Vodafone Group Public Ltd Co F-3ASR, filed Jul 29, 2020
Vodafone Group Public Ltd Co (VOD)
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TABLE OF CONTENTS
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VODAFONE GROUP PUBLIC LIMITED COMPANY
(Exact Name of Registrant as Specified in its Charter)
ENGLAND AND WALES
(State or Other Jurisdiction of Incorporation or Organisation)
Not Applicable
(I.R.S. Employer Identification No.)
Vodafone House
The Connection
Newbury, Berkshire
RG14 2FN England
Tel. No.: 011-44-1635-33251
(Address and Telephone Number of Registrant's Principal Executive Offices)
C T Corporation System
28 Liberty Street, New York, NY 10005
Tel. No.: 212-894-8940
(Name, Address and Telephone Number of Agent for Service)
Please send copies of all communications to:
| Michael Z. Bienenfeld | Rosemary E.S. Martin | Pierre-Marie Boury | ||
| Linklaters LLP | Vodafone Group Public Limited Company | Cleary Gottlieb Steen & Hamilton LLP | ||
| One Silk Street | Vodafone House | 2 London Wall Place | ||
| London EC2Y 8HQ | The Connection | London EC2Y 5AU | ||
| England | Newbury, Berkshire RG14 2FN | England | ||
| Tel. No. 011-44-20-7456-3660 | England | Tel. No.: 011-44-20-7614-2200 | ||
| Tel. No.: 011-44-1635-33251 |
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. o
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, please check the following box. ý
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. o
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. o
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. ý
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. o
Indicate by check mark whether the registrant is an emerging growth company as defned in Rule 405 of the Securities Act of 1933.
Emerging growth company o
If an emerging growth company that prepares its fnancial 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 fnancial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
|
||||
| Title of Each Class of Securities to be Registered |
Amount to be Registered/ Proposed Maximum Aggregate Price per Unit/ Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
||
|---|---|---|---|---|
Debt Securities(1) |
||||
Warrants(1) |
(2) | $0.00(2) | ||
Preference Shares(1) |
||||
|
||||
Notes:- (1)
- Also
includes such indeterminate amounts of Debt Securities, Warrants and Preference Shares as may be issued upon conversion of, or in exchange for, any securities
that provide for conversion or exchange into Debt Securities, Warrants or Preference Shares.
- (2)
- An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units. In accordance with Rules 456(b) and 457(r), the Registrant is deferring payment of all of the registration fee.
- †
- 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.
Vodafone Group Public Limited Company
Debt Securities
Warrants
Preference Shares
We may offer and sell debt securities, warrants, or preference shares from time to time. Each time we sell any of 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. You should read this prospectus and any applicable prospectus supplement(s) carefully before you invest.
We may sell these securities to or through underwriters, agents or dealers, or directly to one or more purchasers. The names of any underwriters or agents will be stated in an accompanying prospectus supplement.
Investing in these securities involves certain risks. See "Risk Factors" on page 6 and "Risk Factors" in our most recent Annual Report on Form 20-F, as well as any contained in the applicable prospectus supplement.
Neither the U.S. Securities and Exchange Commission nor any other 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 July 29, 2020
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Vodafone Group Plc, or "Vodafone", is one of the world's leading technology communications companies. Vodafone is focused on two scaled and differentiated regional platforms in Europe and Africa. The Group operates mobile and fixed networks in 22 countries and partners with mobile networks in 43 more. As at March 31, 2020 Vodafone had over 300 million mobile customers, more than 27 million fixed broadband customers and over 22 million TV customers. Vodafone generated revenues of €45.0 billion in the financial year ended March 31, 2020. Vodafone's ordinary shares are listed on the London Stock Exchange plc and the Group's American Depositary Shares are listed on The NASDAQ Global Select Market. The Group had a total market capitalization of approximately £30.3 billion at March 31, 2020.
The Group's principal executive office is located at Vodafone House, The Connection, Newbury, Berkshire, RG14 2FN, England, and its telephone number is (011 44) 1635 33251. You can find a more detailed description of the Group's business and recent transactions in Vodafone Group Plc's Annual Report on Form 20-F, which is incorporated by reference in this prospectus.
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An investment in the securities involves significant risk. You should read the risk factors set forth under the caption "Principal risk factors and uncertainties" in our Annual Report on Form 20-F for the year ended March 31, 2020, which is incorporated by reference in this prospectus, or similar sections in subsequent filings incorporated by reference in this prospectus, for a discussion of certain factors you should consider before investing in our securities. You should also read any risk factors included in any prospectus supplement related to a specific offering of our securities.
Risks Associated with the Securities
We may, under the terms of the indenture, carry out an internal reorganization of Vodafone. The indenture relating to the debt securities permits us to effect an internal reorganization without the consent of holders of our debt securities, even if this affects the credit rating of the debt securities or gives us the option to redeem the notes.
Under the indenture, if we transfer our assets to another entity, that entity would be required either to assume the obligations of Vodafone under the debt securities or to provide a full and unconditional guarantee of those obligations. If a guarantee were to be provided, the original issuer (Vodafone) would have no assets other than a receivable from the guarantor in the amount of the debt securities and thus no ability to generate revenue to make payments of interest and principal on the debt securities. Holders of the debt securities would then effectively need to look exclusively to the guarantor for any such payments. The consent of holders of our debt securities would not be required in connection with such a reorganization transaction.
