of the Company, authenticated in accordance with the Indenture and issued and sold as contemplated in the Registration Statement, the Debt Securities of the Company will constitute valid and legally binding obligations of the Company and the Guarantees by the Guarantor will constitute valid and legally binding obligations of the Guarantor, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; |
| (e) | when the Registration Statement has become effective under the Act, the Indenture relating to the Debt Securities of Equinor Capital has been duly authorized, executed and delivered by the parties thereto in substantially the form filed as Exhibit 4.6 to the Registration Statement (the “Equinor Capital Indenture”), the terms of the Debt Securities of Equinor Capital and the related Guarantees and of their issuance and sale have been duly established in conformity with the Equinor Capital Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument then binding upon Equinor Capital, the Company or the Guarantor, as applicable, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Equinor Capital, the Company or the Guarantor, as applicable, and the Debt Securities of Equinor Capital and the related Guarantees have been duly executed and, in the case of the Debt Securities of Equinor Capital, authenticated in accordance with the Equinor Capital Indenture and issued and sold as contemplated in the Registration Statement, the Guarantees by the Company and the Guarantor |
| Page 2 of 3 | ||||||||
| Equinor ASA Registered number 923 609 016 |
Office address Forusbeen 50 4035 Stavanger |
www.equinor.com |
| will constitute their valid and legally binding obligations, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; |
| (f) | when the Registration Statement has become effective under the Act and the Ordinary Shares are issued and delivered against full payment therefor as contemplated in the Registration Statement and in conformity with the Company’s memorandum and articles of association and so as not to violate any applicable law, such Ordinary Shares will have been validly issued, fully paid and non-assessable (i.e., no further contributions in respect thereof will be required to be made to the Company by the holders thereof, by reason solely of their being such holders); and |
| (g) | the statements in the Prospectus included in the Registration Statement under the captions “Enforceability of Civil Liabilities”, “Taxation — Norwegian Taxation of Debt Securities and Payments under the Guarantees” and “Taxation — Norwegian Taxation of Ordinary Shares and ADSs”, to the extent such statements relate to matters of Norwegian law or regulation or to the provision of documents governed by the laws of Norway therein described, fairly present the information called for with respect to such legal matters and documents and fairly summarize the matters referred to therein. |
The opinions expressed herein are limited to questions arising under the laws of the Kingdom of Norway as they stand and have been interpreted in published case law of the courts in the Kingdom of Norway as of the date hereof, and I have not investigated the laws of any jurisdiction other than the Kingdom of Norway and I do not express or imply an opinion on the laws of any jurisdiction other than the Kingdom of Norway.
This opinion is furnished to you solely for your benefit and may not be used or relied upon by or published or communicated to any other person or entity for any purpose whatsoever without my prior written consent.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to me under the caption “Validity of Securities” in the Prospectus included therein. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required within Section 7 of the Act.
| Very truly yours, |
| /s/ Cecilie C. Tank-Nielsen |
| Lead Counsel Legal |
| Page 3 of 3 | ||||||||
| Equinor ASA Registered number 923 609 016 |
Office address Forusbeen 50 4035 Stavanger |
www.equinor.com |
Exhibit 5.2
May 4, 2023
Equinor ASA,
Forusbeen 50,
N-4035 Stavanger,
Norway.
Equinor Energy AS,
Forusbeen 50,
N-4035 Stavanger,
Norway.
Equinor US Capital LLC,
600 Washington Boulevard, Suite 800,
Stamford, CT 06901, USA.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933 (the “Act”), of an indeterminate principal amount of (i) debt securities (the “Debt Securities”) of Equinor ASA, a Norwegian corporation (the “Company”) and of Equinor US Capital LLC, a Delaware limited liability company (“Equinor Capital”), the related guarantees (the “Guarantees”) of the Debt Securities by Equinor Energy AS (the “Guarantor”) and, in the case of the Debt Securities of Equinor Capital also by the Company and (ii) ordinary shares (the “Ordinary Shares”), nominal value NOK 2.50 per share, of the Company, we, as your United States counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.
| Equinor ASA Equinor Energy AS Equinor US Capital LLC |
||
| - 2 - |
Upon the basis of such examination, it is our opinion that:
(i) when the Registration Statement on Form F-3 (the “Registration Statement”) has become effective under the Act, the terms of the Debt Securities of the Company and the related Guarantees and of their issuance and sale have been duly established in conformity with the Indenture relating to such Debt Securities and Guarantees, dated as of April 15, 2009, as amended and supplemented by Supplemental Indenture No. 1, dated as of May 26, 2010, as further amended and supplemented by Supplemental Indenture No. 2, dated as of May 16, 2018, as further amended and supplemented by Supplemental Indenture No. 3, dated as of September 10, 2018, and as further amended and supplemented by Supplemental Indenture No. 4, dated as of November 18, 2019, in each case among the Company, the Guarantor and Deutsche Bank Trust Company Americas, as Trustee (the “Indenture”), so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company or the Guarantor, as applicable, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company or the Guarantor, as applicable, and the Debt Securities of the Company and the related Guarantees have been duly executed and, in the case of the Debt Securities of the Company, authenticated in accordance with the Indenture and issued and sold as contemplated in the Registration Statement, the Debt Securities of the Company will constitute valid and legally binding obligations of the Company and the Guarantees by the Guarantor will constitute valid and legally binding obligations of the Guarantor, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
| Equinor ASA Equinor Energy AS Equinor US Capital LLC |
||
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(ii) when the Registration Statement has become effective under the Act, the Indenture relating to the Debt Securities of Equinor Capital has been duly authorized, executed and delivered by the parties thereto in substantially the form filed as Exhibit 4.6 to the Registration Statement (the “Equinor Capital Indenture”), the terms of the Debt Securities of Equinor Capital and the related Guarantees and of their issuance and sale have been duly established in conformity with the Equinor Capital Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon Equinor Capital, the Company or the Guarantor, as applicable, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Equinor Capital, the Company or the Guarantor, as applicable, and the Debt Securities of Equinor Capital and the related Guarantees have been duly executed and, in the case of the Debt Securities of Equinor Capital, authenticated in accordance with the Equinor Capital Indenture and issued and sold as contemplated in the Registration Statement, the Debt Securities of Equinor Capital will constitute valid and legally binding obligations of Equinor Capital and the Guarantees by the Company and the Guarantor will constitute their respective valid and legally binding obligations, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
| Equinor ASA Equinor Energy AS Equinor US Capital LLC |
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| - 4 - |
In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in any registration statement or any related prospectus or other offering material relating to the offer and sale of the Debt Securities and Ordinary Shares.