The indenture contains no restrictions on the legal or financial characteristics of the transferee and no restrictions addressing the potential effects of any reorganization transaction on Vodafone or the debt securities. In particular, the indenture would not prohibit such a transaction if it resulted in the credit rating assigned to Vodafone or the debt securities being downgraded by any rating agency or caused additional amounts to become payable in respect of withholding tax on the debt securities. A downgrade of the credit rating could adversely affect the trading prices of the debt securities and, possibly, the liquidity of the market for the debt securities. If additional amounts become payable in respect of withholding tax, the debt securities will thereafter be subject to redemption at our option (or the option of the transferee entity) at any time, as described on page 17 under "Description of Debt Securities We May Offer—Special Situations—Optional Tax Redemption". We have no obligation under the indenture to seek to avoid these results, or any other legal or financial effects that are disadvantageous to you, in connection with a reorganization transaction that is permitted under the indenture, and there can be no assurance that they will not occur.
If we fail to maintain a listing on a "recognized stock exchange", interest on our debt securities may be subject to UK withholding tax, and our liquidity and financial position may be adversely affected by the requirement to pay additional amounts on our debt securities.
Interest payable on our debt securities on or after the date of this prospectus will be paid free of UK withholding tax if we maintain a listing of the debt securities on a "recognized stock exchange" within the meaning of Section 1005 of the UK Income Tax Act 2007. We may apply for listing of the debt securities on any "recognized stock exchange", including the London Stock Exchange plc or the NASDAQ Global Market, each of which is currently designated as a "recognized stock exchange". The inability to list the debt securities or to maintain such a listing may have an adverse effect on our liquidity and financial position by reason of our obligation to pay such additional amounts as may be necessary so that the net amount received by the holders after such reduction will not be less than the amount the holder would have received in the absence of such withholding or deduction. While if we apply for such a listing we will use our best efforts to obtain and maintain such a listing, as needed, we cannot guarantee that we will be successful. See "Description of the Debt Securities We May Offer—Payment of Additional Amounts" and "Taxation—United Kingdom Taxation".
The debt securities, warrants and preference shares lack a developed public market.
There can be no assurance regarding the future development of a market for the debt securities, warrants or preference shares or the ability of holders of the debt securities, warrants or preference shares to sell their debt securities, warrants or preference shares or the price at which such holders may be able to sell their debt securities, warrants or preference shares. If such a market were to develop, the debt securities, warrants or preference shares could trade at prices that may be higher or lower than the initial offering
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price depending on many factors, including, among other things, prevailing interest rates, our operating results and the market for similar securities. Underwriters, broker-dealers and agents that participate in the distribution of the debt securities, warrants or preference shares may make a market in the debt securities, warrants or preference shares as permitted by applicable laws and regulations but will have no obligation to do so, and any such market-making activities with respect to the debt securities, warrants or preference shares may be discontinued at any time without notice. Therefore, there can be no assurance as to the liquidity of any trading market for the debt securities, warrants or preference shares or that an active public market for the debt securities, warrants or preference shares will develop. See "Plan of Distribution" on page 66. We may apply for listing of the debt securities, warrants or preference shares on the Official List of the UK Financial Conduct Authority and for trading of the debt securities, warrants or preference shares on the London Stock Exchange plc, and for listing of the debt securities, warrants or preference shares on the NASDAQ Global Market, or on any other "recognized stock exchange".
If we default on our debt securities your right to receive payments on such debt securities may be adversely affected by English insolvency laws
We are incorporated under the laws of England and Wales. Accordingly, insolvency proceedings with respect to us would be likely to proceed under, and be governed by, English insolvency law. The procedural and substantive provisions of English insolvency laws generally are more favorable to secured creditors than comparable provisions of United States law. These provisions afford debtors and unsecured creditors only limited protection from the claims of secured creditors and it will generally not be possible for us or other unsecured creditors to prevent or delay the secured creditors from enforcing their security to repay the debts due to them under the terms that such security was granted to them.
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This prospectus is part of a registration statement that we filed on July 29, 2020 with the U.S. Securities and Exchange Commission, or the "SEC", using the shelf registration 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 that we may offer. Each time we sell securities, we will provide one or more prospectus supplements that will contain specific information about the terms of those securities and their offering. The prospectus supplements may also add, update or change information contained in this prospectus. You should read both this prospectus and any applicable prospectus supplement(s) together with the additional information described on page 9 under the heading "Where You Can Find More Information" prior to purchasing any of the securities offered by this prospectus.
Unless otherwise stated in this prospectus or unless the context otherwise requires, references in this prospectus to "we", "our", "us", "Vodafone" or "the Company" are to Vodafone Group Plc. References to "the Group" are to Vodafone Group Plc, its subsidiaries and, where the context requires, its interests in joint ventures and associated undertakings.
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the U.S. Securities Exchange Act of 1934 (the "Exchange Act"), applicable to a foreign private issuer and, in accordance with these requirements, file annual and special reports and other information with the SEC. You may access documents we file with the SEC on the SEC website at www.sec.gov. You may also access the SEC filings and obtain other information about Vodafone through the website maintained by Vodafone at www.vodafone.com. The information contained in those websites is not incorporated by reference in, or in any way part of, this prospectus.
Our ordinary shares are listed on the London Stock Exchange plc. Our American Depositary Shares, referred to as ADSs, are listed on the NASDAQ Global Select Market. You can consult reports and other information about us that we have filed pursuant to the NASDAQ Listing Rules at such exchange.
The SEC allows us to incorporate by reference the information we file with them, which means that:
- •
- incorporated documents are considered part of this prospectus;
- •
- we can disclose important information to you by referring to those documents; and
- •
- information that we file with the SEC in the future and incorporate by reference herein will automatically update and supersede information in this prospectus and information previously incorporated by reference herein.
The information that we incorporate by reference is an important part of this prospectus.
Each document incorporated by reference is current only as of the date of such document, and the incorporation by reference of such documents shall not create any implication that there has been no change in the affairs of Vodafone Group Plc since the date thereof or that the information contained therein is current as of any time subsequent to its date. Any statement contained in such incorporated documents shall be deemed to be modified or superseded for the purpose of this prospectus to the extent that a subsequent statement contained in another document we incorporate by reference at a later date modifies or supersedes that statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We incorporate by reference the documents below filed with the SEC by Vodafone Group Plc pursuant to the Exchange Act. We also incorporate by reference any future filings that we make with the SEC under Sections 13(a), 13(c) or 15(d) of the Exchange Act. Our reports on Form 6-K (or portions thereof) furnished to the SEC after the date of this prospectus are incorporated by reference in this prospectus only to the extent that the reports on Form 6-K expressly state that we incorporate them (or such portions) by reference in this prospectus.
The documents incorporated by reference herein in the future and set forth below contain important information about us and our financial condition.
Vodafone SEC Filings (File No. 001-10086)
|
Period | |
|---|---|---|
| Annual Report on Form 20-F | Year ended March 31, 2020. |
You can obtain copies of any of the documents incorporated by reference through Vodafone or the SEC. Documents incorporated by reference are available without charge, excluding all exhibits unless an exhibit has been specifically incorporated by reference into this prospectus. You may obtain Vodafone documents incorporated by reference into this prospectus, at no cost, by requesting them in writing or by telephone at the following address and telephone number:
Company
Secretary's and Legal Department
Vodafone Group Public Limited Company
Vodafone House
The Connection
Newbury, Berkshire
RG14 2FN, England
(011 44) 1635 33251
The audited consolidated financial statements included in our Annual Report on Form 20-F for the year ended March 31, 2020 have been prepared in accordance with International Financial Reporting Standards ("IFRS") as issued by the International Accounting Standards Board ("IASB"). Financial statements
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prepared in accordance with IFRS as issued by IASB are accepted in filings with the SEC without reconciliation to generally accepted accounting principles in the United States.
You should rely only on the information that we incorporate by reference or provide in this prospectus or any applicable prospectus supplement(s). We have not authorized anyone to provide you with different information. We are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents.
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This prospectus contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 with respect to the Group's financial condition, results of operations and businesses and certain of the Group's plans and objectives.
In particular, such forward-looking statements include, but are not limited to, statements with respect to:
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- the Group's expectations regarding its financial condition and operating performance;
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- intentions and expectations regarding the development, launch and expansion of products, services and technologies, either introduced by
Vodafone, or by Vodafone in conjunction with third parties or by third parties independently, including 5G networks, sharing infrastructure and its benefits, sharing mobile networks in Europe, and the
expansion of NGN broadband within Vodafone's European footprint;
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- expectations regarding the operating environment and market conditions and trends, including customer usage, competitive position and
macroeconomic pressures, spectrum auctions and awards, price trends and opportunities in specific geographic markets;
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- expectations and guidance regarding the Group's organic adjusted EBITDA, free cash flow pre-spectrum, free cash flow, foreign exchange rates,
tax rates, operating expenses and financial leverage and the Group's future performance generally, including growth and capital expenditure;
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- expectations regarding the integration or performance of current and future investments, associates, joint ventures, non-controlled interests
and newly acquired businesses, including in respect of the Group's sale of its 55% shareholding in Vodafone Egypt and the sale of Vodafone Malta, and the LTM adjusted EBITDA and adjusted operating
free cash flow multiples therefrom, the operationalization of European tower infrastructure businesses and the Infrastrutture Wireless Italiane S.p.A. merger, and the integration of the
acquired Liberty Global plc assets; and
- •
- the outcome and impact of regulatory and legal proceedings involving the Group and of scheduled or potential legislative and regulatory changes, including approvals, reviews and consultations.