We note that, as of the date of this opinion, a judgment for money in an action based on a Debt Security denominated in a foreign currency or currency unit or the related Guarantee in a Federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Debt Security is denominated or the related Guarantee into United States dollars will depend upon various factors, including which court renders the judgment. In the case of a Debt Security or related Guarantee denominated in a foreign currency, a state court in the State of New York rendering a judgment on such Debt Security or Guarantee would be required under Section 27 of the New York Judiciary Law to render such judgment in the foreign currency in which the Debt Security or Guarantee is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment.
The foregoing opinion is limited to the Federal laws of the United States, the laws of the State of New York and the Limited Liability Company Act of the State of Delaware, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. For the purposes of our opinion, we have assumed that (i) the Company and the Guarantor have each been duly incorporated, (ii) the Company is a
| Equinor ASA Equinor Energy AS Equinor US Capital LLC |
||
| - 5 - |
validly existing public limited company (allmennaksjeselskap), (iii) the Guarantor is validly existing as a limited company (aksjeselskap), (iv) the Indenture has been duly authorized, executed and delivered by the Company and the Guarantor, in each case, under the laws of the Kingdom of Norway, (v) the Equinor Capital Indenture will be duly authorized, executed and delivered the Company and the Guarantor, in each case, under the laws of the Kingdom of Norway, (vi) the execution and delivery of the Equinor Capital Indenture will not result in any breach or violation of, or conflict with, any Norwegian statute, rule or regulation and (vii) the provisions of the Indenture and the Equinor Capital Indenture designating the law of the State of New York as the governing law of such indenture will be valid and binding on each of the Company and the Guarantor under the laws of the Kingdom of Norway. With respect to all matters of Norwegian law, we note that you have received an opinion, dated today’s date, of the Lead Counsel Legal, Legal Corporate of Equinor ASA and Equinor Energy AS.
We have relied as to certain factual matters on information obtained from public officials, officers of the Company, the Guarantor and Equinor Capital and other sources believed by us to be responsible, and we have assumed that the Indenture has been duly authorized, executed and delivered by the Trustee thereunder, an assumption which we have not independently verified.
| Equinor ASA Equinor Energy AS Equinor US Capital LLC |
||
| - 6 - |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading “Validity of Securities” in the prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours, |
| /s/ SULLIVAN & CROMWELL LLP |
Exhibit 8.2
May 4, 2023
Equinor ASA,
Forusbeen 50,
N-4035 Stavanger,
Norway.
Equinor Energy AS,
Forusbeen 50,
N-4035 Stavanger,
Norway.
Equinor US Capital LLC,
120 Long Ridge Road,
Suite 3E01,
Stamford, CT 06902.
Ladies and Gentlemen:
We have acted as United States federal income tax counsel to Equinor ASA (“Equinor”), Equinor Energy AS (“Equinor Energy”) and Equinor US Capital LLC (“Equinor Capital”) in connection with the registration under the Securities Act of 1933 (the “Act”) by (i) Equinor of an indeterminate amount of debt securities fully and unconditionally guaranteed by Equinor Energy and of ordinary shares, which ordinary shares may be represented by American Depositary Shares, evidenced by American Depositary Receipts and (ii) Equinor Capital of an indeterminate amount of debt securities fully and unconditionally guaranteed by Equinor and Equinor Energy. We hereby confirm to you that the statements of United States tax law set forth under the heading “TAXATION — United States Taxation” in the Registration Statement on Form F-3 (“Registration Statement”), dated as of the date hereof, are our opinion and are accurate in all material respects, subject to the limitations and exceptions set forth in the Registration Statement.
| Equinor ASA Equinor Energy AS Equinor US Capital LLC |
||
| - 2 - |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “TAXATION — United States Taxation.” In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours, |
| /s/ SULLIVAN & CROMWELL LLP |
Exhibit 22
LIST OF GUARANTOR SUBSIDIARIES
Equinor Energy AS, a company existing under the Norwegian Private Limited Liability Companies Act and a wholly owned subsidiary of Equinor ASA, has guaranteed or is a co-obligor for the following unsecured debt securities.
| • | USD 300,000,000 7.75% Debentures due 2023 |
| • | USD 900,000,000 2.650% Notes due 2024 |
| • | USD 1,000,000,000 3.700% Notes due 2024 |
| • | USD 500,000,000 3.250% Notes due 2024 |
| • | USD 250,000,000 7.15% Debentures due 2025 |
| • | USD 1,250,000,000 2.875% Notes due 2025 |
| • | USD 750,000,000 1.750% Notes due 2026 |
| • | USD 480,512,000 7.250% Debentures due 2027 |
| • | USD 15,588,000 7.250% Debentures due 2027 |
| • | USD 500,000,000 3.000% Notes due 2027 |
| • | USD 1,000,000,000 3.625% Notes due 2028 |
| • | USD 250,000,000 6.800% Debentures due 2028 |
| • | USD 275,000,000 7.150% Debentures due 2029 |
| • | USD 1,500,000,000 3.125% Notes due 2030 |
| • | USD 750,000,000 2.375% Notes due 2030 |
| • | USD 750,000,000 5.100% Notes due 2040 |
| • | USD 500,000,000 3.625% Notes due 2040 |
| • | USD 350,000,000 4.250% Notes due 2041 |
| • | USD 300,000,000 4.250% Notes due 2041 |
| • | USD 850,000,000 3.950% Notes due 2043 |
| • | USD 750,000,000 4.800% Notes due 2043 |
| • | USD 1,000,000,000 3.250% Notes due 2049 |
| • | USD 1,250,000,000 3.700% Notes due 2050 |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form F-3) and related Prospectus of Equinor ASA, Equinor Energy AS and Equinor US Capital LLC and to the incorporation by reference therein of our reports dated March 14, 2023, with respect to the consolidated financial statements of Equinor ASA, and the effectiveness of internal control over financial reporting of Equinor ASA, included in its Annual Report (Form 20-F) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
| /s/ Ernst & Young AS |
| Ernst & Young AS |
Stavanger, Norway
4 May 2023
Exhibit 23.4
DEGOLYER AND MACNAUGHTON
5001 SPRING VALLEY ROAD
SUITE 800 EAST
DALLAS, TEXAS 75244
May 4, 2023
Equinor ASA
Forusbeen 50
N-4035 Stavanger
Norway
Ladies and Gentlemen:
We hereby consent to the references to DeGolyer and MacNaughton under the heading “Experts” in the Equinor ASA, Equinor Energy AS, and Equinor US Capital LLC United States Securities and Exchange Commission Registration Statement on Form F-3 and the incorporation by reference therein of our report of third party dated February 21, 2023, concerning our independent evaluation of certain properties in which Equinor ASA has represented it holds an interest, which is included as Exhibit 15.3 to the Equinor ASA Annual Report on Form 20-F for the year ended December 31, 2022.