Forward-looking statements are sometimes, but not always, identified by their use of a date in the future or such words as "will", "anticipates", "aims", "could", "may", "should", "expects", "believes", "intends", "plans", "prepares" or "targets" (including in their negative form or other variations). By their nature, forward-looking statements are inherently predictive, speculative and involve risk and uncertainty because they relate to events and depend on circumstances that may or may not 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. These factors include, but are not limited to, the following:
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- general economic and political conditions, including as a consequence of the COVID-19 pandemic, in the jurisdictions in which the Group
operates, including as a result of Brexit, and changes to the associated legal, regulatory and tax environments;
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- the Group's ability to generate and grow revenue;
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- developments in the Group's financial condition, earnings and distributable funds and other factors that the Group's board of directors takes
into account in determining the level of dividends;
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- external cyber-attacks insider threats or supplier breaches;
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- the Group's ability to secure the timely delivery of high quality products from suppliers;
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- loss of suppliers, disruption of supply chains and greater than anticipated prices of new mobile handsets;
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- changes in the costs to the Group of, or the rates the Group may charge for, terminations and roaming minutes;
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- changes in the regulatory framework in which the Group operates;
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- changes in foreign exchange rates;
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- changes in statutory tax rates and profit mix.
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- the impact of a failure or significant interruption to the Group's telecommunications, networks, IT systems or data protection systems;
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- acquisitions and divestments of Group businesses and assets and the pursuit of new, unexpected strategic opportunities;
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- the Group's ability to integrate acquired business or assets;
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- rapid changes to existing products and services and the inability of new products and services to perform in accordance with expectations;
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- the ability of the Group to integrate new technologies, products and services with existing networks, technologies, products and services;
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- a lower than expected impact of new or existing products, services or technologies on the Group's future revenue, cost structure and capital
expenditure outlays;
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- the Group's ability to expand its spectrum position, win 3G, 4G and 5G allocations and realize expected synergies and benefits associated with
3G, 4G and 5G;
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- levels of investment in network capacity and the Group's ability to deploy new technologies, products and services;
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- the Group's ability to realize expected benefits from acquisitions, partnerships, joint ventures, franchises, brand licenses, platform sharing
or other arrangements with third parties;
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- the extent of any future write-downs or impairment charges on the Group's assets, or restructuring charges incurred as a result of an
acquisition or disposition;
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- increased competition;
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- increased disintermediation;
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- slower than expected customer growth, reduced customer retention, reductions or changes in customer spending and increased pricing pressure;
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- the impact of legal or other proceedings against the Group or other companies in the communications industry; and
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- the Group's ability to satisfy working capital requirements.
A review of the reasons why actual results and developments may differ materially from the expectations disclosed or implied within forward-looking statements can be found under "Principal risk factors and uncertainties" on pages 62 to 71 of the Group's Annual Report on Form 20-F for the year ended March 31, 2020. All subsequent written or oral forward-looking statements attributable to the Company or any member of the Group or any persons acting on their behalf are expressly qualified in their entirety by the factors referred to above. No assurances can be given that the forward-looking statements in this prospectus will be realized. Subject to compliance with applicable law and regulations, Vodafone does not intend to update these forward-looking statements and does not undertake any obligation to do so.
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Unless otherwise indicated in an accompanying prospectus supplement, we expect to use the net proceeds from the sale of the securities for general corporate purposes. General corporate purposes may include working capital, the repayment of existing debt (including debt of acquired companies), financing capital investments or acquisitions and any other purposes that may be stated. We may temporarily invest funds that we do not need immediately for these purposes in short-term marketable securities.
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DESCRIPTION OF DEBT SECURITIES WE MAY OFFER
Indenture
The bonds and notes described herein will be governed by an indenture. The indenture is a contract entered into between us and The Bank of New York Mellon, which acts as trustee. The trustee has two main roles:
- •
- First, the trustee can enforce your rights against us if we default, although there are some limitations on the extent to which the trustee
acts on your behalf that are described on page 32 under "—Default and Related Matters—Events of Default—Remedies If an Event of Default Occurs"; and
- •
- Second, the trustee performs administrative duties for us, such as sending interest payments and notices to you and transferring your debt securities to a new buyer if you sell.
The indenture and its associated documents contain the full legal text of the matters described in this section. New York law governs the indenture and the debt securities, except for certain events of default described in the indenture, which are governed by English law. We have filed a copy of the indenture with the SEC as an exhibit to our registration statement.
Section references below refer to sections of the indenture, between Citibank, N.A. and us, dated as of 10 February 2000. The Bank of New York Mellon has become the successor trustee to Citibank pursuant to an Agreement of Resignation, Appointment and Acceptance, dated as of 24 July 2007, by and among the Company, The Bank of New York Mellon and Citibank.
Types of Debt Securities
Overview
We may issue as many distinct series of debt securities under our indenture as we wish. 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.
Because this section is a summary, it does not describe every aspect of the debt securities. This summary is subject to and qualified in its entirety by reference to all the provisions of the indenture, including the definition of various terms used in the indenture. For example, we describe the meanings for only the more important terms that have been given special meanings in the indenture. We also include references in parentheses to some sections of the indenture. Whenever we refer to particular sections or defined terms of the indenture in this prospectus or in any prospectus supplement, those sections or defined terms are incorporated by reference herein or in such prospectus supplement.
We may issue the debt securities as fixed rate debt securities, which are debt securities that bear interest at a fixed rate described in the applicable prospectus supplement, or floating rate debt securities, which are debt securities that bear interest at rates that are determined by reference to an interest rate formula. In some cases, the rates may also be adjusted by adding or subtracting a spread or multiplying by a spread multiplier and may be subject to a minimum rate or a maximum rate. The various interest rate formulas and these other features are described below under "—Interest rates". In addition, we may issue the debt securities as original issue discount securities, which are debt securities that are offered and sold at a substantial discount to their stated principal amount. (Section 101) We may also issue the debt securities as indexed securities or securities denominated in foreign currencies, currency units or composite currencies, as described in more detail in the prospectus supplement relating to any such debt securities. We may, at our option, at any time and without the consent of the then existing holders of any series of notes, issue additional notes under such series in one or more transactions with terms (other than the issuance date and, possibly, issue price, the initial interest accrual date and the first interest payment date) identical to those with which such series was first issued; provided that such additional notes will be issued with no more than de minimis original issue discount for U.S. federal income tax purposes or be part of a qualified reopening for U.S. federal income tax purposes. These additional notes will be deemed to be part of the same series as the notes first issued and the holders of these additional notes will have the right to vote together with holders of the notes first issued. We will describe the material UK and U.S. federal income tax consequences and any other special considerations applicable to indexed securities and further issuances of debt securities fungible with the same series in the applicable prospectus supplement(s).
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Terms of a Particular Series of Debt Securities
The material financial, legal and other terms particular to a series of debt securities will be described in the prospectus supplement(s) relating to that 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 described in the applicable prospectus supplement(s).
The prospectus supplement relating to a series of debt securities will describe the following terms of the series:
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- the title of the debt securities of the series;
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- any limit on the aggregate principal amount of the debt securities of the series (including any provision for the future offering of additional
debt securities of the series beyond any such limit);
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- whether the debt securities will be issued in registered or bearer form;
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- the date or dates on which the debt securities of the series will mature and any other date or dates on which we will pay the principal of the
debt securities of the series;
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- the annual rate or rates, which may be fixed or variable, at which the debt securities will bear interest, if any, and the date or dates from
which that interest will accrue;
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- the date or dates on which any interest on the debt securities of the series will be payable and the regular record date or dates we will use
to determine who is entitled to receive interest payments;
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- the place or places where the principal and any premium and interest in respect of the debt securities of the series will be payable;
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- the payment of any additional amounts on the debt securities;
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- any period or periods during which, and the price or prices at which, we will have the option to redeem or repurchase the debt securities of
the series and the other material terms and provisions applicable to our redemption or repurchase rights;
- •
- any obligation we will have to redeem or repurchase the debt securities of the series, the period or periods during which, and the price or
prices at which, we would be required to redeem or repurchase the debt securities of the series and the other material terms and provisions applicable to our redemption or repurchase obligations;
- •
- if other than $1,000 or an even multiple of $1,000, the denominations in which the series of debt securities will be issuable;
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- if other than the currency of the United States, the currency in which the debt securities of the series will be denominated or in which the
principal or any premium or interest on the debt securities of the series will be payable;
- •
- if we or you have a right to choose the currency, currency unit or composite currency in which payments on any of the debt securities of the
series will be made, the currency, currency unit or composite currency that we or you may elect, the period during which we or you must make the election and the other material terms applicable to the
right to make such elections;
- •
- if other than the full principal amount, the portion of the principal amount of the debt securities of the series that will be payable upon a
declaration of acceleration of the maturity of the debt securities of the series;
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- any index or other special method we will use to determine the amount of principal or any premium or interest on the debt securities of the
series;
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- the applicability of the provisions described on page 30 under "—Defeasance and Discharge";
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- if we issue the debt securities of the series in whole or part in the form of global securities as described on page 44 under "Legal
Ownership—Global Securities", the name of the depositary with respect to the debt securities of the series, and the circumstances under which the global securities may be registered in the
name of a person other than the depositary or its nominee if other than those described on page 45 under "Legal Ownership—Global Securities—Special Situations in Which a Global
Security Will Be Terminated";
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- any covenants to which we will be subject with respect to the debt securities of the series; and
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- •
- any other special features of the debt securities of the series that are not inconsistent with the provisions of the indenture.
In addition, the prospectus supplement will state whether we will list the debt securities of the series on any stock exchanges and, if so, which one(s).
Unless otherwise specified in the applicable prospectus supplement, the following terms will apply to a series of debt securities:
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- Ranking
The debt securities will rank equally with all our present and future unsecured and unsubordinated indebtedness. However, because we are a holding company, the debt securities will effectively rank junior to any indebtedness or other liabilities of our subsidiaries.
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- Business days
A business day will be any day that is a New York business day, a London business day and/or a Euro business day, as specified in the applicable prospectus supplement. "London business day" means any day on which dealings in U.S. dollars are transacted in the London interbank market. "New York business day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City generally are authorized or obligated by law, regulation or executive order to close. "Euro business day" means each Monday, Tuesday, Wednesday, Thursday and Friday on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System, or any successor system, is open for business.
- •
- Business day convention
With respect to fixed rate debt securities, if any interest payment date (other than the maturity date) would otherwise be a day that is not a business day, the relevant interest payment date will be postponed to the next day that is a business day. With respect to floating rate debt securities, if any interest reset date or interest payment date (other than the maturity date) would otherwise be a day that is not a business day, the relevant date will be postponed to the next day that is a business day. However, if that date would fall in the next succeeding calendar month, such date will be the immediately preceding business day.