Very truly yours,
/s/ DeGOLYER and MacNAUGHTON
DeGOLYER and MacNAUGHTON
Texas Registered Engineering Firm F-716
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in its charter)
| NEW YORK | 13-4941247 | |
| (Jurisdiction of Incorporation or organization if not a U.S. national bank) |
(I.R.S. Employer Identification no.) |
| One Columbus Circle NEW YORK, NEW YORK |
10019 | |
| (Address of principal executive offices) |
(Zip Code) |
Deutsche Bank Trust Company Americas
Attention: Mirko Mieth
Legal Department
One Columbus Circle 19th Floor
New York, New York 10019
(212) 250 – 1663
(Name, address and telephone number of agent for service)
EQUINOR ASA
(Exact name of registrant as specified in its charter)
| Kingdom of Norway | Not Applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
Forusbeen 50, N-4035
Stavanger, Norway
011-47-5199-0000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Equinor Energy AS
(Exact name of registrant as specified in its charter)
| Kingdom of Norway | Not Applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
Forusbeen 50, N-4035
Stavanger, Norway
011-47-5199-0000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Equinor US Capital LLC
(Exact name of registrant as specified in its charter)
| Delaware | 84-4853081 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
600 Washington Boulevard,
Suite 800
Stamford, CT 06901, U.S.A.
(203) 978-6900
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Equinor US Holding Inc.
600 Washington Boulevard,
Suite 800
Stamford, CT 06901, U.S.A.
(203) 978-6900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
| John Horsfield-Bradbury Sullivan & Cromwell LLP 1 New Fetter Lane London EC4A 1AN, England 44-20-7959-8900 |
Debt Securities
(Title of the Indenture securities)
| Item 1. | General Information. |
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to which it is subject.
| Name |
Address | |
| Federal Reserve Bank (2nd District) | New York, NY | |
| Federal Deposit Insurance Corporation | Washington, D.C. | |
| New York State Banking Department | Albany, NY |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
Not Applicable.
| Item 3. | -15. Not Applicable |
Item 16. List of Exhibits.
| Exhibit 1 - | Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 18, 1998;Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 14, 2002, incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 2 - | Certificate of Authority to commence business, incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 3 - | Authorization of the Trustee to exercise corporate trust powers, incorporated herein by reference to Exhibit 3 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 4 - | A copy of existing By-Laws of Deutsche Bank Trust Company Americas, dated March 2, 2022 (see attached). | |
| Exhibit 5 - | Not applicable. | |
| Exhibit 6 - | Consent of Bankers Trust Company required by Section 321(b) of the Act, incorporated herein by reference to Exhibit 6 filed with Form T-1 Statement, Registration No. 333-201810. | |
| Exhibit 7 - | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. | |
| Exhibit 8 - | Not Applicable. | |
| Exhibit 9 - | Not Applicable. | |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 2nd day of May, 2023.
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| By: | /s/ Carol Ng | |
| Carol Ng | ||
| Vice President | ||
Exhibit 4
AMENDED AND RESTATED
BY-LAWS
OF
DEUTSCHE BANK TRUST COMPANY AMERICAS
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meeting. The annual meeting of the stockholders of Deutsche Bank Trust Company Americas (the “Company”) shall be held in the City of New York within the State of New York within the first four months of the Company’s fiscal year, on such date and at such time and place as the board of directors of the Company (“Board of Directors” or “Board”) may designate in the call or in a waiver of notice thereof, for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting.
Section 1.02. Special Meetings. Special meetings of the stockholders of the Company may be called by the Board of Directors or by the President, and shall be called by the President or by the Secretary upon the written request of the holders of record of at least twenty-five percent (25%) of the shares of stock of the Company issued and outstanding and entitled to vote, at such times. If for a period of thirteen months after the last annual meeting, there is a failure to elect a sufficient number of directors to conduct the business of the Company, the Board of Directors shall call a special meeting for the election of directors within two weeks after the expiration of such period; otherwise, holders of record of ten percent (10%) of the shares of stock of the Company entitled to vote in an election of directors may, in writing, demand the call of a special meeting at the office of the Company for the election of directors, specifying the date and month thereof, but not less than two nor more than three months from the date of such call. At any such special meeting called on demand of stockholders, the stockholders attending, in person or by proxy, and entitled to vote in an election of directors shall constitute a quorum for the purpose of electing directors, but not for the transaction of any other business.
Section 1.03. Notice of Meetings. Notice of the time, place and purpose of every meeting of stockholders shall be delivered personally or mailed not less than 10 nor more than 50 days before the date of such meeting (or any other action) to each stockholder of record entitled to vote, at his post office address appearing upon the records of the Company or at such other address as shall be furnished in writing by him to the Secretary of the Company for such purpose. Such further notice shall be given as may be required by law or by these By-Laws. Any meeting may be held without notice if all stockholders entitled to vote are present in person or by proxy, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 1.04. Quorum. The holders of record of at least a majority of the shares of the stock of the Company issued and outstanding and entitled to vote, present in person or by proxy, shall, except as otherwise provided by law, by the Company’s Organization Certificate or by these By-Laws, constitute a quorum at all meetings of the stockholders; if there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time until a quorum shall have been obtained.
Section 1.05. Organization of Meetings. Meetings of the stockholders shall be presided over by the Chairman of the Board or, if he is not present, by the President or, if he is not present, by a chairman to be chosen at the meeting. The Secretary of the Company, or in his absence an Assistant Secretary, shall act as secretary of the meeting, if present.
- 1 -
Section 1.06. Voting. At each meeting of stockholders, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, every holder of record of stock entitled to vote shall be entitled to one vote in person or by proxy for each share of such stock standing in his name on the records of the Company. Elections of directors shall be determined by a plurality of the votes cast thereat and, except as otherwise provided by statute, the Company’s Organization Certificate or these By-Laws, all other action shall be determined by a majority of the votes cast at such meeting.
At all elections of directors, the voting shall be by ballot or in such other manner as may be determined by the stockholders present in person or by proxy entitled to vote at such election.
Section 1.07. Action by Consent. Except as may otherwise be provided in the Company’s Organization Certificate, any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, without prior notice and without a vote if, prior to such action, a written consent or consents thereto, setting forth such action, is signed by all the holders of record of shares of the stock of the Company, issued and outstanding and entitled to vote thereon, having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
ARTICLE II
DIRECTORS
Section 2.01. Chairman of the Board. Following the election of the Board of Directors at each annual meeting, the elected Board shall appoint one of its members as Chairman. The Chairman of the Board shall preside at all meetings of the Board of Directors and of the stockholders, and he shall perform such other duties and have such other powers as from time to time may be prescribed by the Board of Directors.
Section 2.02. Lead Independent Director. Following the election of the Board of Directors at each annual meeting, the elected Board may appoint one of its independent members as its Lead Independent Director. When the Chairman of the Board is not present at a meeting of the Board of Directors, the Lead Independent Director, if there be one, shall preside.
Section 2.03. Director Emeritus. The Board of Directors may from time to time elect one or more Directors Emeritus. Each Director Emeritus shall be elected for a term expiring on the date of the regular meeting of the Board of Directors following the next annual meeting. No Director Emeritus shall be considered a “director” for purposes of these By-Laws or for any other purpose.
Section 2.04. Powers, Number, Quorum, Term, Vacancies, Removal. The business and affairs of the Company shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Company and do all such lawful acts and things as are not by statute or by the Company’s Organization Certificate or by these By-Laws required to be exercised or done by the stockholders.
The number of directors may be changed by a resolution passed by a majority of the members of the Board of Directors or by a vote of the holders of record of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote, but at all times the Board of Directors must consist of not less than seven nor more than thirty directors. No more than one-third of the directors shall be active officers or employees of the Company. At least one-half of the directors must be citizens of the United States at the time of their election and during their continuance in office.
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Except as otherwise required by law, rule or regulation, or by the Company’s Organization Certificate, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the Board of Directors, or such committee, as applicable. Any one or more members of the Board may participate in a meeting of the Board by means of a conference telephone or video, or other similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. Whether or not a quorum shall be present at any meeting of the Board of Directors or a committee thereof, a majority of the directors present thereat may adjourn the meeting from time to time; notice of the adjourned meeting shall be given to the directors who were not present at the time of the adjournment, but if the time and place of the adjourned meeting are announced, no additional notice shall be required to be given to the directors present at the time of adjournment.
Directors shall hold office until the next annual election and until their successors shall have been elected and shall have qualified. Director vacancies not exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term.
Any one or more of the directors of the Company may be removed either with or without cause at any time by a vote of the holders of record of at least a majority of the shares of stock of the Company, issued and outstanding and entitled to vote, and thereupon the term of the director or directors who shall have been so removed shall forthwith terminate and there shall be a vacancy or vacancies in the Board of Directors, to be filled by a vote of the stockholders as provided in these By-Laws.
Section 2.05. Meetings, Notice. Meetings of the Board of Directors shall be held at such place either within or without the State of New York, as may from time to time be fixed by resolution of the Board, or as may be specified in the call or in a waiver of notice thereof. Regular meetings of the Board of Directors and its Executive Committee shall be held as often as may be required under applicable law, and special meetings may be held at any time upon the call of two directors, the Chairman of the Board or the President, by oral, telegraphic or written notice duly served on or sent or mailed to each director not less than two days before such meeting. Any meeting may be held without notice, if all directors are present, or if notice is waived in writing, either before or after the meeting, by those not present.
Section 2.06. Compensation. The Board of Directors may determine, from time to time, the amount of compensation, which shall be paid to its members. The Board of Directors shall also have power, in its discretion, to allow a fixed sum and expenses for attendance at each regular or special meeting of the Board, or of any committee of the Board. The Board of Directors shall also have power, in its discretion, to provide for and pay to directors rendering services to the Company not ordinarily rendered by directors, as such, special compensation appropriate to the value of such services, as determined by the Board from time to time.
ARTICLE III
COMMITTEES
Section 3.01. Executive Committee. There shall be an Executive Committee of the Board who shall be appointed annually by resolution adopted by the majority of the entire Board of Directors. The Chairman of the Board shall preside at meetings of the Executive Committee. In his absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, such other member of the Executive Committee as the Executive Committee from time to time may designate shall preside at such meetings.
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Section 3.02. Audit and Fiduciary Committee. There shall be an Audit and Fiduciary Committee appointed annually by resolution adopted by a majority of the entire Board of Directors which shall consist of such number of independent directors, as may from time to time be fixed by the Audit and Fiduciary Committee charter adopted by the Board of Directors.
Section 3.03. Other Committees. The Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees. Each Committee appointed pursuant to this Article shall serve at the pleasure of the Board of Directors.
Section 3.04. Limitations. No committee shall have the authority as to the following matters: (i) the submission to stockholders of any action that needs stockholders’ authorization under New York Banking Law; (ii) the filling of vacancies in the Board of Directors or in any such committee; (iii) the fixing of compensation of the directors for serving on the Board of Directors or on any committee; (iv) the amendment or repeal of these By-Laws, or the adoption of new by-laws; (v) the amendment or repeal of any resolution of the Board of Directors which by its terms shall not be so amendable or repealable; or (vi) the taking of action which is expressly required by any provision of New York Banking Law to be taken at a meeting of the Board of Directors or by a specified proportion of the directors.
ARTICLE IV
OFFICERS
Section 4.01. Titles and Election. The officers of the Company, who shall be chosen by the Board of Directors within twenty-five days after each annual meeting of stockholders, shall be a President, Chief Executive Officer, Chief Risk Officer, Chief Financial Officer, Treasurer, Secretary, and a General Auditor. The Board of Directors from time to time may elect one or more Managing Directors, Directors, Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers and agents as it shall deem necessary, and may define their powers and duties. Any number of offices may be held by the same person, except the offices of President and Secretary.
Section 4.02. Terms of Office. Each officer shall hold office for the term for which he is elected or appointed, and until his successor has been elected or appointed and qualified.
Section 4.03. Removal. Any officer may be removed, either with or without cause, at any time, by the affirmative vote of a majority of the Board of Directors.
Section 4.04. Resignations. Any officer may resign at any time by giving written notice to the Board of Directors or to the Secretary. Such resignation shall take effect at the time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.05. Vacancies. If the office of any officer or agent becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the Board of Directors may choose a successor, who shall hold office for the unexpired term in respect of which such vacancy occurred.
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Section 4.06. President. The President shall have general authority to exercise all the powers necessary for the President of the Company. In the absence of the Chairman and the Lead Independent Director, the President shall preside at all meetings of the Board of Directors and of the stockholders. The President shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the president of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.07. Chief Executive Officer. Unless otherwise determined by the Board of Directors, the President shall be the Chief Executive Officer of the Company. The Chief Executive Officer shall exercise the powers and perform the duties usual to the chief executive officer and, subject to the control of the Board of Directors, shall have general management and control of the affairs and business of the Company; he shall appoint and discharge employees and agents of the Company (other than officers elected by the Board of Directors); he shall see that all orders and resolutions of the Board of Directors are carried into effect; he shall have the power to execute bonds, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to the office of the chief executive officer of a corporation and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.08. Chief Risk Officer. The Chief Risk Officer shall have the responsibility for the risk management and monitoring of the Company. The Chief Risk Officer shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and he shall perform such other duties and have such other powers as may be incident to his office and as from time to time may otherwise be prescribed by the Board of Directors.