- •
- Calculation agent
All calculations relating to a series of floating rate debt securities will be made by the calculation agent, an institution that we appoint as our agent for this purpose. The calculation agent will determine on each interest determination date the interest rate that takes effect on the applicable interest reset date. In addition, the calculation agent will calculate the amount of interest that has accrued during each interest period. Upon request, the calculation agent will provide notice of the interest rate then in effect and, if determined, the interest rate that will become effective on the next interest reset date. The calculation agent's determination of any interest rate, and its calculation of the amount of interest for any interest period, will be final and binding in the absence of manifest error. All percentages resulting from any calculation relating to a note will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or 0.09876541) being rounded down to 9.87654% (or 0.0987654) and 9.876545% (or 0.09876545) being rounded up to 9.87655% (or 0.0987655)). All amounts used in or resulting from any calculation will be rounded upward or downward, as appropriate, to the nearest cent. The calculation agent for a particular series will be named in the prospectus supplement that establishes that series.
- •
- Day count fraction
We will compute interest on fixed rate debt securities on the basis of a 360-day year of twelve 30-day months. In the case of floating rate debt securities, the calculation agent will calculate the amount of interest that has accrued during each interest period—i.e., the period from and including the original issue date, or the last date to which interest has been paid or made available for payment, to, but excluding, the payment date. For each such interest period, the calculation agent will calculate the amount of accrued interest by multiplying the face amount of the floating rate debt security by the applicable interest rate and an accrued interest factor for the interest period. This factor will be
16
determined in accordance with the day count convention specified in the applicable prospectus supplement. If "Actual/360 (ISDA)", "Act/360 (ISDA)" or "A/360 (ISDA)" is specified, the factor will be equal to the number of days in the interest period divided by 360.
- •
- Regular record dates for interest
With respect to each interest payment date, the regular record date for interest on global securities in registered form will be the close of business on the Clearing System Business Day immediately prior to the date for payment, where the term "Clearing System Business Day" means Monday to Friday inclusive except December 25 and January 1. The regular record date for interest on debt securities that are represented by physical certificates will be the date that is 15 calendar days prior to such date, whether or not such date is a business day.
- •
- Payment of additional amounts
All payments on the debt securities will be made without deducting UK withholding taxes (except as required by law). If any deduction is required on payments to non-UK investors, we will pay additional amounts on those payments to the extent described on page 28 under "—Payment of Additional Amounts".
- •
- Redemption or Repurchase following a Change of Control
If a Change of Control Put Option (as defined below) is specified in the prospectus supplement and, at any time while any of the debt securities remain outstanding, a Change of Control Put Event (as defined below) occurs, then the holder of each such debt security will have the option (as described on page 26 under "—Additional Mechanics—Redemption or Repurchase Following a Change of Control") to require Vodafone to redeem or, at Vodafone's option, purchase (or procure the purchase of) that debt security, according to the terms and limitations described under "—Additional Mechanics—Redemption or Repurchase Following a Change of Control".
- •
- Optional tax redemption
We may redeem any or all of the debt securities before they mature if we are obligated to pay additional amounts due to changes on or after the date specified in the applicable prospectus supplement in UK withholding tax requirements, a merger or consolidation with another entity or a sale or lease of substantially all our assets and other limited circumstances described on page 28 under "—Payment of Additional Amounts". In that event, we may redeem any or all of the tranches of the debt securities in whole but not in part on any interest payment date, at a price equal to 100% of their principal amount plus accrued interest to the date fixed for redemption.
- •
- Optional make-whole redemption
If the debt securities are fixed rate debt securities, we may redeem the debt securities, in whole or in part, at any time and from time to time at a redemption price equal to the greater of (1) 100% of the principal amount of such notes plus accrued interest to the date of redemption and (2) as determined by the quotation agent, the sum of the present values of the remaining scheduled payments of principal and interest on such notes (excluding any portion of such payments of interest accrued as of the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the adjusted treasury rate, plus the applicable spread, together with accrued interest to the date of redemption.
- •
- Adjusted treasury rate
Adjusted treasury rate means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the comparable treasury issue, assuming a price for the comparable treasury issue (expressed as a percentage of its principal amount) equal to the comparable treasury price for such redemption date. Comparable treasury issue means the U.S. Treasury security selected by the quotation agent as having a maturity comparable to the remaining term of such notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining terms of such notes. Comparable treasury price means, with respect to any redemption date, the average of the reference treasury dealer quotations for such redemption date. Quotation
17
agent means the reference treasury dealer appointed by us. Reference treasury dealer means any primary U.S. government securities dealer in New York City selected by us. Reference treasury dealer quotations means with respect to each reference treasury dealer and any redemption date, the average, as determined by the quotation agent, of the bid and asked prices for the comparable treasury issue (expressed as a percentage of its principal amount) quoted in writing to the quotation agent by such reference treasury dealer at 5.00 p.m. Eastern Standard Time on the third business day preceding such redemption date.