Section 4.09. Chief Financial Officer. The Chief Financial Officer shall have the responsibility for reporting to the Board of Directors on the financial condition of the Company, preparing and submitting all financial reports required by applicable law, and preparing annual financial statements of the Company and coordinating with qualified third party auditors to ensure such financial statements are audited in accordance with applicable law.
Section 4.10. Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys, and other valuable effects in the name and to the credit of the Company, in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the directors whenever they may require it an account of all his transactions as Treasurer and of the financial condition of the Company.
Section 4.11. Secretary. The Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of proceedings in records or books to be kept for that purpose. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors and shall perform such other duties and have such other powers as may be incident to the office of the secretary of a corporation and as from time to time may otherwise be prescribed by the Board of Directors. The Secretary shall have and be the custodian of the stock records and all other books, records and papers of the Company (other than financial) and shall see that all books, reports, statements, certificates and other documents and records required by law are properly kept and filed.
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Section 4.12. General Auditor. The General Auditor shall be responsible, through the Audit and Fiduciary Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of the system of internal controls. Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws. He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit and Fiduciary Committee. The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates. He shall have the duty to report to the Audit and Fiduciary Committee on all matters concerning the internal audit program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit and Fiduciary Committee may request.
Section 4.13. Managing Directors, Directors and Vice Presidents. If chosen, the Managing Directors, Directors and Vice Presidents, in the order of their seniority, shall, in the absence or disability of the President, exercise all of the powers and duties of the President. Such Managing Directors, Directors and Vice Presidents shall have the power to execute bonds, notes, mortgages and other contracts, agreements and instruments of the Company, and they shall perform such other duties and have such other powers as may be incident to their respective offices and as from time to time may be prescribed by the Board of Directors or the President.
Section 4.14. Duties of Officers may be Delegated. In case of the absence or disability of any officer of the Company, or for any other reason that the Board may deem sufficient, the Board may delegate, for the time being, the powers or duties, or any of them, of such officer to any other officer.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 5.01. Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made or threatened to be made a party to an action or proceeding (other than one by or in the right of the Company to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company served in any capacity at the request of the Company, by reason of the fact that such person, his or her testator or intestate, was a director or officer of the Company, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which such person reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, and had no reasonable cause to believe that such person’s conduct was unlawful.
Section 5.02. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Company. Subject to the other provisions of this Article V, and subject to applicable law, the Company shall indemnify any person made, or threatened to be made, a party to an action by or in the right of the Company to procure a judgment in its favor by reason of the fact that such person, his or her testator or intestate, is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of any other corporation of any type or kind, domestic or foreign, of any partnership, joint venture, trust, employee benefit plan or other enterprise,
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against amounts paid in settlement and reasonable expenses, including attorneys’ fees, actually and necessarily incurred by such person in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the Company, except that no indemnification under this Section 5.02 shall be made in respect of (a) a threatened action, or a pending action which is settled or otherwise disposed of, or (b) any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement amount and expenses as the court deems proper.
Section 5.03. Authorization of Indemnification. Any indemnification under this Article V (unless ordered by a court) shall be made by the Company only if authorized in the specific case (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding upon a finding that the director or officer has met the standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be; or (ii) if a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be, has been met by such director or officer; or (y) by the stockholders upon a finding that the director or officer has met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be. A person who has been successful on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Sections 5.01 or 5.02, shall be entitled to indemnification as authorized in such section.
Section 5.04. Good Faith Defined. For purposes of any determination under Section 5.03, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, or to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Company or another enterprise, or on information supplied to such person by the officers of the Company or another enterprise in the course of their duties, or on the advice of legal counsel for the Company or another enterprise or on information or records given or reports made to the Company or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or another enterprise. The provisions of this Section 5.04 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 5.01 or Section 5.02, as the case may be.
Section 5.05. Serving an Employee Benefit Plan on behalf of the Company. For the purpose of this Article V, the Company shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his duties to the Company also imposes duties on, or otherwise involves services by, such person to the plan or participants or beneficiaries of the plan; excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered fines; and action taken or omitted by a person with respect to an employee benefit plan in the performance of such person’s duties for a purpose reasonably believed by such person to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company.
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Section 5.06. Indemnification upon Application to a Court. Notwithstanding the failure of the Company to provide indemnification and despite any contrary resolution of the Board or stockholders under Section 5.03, or in the event that no determination has been made within ninety days after receipt of the Company of a written claim therefor, upon application to a court by a director or officer, indemnification shall be awarded by a court to the extent authorized in Section 5.01 or Section 5.02. Such application shall be upon notice to the Company. Neither a contrary determination in the specific case under Section 5.03 nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct.
Section 5.07. Expenses Payable in Advance. Subject to the other provisions of this Article V, and subject to applicable law, expenses incurred in defending a civil or criminal action or proceeding may be paid by the Company in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount (i) if it shall ultimately be determined that such person is not entitled to be indemnified by the Company as authorized in this Article V, (ii) where indemnification is granted, to the extent expenses so advanced by the Company or allowed by a court exceed the indemnification to which such person is entitled and (iii) upon such other terms and conditions, if any, as the Company deems appropriate. Any such advancement of expenses shall be made in the sole and absolute discretion of the Company only as authorized in the specific case upon a determination made, with respect to a person who is a director or officer at the time of such determination, (i) by the Board acting by a quorum consisting of directors who are not parties to such action or proceeding, or (ii) if a quorum is not obtainable or, even if obtainable, if a quorum of disinterested directors so directs, (x) by the Board upon the opinion in writing of independent legal counsel or (y) by the stockholders and, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Company. Without limiting the foregoing, the Company reserves the right in its sole and absolute discretion to revoke at any time any approval previously granted in respect of any such request for the advancement of expenses or to, in its sole and absolute discretion, impose limits or conditions in respect of any such approval.
Section 5.08. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses granted pursuant to, or provided by, this Article V shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification or advancement of expenses may be entitled whether contained in the Company’s Organization Certificate, these By-Laws or, when authorized by the Organization Certificate or these By-Laws, (i) a resolution of stockholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Nothing contained in this Article V shall affect any rights to indemnification to which corporate personnel other than directors and officers may be entitled by contract or otherwise under law.
Section 5.09. Insurance. Subject to the other provisions of this Article V, the Company may purchase and maintain insurance (in a single contract or supplement thereto, but not in a retrospective rated contract): (i) to indemnify the Company for any obligation which it incurs as a result of the indemnification of directors and officers under the provisions of this Article V, (ii) to indemnify directors and officers in instances in which they may be indemnified by the Company under the provisions of this Article V and applicable law, and (iii) to indemnify directors and officers in instances in which they may not otherwise be indemnified by the Company under the provisions of this Article V, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the New York Superintendent of Financial Services, for a retention amount and for co-insurance. Notwithstanding the foregoing, any such insurance shall be subject to the provisions of, and the Company shall comply with the requirements set forth in, Section 7023 of the New York State Banking Law.
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Section 5.10. Limitations on Indemnification and Insurance. All indemnification and insurance provisions contained in this Article V are subject to any limitations and prohibitions under applicable law, including but not limited to Section 7022 (with respect to indemnification, advancement or allowance) and Section 7023 (with respect to insurance) of the New York State Banking Law and the Federal Deposit Insurance Act (with respect to administrative proceedings or civil actions initiated by any federal banking agency). Notwithstanding anything contained in this Article V to the contrary, no indemnification, advancement or allowance shall be made (i) to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (ii) in any circumstance where it appears (a) that the indemnification would be inconsistent with a provision of the Company’s Organization Certificate, these By-Laws, a resolution of the Board or of the stockholders, an agreement or other proper corporate action, in effect at the time of the accrual of the alleged cause of action asserted in the threatened or pending action or proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) if there has been a settlement approved by the court, that the indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement.
Notwithstanding anything contained in this Article V to the contrary, but subject to any requirements of applicable law, (i) except for proceedings to enforce rights to indemnification (which shall be governed by Section 5.06), the Company shall not be obligated to indemnify any director or officer (or his testators intestate) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company, (ii) with respect to indemnification or advancement of expenses relating to attorneys’ fees under this Article V, counsel for the present or former director or officer must be reasonably acceptable to the Company (and the Company may, in its sole and absolute discretion, establish a panel of approved law firms for such purpose, out of which the present or former director or officer could be required to select an approved law firm to represent him), (iii) indemnification in respect of amounts paid in settlement shall be subject to the prior consent of the Company (not to be unreasonably withheld), (iv) any and all obligations of the Corporation under this Article V shall be subject to applicable law, (v) in no event shall any payments pursuant to this Article V be made if duplicative of any indemnification or advancement of expenses or other reimbursement available to the applicable director or officer (other than for coverage maintained by such person in his individual capacity), and (vi) no indemnification or advancement of expenses shall be provided under these By-Laws to any person in respect of any expenses, judgments, fines or amounts paid in settlement to the extent incurred by such person in his capacity or position with another entity (including, without limitation, an entity that is a stockholder of the Company or any of the branches or affiliates of such stockholder), except as expressly provided in these By-Laws in respect of such person’s capacity and position as a director or officer of the Company or such person is a director or officer of the Company serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.
Section 5.11. Indemnification of Other Persons. The Company may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses (whether pursuant to an adoption of a policy or otherwise) to employees and agents of the Company (whether similar to those conferred in this Article V upon directors and officers of the Company or on other terms and conditions authorized from time to time by the Board of Directors), as well as to employees of direct and indirect subsidiaries of the Company and to other persons (or categories of persons) approved from time to time by the Board of Directors.
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Section 5.12. Repeal. Any repeal or modification of this Article V shall not adversely affect any rights to indemnification and to the advancement of expenses of a director, officer, employee or agent of the Company existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
ARTICLE VI
CAPITAL STOCK
Section 6.01. Certificates. The interest of each stockholder of the Company shall be evidenced by certificates for shares of stock in such form as the Board of Directors may from time to time prescribe. The certificates of stock shall be signed by the Chairman of the Board or the President or a Managing Director or a Director or a Vice President and by the Secretary, or the Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed with the seal of the Company or a facsimile thereof, and countersigned and registered in such manner, if any, as the Board of Directors may by resolution prescribe. Where any such certificate is countersigned by a transfer agent other than the Company or its employee, or registered by a registrar other than the Company or its employee, the signature of any such officer may be a facsimile signature. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on, any such certificate or certificates shall cease to be such officer or officers of the Company, whether because of death, resignation, retirement, disqualification, removal or otherwise, before such certificate or certificates shall have been delivered by the Company, such certificate or certificates may nevertheless be adopted by the Company and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures shall have been used thereon had not ceased to be such officer or officers of the Company.
Section 6.02. Transfer. The shares of stock of the Company shall be transferred only upon the books of the Company by the holder thereof in person or by his attorney, upon surrender for cancellation of certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Company or its agents may reasonably require.
Section 6.03. Record Dates. The Board of Directors may fix in advance a date, not less than 10 nor more than 50 days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the distribution or allotment of any rights, or the date when any change, conversion or exchange of capital stock shall go into effect, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, or entitled to receive payment of any such dividend, or to receive any distribution or allotment of such rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, and in such case only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend, or to receive such distribution or allotment or rights or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Company after any such record date fixed as aforesaid.
Section 6.04. Lost Certificates. In the event that any certificate of stock is lost, stolen, destroyed or mutilated, the Board of Directors may authorize the issuance of a new certificate of the same tenor and for the same number of shares in lieu thereof. The Board may in its discretion, before the issuance of such new certificate, require the owner of the lost, stolen, destroyed or mutilated certificate or the legal representative of the owner to make an affidavit or affirmation setting forth such facts as to the loss, destruction or mutilation as it deems necessary and to give the Company a bond in such reasonable sum as it directs to indemnify the Company.
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ARTICLE VII
CHECKS, NOTES, ETC.
Section 7.01. Checks, Notes, Etc. All checks and drafts on the Company’s bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other instruments for the payment of money, may be signed by the President or any Managing Director or any Director or any Vice President and may also be signed by such other officer or officers, agent or agents, as shall be thereunto authorized from time to time by the Board of Directors.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. Fiscal Year. The fiscal year of the Company shall be from January 1 to December 31, unless changed by the Board of Directors.
Section 8.02. Books. There shall be kept at such office of the Company as the Board of Directors shall determine, within or without the State of New York, correct books and records of account of all its business and transactions, minutes of the proceedings of its stockholders, Board of Directors and committees, and the stock book, containing the names and addresses of the stockholders, the number of shares held by them, respectively, and the dates when they respectively became the owners of record thereof, and in which the transfer of stock shall be registered, and such other books and records as the Board of Directors may from time to time determine.
Section 8.03. Voting of Stock. Unless otherwise specifically authorized by the Board of Directors, all stock owned by the Company, other than stock of the Company, shall be voted, in person or by proxy, by the President or any Managing Director or any Director or any Vice President of the Company on behalf of the Company.