- •
- Listing
We may file an application to list the debt securities on the London Stock Exchange plc or The NASDAQ Global Market, or on any other "recognized stock exchange".
Interest rates
We currently expect to issue floating rate debt securities that bear interest at rates based on one or more of the following base rates:
- •
- LIBOR;
- •
- EURIBOR; or
- •
- any other interest rates (which may include a combination of more than one of the interest rate bases described above) as may be described in the applicable prospectus supplement.
LIBOR
A LIBOR debt security is a floating rate debt security that will bear interest at a base rate equal to LIBOR, which will be the London interbank offered rate for deposits in U.S. dollars or any other index currency, as specified in the applicable prospectus supplement. In addition, the applicable LIBOR base rate will be adjusted by the spread or spread multiplier, if any, specified in the applicable prospectus supplement.
LIBOR will be determined in the following manner:
- •
- LIBOR will be the arithmetic mean of the offered rates appearing on the Reuters LIBOR page, unless that page by its terms cites only one rate,
in which case that rate; in either case, as of 11.00 a.m., London time, on the relevant interest determination date, for deposits of the relevant index currency having the relevant index
maturity beginning on the relevant interest reset date. The applicable prospectus supplement will indicate the index currency, the index maturity and the reference page that apply to the debt
security.
- •
- If fewer than two of the rates described above appear on the Reuters LIBOR page or no rate appears on any page on which only one rate normally
appears, then LIBOR will be determined on the basis of the rates, at approximately 11.00 a.m., London time, on the relevant interest determination date, at which deposits of the following kind
are offered to prime banks in the London interbank market by four major banks in that market selected by us: deposits of the index currency having the relevant index maturity, beginning on the
relevant interest reset date and in a representative amount. We will request the principal London office of each of these banks to provide a quotation of its rate and we will promptly furnish such
quotations to the calculation agent. If at least two quotations are provided, LIBOR for the relevant interest determination date will be the arithmetic mean of the quotations.
- •
- If fewer than two quotations are provided as described in the preceding paragraph, LIBOR for the relevant interest determination date will be
the arithmetic mean of the rates for loans of the following kind to leading European banks quoted, at approximately 11.00 a.m., in the principal financial center for the country of the index
currency, on that interest determination date, by three major banks in that financial center selected by us: loans of the index currency having the relevant index maturity, beginning on the relevant
interest reset date and in a representative amount. We will request each such bank in the relevant financial center to provide a quotation of its rate and we will promptly furnish such quotations to
the calculation agent.
- •
- If fewer than three banks selected by us are quoting as described above, LIBOR for the new interest period will be LIBOR in effect for the prior interest period. If the initial base rate has been in effect for the prior interest period, however, it will remain in effect.
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The reference banks and dealers employed by us in determining the base rate may include the calculation agent and its affiliates.
Notwithstanding the above, if we or our designee determine on or prior to the relevant interest determination date that a Benchmark Transition Event and its related Benchmark Replacement Date (as defined below) have occurred with respect to the then-current Benchmark, then (i) we shall promptly provide notice of such determination to the calculation agent and (ii) the provisions set forth below under the heading "Effect of Benchmark Transition Event" (the "benchmark transition provisions") will thereafter apply to all determinations, calculations and quotations made or obtained for the purposes of calculating the rate and amount of interest payable on the floating rate notes during a relevant interest period.
Effect of Benchmark Transition Event
Benchmark Replacement. If we or our designee determine that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any determination of the Benchmark on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the LIBOR debt securities in respect of such determination on such date and all determinations on all subsequent dates.
Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, we or our designee will have the right to make Benchmark Replacement Conforming Changes from time to time.
Decisions and Determinations. Any determination, decision, election or calculation that may be made by us or our designee pursuant to the benchmark transition provisions described herein, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error, may be made in our or our designee's sole discretion, and, notwithstanding anything to the contrary in any documentation relating to the LIBOR debt securities, shall become effective without consent from the holders of the LIBOR debt securities or any other party.
Certain defined terms. As used herein:
"Benchmark" means, initially, LIBOR; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR or the then-current Benchmark, then "Benchmark" means the applicable Benchmark Replacement.
"Benchmark Replacement" means the Interpolated Benchmark; provided that if we or our designee cannot determine the Interpolated Benchmark as of the Benchmark Replacement Date, then "Benchmark Replacement" means the first alternative set forth in the order below that can be determined by us or our designee as of the Benchmark Replacement Date:
- (1)
- the
sum of (a) Term SOFR and (b) the Benchmark Replacement Adjustment;
- (2)
- the
sum of (a) Compounded SOFR and (b) the Benchmark Replacement Adjustment;
- (3)
- the
sum of (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current
Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment;
- (4)
- the
sum of (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; and
- (5)
- the sum of (a) the alternate rate of interest that has been selected by us or our designee as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate debt securities at such time and (b) the Benchmark Replacement Adjustment.
"Benchmark Replacement Adjustment" means the first alternative set forth in the order below that can be determined by us or our designee as of the Benchmark Replacement Date:
- (1)
- the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement;
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- (2)
- if
the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; and
- (3)
- the spread adjustment (which may be a positive or negative value or zero) that has been selected by us or our designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated floating rate debt securities at such time.