ARTICLE IX
AMENDMENTS
Section 9.01. Amendments. The vote of the holders of at least a majority of the shares of stock of the Company issued and outstanding and entitled to vote shall be necessary at any meeting of stockholders to amend or repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended or repealed, or new by-laws adopted, at any meeting of the Board of Directors by the vote of at least a majority of the entire Board, provided that any by-law adopted by the Board may be amended or repealed by the stockholders in the manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new by-laws shall be stated in the notice of the meeting of the Board of Directors or the stockholders or in the waiver of notice thereof, as the case may be, unless all of the directors or the holders of record of all of the shares of stock of the Company issued and outstanding and entitled to vote are present at such meeting.
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| DEUTSCHE BANK TRUST COMPANY AMERICAS 00623 |
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| New York, NY 10019 | ||||
| Board of Governors of the Federal Reserve System | OMB Number 7100-0036 | |||
| Federal Deposit Insurance Corporation | OMB Number 3064-0052 | |||
| Office of the Comptroller of the Currency | OMB Number 1557-0081 | |||
| Approval expires December 31, 2024 | ||||
| Page 1 of 87 |
Federal Financial Institutions Examination Council
|
Consolidated Reports of Condition and Income for a Bank with Domestic Offices Only—FFIEC 041 |
Report at the close of business December 31, 2022
This report is required by law: 12 U.S.C. § 324 (State member banks); 12 U.S.C. §1817 (State nonmember banks); 12 U.S.C. §161 (National banks); and 12 U.S.C. §1464 (Savings associations).
Unless the context indicates otherwise, the term “bank” in this report form refers to both banks and savings associations.
20221231
(RCON 9999)
This report form is to be filed by banks with domestic offices only and total consolidated assets of less than $100 billion, except those banks that file the FFIEC 051, and those banks that are advanced approaches institutions for regulatory capital purposes that are required to file the FFIEC 031.
NOTE: Each bank’s board of directors and senior management are responsible for establishing and maintaining an effective system of internal control, including controls over the Reports of Condition and Income. The Reports of Condition and Income are to be prepared in accordance with federal regulatory authority instructions. The Reports of Condition and Income must be signed by the Chief Financial Officer (CFO) of the reporting bank (or by the individual performing an equivalent function) and attested to by not less than two directors (trustees) for state nonmember banks and three directors for state member banks, national banks, and savings associations.
I, the undersigned CFO (or equivalent) of the named bank, attest that the Reports of Condition and Income (including the supporting
schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct to the best of my knowledge and belief.
We, the undersigned directors (trustees), attest to the correctness of the Reports of Condition and Income (including the supporting schedules) for this report date and declare that the Reports of Condition and Income have been examined by us and to the best of our knowledge and belief have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct.
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Director (Trustee) | ||
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| |
| Signature of Chief Financial Officer (or Equivalent) | Director (Trustee) | |
| 01/30/2023 |
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| Date of Signature | Director (Trustee) | |
Submission of Reports
Each bank must file its Reports of Condition and Income (Call Report) data by either:
| (a) | Using computer software to prepare its Call Report and then submitting the report data directly to the FFIEC’s Central Data Repository (CDR), an Internet-based system for data collection (https://cdr.ffiec.gov/cdr/), or |
| (b) | Completing its Call Report in paper form and arranging with a software vendor or another party to convert the data into the electronic format that can be processed by the CDR. The software vendor or other party then must electronically submit the bank’s data file to the CDR. |
For technical assistance with submissions to the CDR, please contact the CDR Help Desk by telephone at (888) CDR-3111, by fax at (703) 774-3946, or by e-mail at cdr.help@cdr.ffiec.gov.
| FDIC Certificate Number | 623 | |
| (RSSD 9050) |
To fulfill the signature and attestation requirement for the Reports of Condition and Income for this report date, attach your bank’s completed signature page (or a photocopy or a computer generated version of this page) to the hard-copy record of the data file submitted to the CDR that your bank must place in its files.
The appearance of your bank’s hard-copy record of the submitted data file need not match exactly the appearance of the FFIEC’s sample report forms, but should show at least the caption of each Call Report item and the reported amount.
| DEUTSCHE BANK TRUST COMPANY AMERICAS | ||
| Legal Title of Bank (RSSD 9017) | ||
| New York | ||
| City (RSSD 9130) | ||
| NY |
10019 | |
| State Abbreviation (RSSD 9200) | Zip Code (RSSD 9220) | |
| Legal Entity Identifier (LEI) | ||
| 8EWQ2UQKS07AKK8ANH81 | ||
| (Report only if your institution already has an LEI.) (RCON 9224) | ||
The estimated average burden associated with this information collection is 55.53 hours per respondent and is expected to vary by institution, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.
12/2022
06/2012
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
| FFIEC 041 Page 17 of 87 RC-1 |
Consolidated Report of Condition for Insured Banks
and Savings Associations for December 31, 2022
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RC—Balance Sheet
|
Dollar Amounts in Thousands |
RCON | Amount | ||||||||||||||||||||||
| Assets |
||||||||||||||||||||||||
| 1. |
Cash and balances due from depository institutions (from Schedule RC-A): | |||||||||||||||||||||||
| a. | Noninterest-bearing balances and currency and coin (1) |
|
0081 | 25,000 | 1.a. | |||||||||||||||||||
| b. Interest-bearing balances (2) | 0071 | 16,031,000 | 1.b. | |||||||||||||||||||||
| 2. |
Securities: | |||||||||||||||||||||||
| a. | Held-to-maturity securities (from Schedule RC-B, column A) (3) |
|
JJ34 | 0 | 2.a. | |||||||||||||||||||
| b. | Available-for-sale debt securities (from Schedule RC-B, column D) |
|
1773 | 708,000 | 2.b. | |||||||||||||||||||
| c. | Equity securities with readily determinable fair values not held for trading (4) |
|
JA22 | 5,000 | 2.c. | |||||||||||||||||||
| 3. |
Federal funds sold and securities purchased under agreements to resell: | |||||||||||||||||||||||
| a. Federal funds sold | B987 | 0 | 3.a. | |||||||||||||||||||||
| b. | Securities purchased under agreements to resell (5, 6) |
|
B989 | 5,918,000 | 3.b. | |||||||||||||||||||
| 4. |
Loans and lease financing receivables (from Schedule RC-C): | |||||||||||||||||||||||
| a. | Loans and leases held for sale |
|
5369 | 0 | 4.a. | |||||||||||||||||||
| b. | Loans and leases held for investment | B528 | 14,072,000 | 4.b. | ||||||||||||||||||||
| c. | LESS: Allowance for loan and lease losses | 3123 | 16,000 | 4.c. | ||||||||||||||||||||
| d. | Loans and leases held for investment, net of allowance (item 4.b minus 4.c) (7) |
|
B529 | 14,056,000 | 4.d. | |||||||||||||||||||
| 5. |
Trading assets (from Schedule RC-D) | 3545 | 0 | 5. | ||||||||||||||||||||
| 6. |
Premises and fixed assets (including capitalized leases) | 2145 | 0 | 6. | ||||||||||||||||||||
| 7. |
Other real estate owned (from Schedule RC-M) | 2150 | 0 | 7. | ||||||||||||||||||||
| 8. |
Investments in unconsolidated subsidiaries and associated companies | 2130 | 0 | 8. | ||||||||||||||||||||
| 9. |
Direct and indirect investments in real estate ventures | 3656 | 0 | 9. | ||||||||||||||||||||
| 10. |
Intangible assets (from Schedule RC-M) | 2143 | 4,000 | 10. | ||||||||||||||||||||
| 11. |
Other assets (from Schedule RC-F) (6) | 2160 | 2,445,000 | 11. | ||||||||||||||||||||
| 12. |
Total assets (sum of items 1 through 11) | 2170 | 39,192,000 | 12. | ||||||||||||||||||||
| Liabilities |
||||||||||||||||||||||||
| 13. |
Deposits: | |||||||||||||||||||||||
| a. | In domestic offices (sum of totals of columns A and C from Schedule RC-E) |
|
2200 | 26,830,000 | 13.a. | |||||||||||||||||||
| (1) Noninterest-bearing (8) | 6631 | 10,895,000 | 13.a. | (1) | ||||||||||||||||||||
| (2) Interest-bearing | 6636 | 15,935,000 | 13.a. | (2) | ||||||||||||||||||||
| b. | Not applicable | |||||||||||||||||||||||
| 14. |
Federal funds purchased and securities sold under agreements to repurchase: | |||||||||||||||||||||||
| a. | Federal funds purchased (9) | B993 | 0 | 14.a. | ||||||||||||||||||||
| b. | Securities sold under agreements to repurchase (10) |
|
B995 | 0 | 14.b. | |||||||||||||||||||
| 15. |
Trading liabilities (from Schedule RC-D) | 3548 | 0 | 15. | ||||||||||||||||||||
| 16. |
Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M) | 3190 | 111,000 | 16. | ||||||||||||||||||||
| 17. |
and 18. Not applicable | |||||||||||||||||||||||
| 19. |
Subordinated notes and debentures (11) | 3200 | 0 | 19. | ||||||||||||||||||||
| 1. | Includes cash items in process of collection and unposted debits. |
| 2. | Includes time certificates of deposit not held for trading. |
| 3. | Institutions that have adopted ASU 2016-13 should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-B, item 8, column A, less Schedule RI-B, Part II, item 7, column B. |
| 4. | Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for “Securities Activities” for further detail on accounting for investments in equity securities. |
| 5. | Includes all securities resale agreements, regardless of maturity. |
| 6. | Institutions that have adopted ASU 2016-13 should report in items 3.b and 11 amounts net of any applicable allowance for credit losses. |
| 7. | Institutions that have adopted ASU 2016-13 should report in item 4.c the allowance for credit losses on loans and leases. |
| 8. | Includes noninterest-bearing demand, time, and savings deposits. |
| 9. | Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” |
| 10. | Includes all securities repurchase agreements, regardless of maturity. |
| 11. | Includes limited-life preferred stock and related surplus. |
12/2022
06/2012
DEUTSCHE BANK TRUST COMPANY AMERICAS
00623
New York, NY 10019
| FFIEC 041 Page 18 of 87 RC-2 |
Schedule RC—Continued
| Dollar Amounts in Thousands |
RCON | Amount | ||||||||||||
| Liabilities—continued |
||||||||||||||
| 20. |
Other liabilities (from Schedule RC-G) | 2930 | 2,772,000 | 20. | ||||||||||
| 21. |
Total liabilities (sum of items 13 through 20) | 2948 | 29,713,000 | 21. | ||||||||||
| 22. |
Not applicable | |||||||||||||
| Equity Capital |
||||||||||||||
| Bank Equity Capital | ||||||||||||||
| 23. |
Perpetual preferred stock and related surplus | 3838 | 0 | 23. | ||||||||||
| 24. |
Common stock | 3230 | 2,127,000 | 24. | ||||||||||
| 25. |
Surplus (exclude all surplus related to preferred stock) | 3839 | 939,000 | 25. | ||||||||||
| 26. |
a. Retained earnings | 3632 | 6,462,000 | 26.a. | ||||||||||
| b. Accumulated other comprehensive income (1) | B530 | (49,000 | ) | 26.b. | ||||||||||
| c. Other equity capital components (2) | A130 | 0 | 26.c. | |||||||||||
| 27. |
a. Total bank equity capital (sum of items 23 through 26.c) | 3210 | 9,479,000 | 27.a. | ||||||||||
| b. Noncontrolling (minority) interests in consolidated subsidiaries | 3000 | 0 | 27.b. | |||||||||||
| 28. |
Total equity capital (sum of items 27.a and 27.b) | G105 | 9,479,000 | 28. | ||||||||||
| 29. |
Total liabilities and equity capital (sum of items 21 and 28) | 3300 | 39,192,000 | 29. | ||||||||||
| Memoranda | ||||||||||||||
| To be reported with the March Report of Condition. | ||||||||||||||
| 1. |
Indicate in the box at the right the number of the statement below that best describes the most | |||||||||||||
| comprehensive level of auditing work performed for the bank by independent external auditors as of | RCON | Number | ||||||||||||
| any date during 2021 | 6724 | NA | M.1. | |||||||||||
| 1a = | An integrated audit of the reporting institution’s financial statements and its internal control over financial reporting conducted in accordance with the standards of the American Institute of Certified Public Accountants (AICPA) or Public Company Accounting Oversight Board (PCAOB) by an independent public accountant that submits a report on the institution |
| 1b = | An audit of the reporting institution’s financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the institution |
| 2a = | An integrated audit of the reporting institution’s parent holding company’s consolidated financial statements and its internal control over financial reporting conducted in accordance with the standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
| 2b = | An audit of the reporting institution’s parent holding company’s consolidated financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) |
| 3 = | This number is not to be used |
| 4 = | Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state-chartering authority) |
| 5 = | Directors’ examination of the bank performed by other external auditors (may be required by state-chartering authority) |
| 6 = | Review of the bank’s financial statements by external auditors |
| 7 = | Compilation of the bank’s financial statements by external auditors |
| 8 = | Other audit procedures (excluding tax preparation work) |
| 9 = | No external audit work |
| To be reported with the March Report of Condition. |
RCON | Date | ||||||||||||
| 2. | Bank’s fiscal year-end date (report the date in MMDD format) | 8678 | NA | M.2. | ||||||||||
| 1. | Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments. |
| 2. | Includes treasury stock and unearned Employee Stock Ownership Plan shares. |
06/2012