"Benchmark Replacement Conforming Changes" means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of "interest period," timing and frequency of determining rates and making payments of interest, rounding of amounts or tenors, changes to the definition of "Corresponding Tenor" solely when such tenor is longer than the interest period and other administrative matters) that we or our designee decide may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if we or our designee decide that adoption of any portion of such market practice is not administratively feasible or if we or our designee determine that no market practice for use of the Benchmark Replacement exists, in such other manner as we or our designee determine is reasonably necessary).
"Benchmark Replacement Date" means the earliest to occur of the following events with respect to the then-current Benchmark:
- (1)
- in
the case of clause (1) or (2) of the definition of "Benchmark Transition Event," the later of (a) the date of the public statement or
publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or
- (2)
- in the case of clause (3) of the definition of "Benchmark Transition Event," the date of the public statement or publication of information referenced therein.
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
"Benchmark Transition Event" means the occurrence of one or more of the following events with respect to the then-current Benchmark:
- (1)
- a
public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to
provide the Benchmark, permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator
that will continue to provide the Benchmark;
- (2)
- a
public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the
Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity
with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark
permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to
provide the Benchmark; or
- (3)
- a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative.
"Compounded SOFR" means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which will be compounded in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Period) being established by us or our designee in accordance with:
- (1)
- the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; provided that:
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- (2)
- if and to the extent that we or our designee determine that Compounded SOFR cannot be determined in accordance with clause (1) above, then the rate, or methodology for this rate, and conventions for this rate that have been selected by us or our designee giving due consideration to any industry-accepted market practice for U.S. dollar-denominated floating rate debt securities at such time.
"Corresponding Tenor" with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.
"Federal Reserve Bank of New York's Website" means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
"Interpolated Benchmark" with respect to the Benchmark means the rate determined for the Corresponding Tenor by interpolating on a linear basis between: (1) the Benchmark for the longest period (for which the Benchmark is available) that is shorter than the Corresponding Tenor and (2) the Benchmark for the shortest period (for which the Benchmark is available) that is longer than the Corresponding Tenor.
"ISDA Definitions" means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
"ISDA Fallback Adjustment" means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
"ISDA Fallback Rate" means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor, excluding the applicable ISDA Fallback Adjustment.
"Reference Time" with respect to any determination of the Benchmark means (1) if the Benchmark is LIBOR, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such determination, and (2) if the Benchmark is not LIBOR, the time determined by us or our designee in accordance with the Benchmark Replacement Conforming Changes.
"Relevant Governmental Body" means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
"SOFR" with respect to any day means the secured overnight financing rate published for such day by the NY Federal Reserve, as the administrator of the benchmark, or a successor administrator, on the Federal Reserve Bank of New York's Website.
"Term SOFR" means the forward-looking term rate for the applicable Corresponding Tenor based on SOFR that has been selected or recommended by the Relevant Governmental Body.
"Unadjusted Benchmark Replacement" means the Benchmark Replacement, excluding the Benchmark Replacement Adjustment.
EURIBOR
A EURIBOR note is a floating rate debt security that will bear interest at a base rate equal to the interest rate for deposits in euros designated as "EURIBOR" and sponsored jointly by the European Banking Federation and ACI—the Financial Market Association, or any company established by the joint sponsors for purposes of compiling and publishing that rate. In addition, the EURIBOR base rate will be adjusted by the spread or spread multiplier, if any, specified in the applicable prospectus supplement.
EURIBOR will be determined in the following manner:
- •
- EURIBOR will be the offered rate for deposits in Euros having the relevant index maturity beginning on the relevant interest reset date, as
that rate appears on Reuters EURIBOR01 as of 11.00 a.m., Brussels time, on the relevant interest determination date.
- •
- If the rate described in the preceding paragraph does not appear on Reuters EURIBOR01, EURIBOR will be determined on the basis of the rates, at approximately 11.00 a.m., Brussels time, on the relevant interest determination date, at which deposits of the following kind are offered to prime
21
banks in the Euro-zone interbank market by the principal Euro-zone offices of four major banks in that market selected by us: Euro deposits having the relevant index maturity, beginning on the relevant interest reset date and in a representative amount calculated based on an Actual/360 (ISDA) basis. We will request the principal Euro-zone office of each of these banks to provide a quotation of its rate and we will promptly furnish such quotations to the calculation agent. If at least two quotations are provided, EURIBOR for the relevant interest determination date will be the arithmetic mean of the quotations.
- •
- If fewer than two quotations are provided as described above, EURIBOR for the relevant interest determination date will be the arithmetic mean
of the rates for loans of the following kind to leading Euro-zone banks quoted, at approximately 11.00 a.m., Brussels time, on that interest determination date, by three major banks in the
Euro-zone selected by us: loans of Euros having the relevant index maturity, beginning on the relevant interest reset date and in a representative amount. We will request the principal Euro-zone
office of each of these banks to provide a quotation of its rate and we will promptly furnish such quotations to the calculation agent.
- •
- If fewer than three banks selected by us are quoting as described above, EURIBOR for the new interest period will be EURIBOR in effect for the prior interest period. If the initial base rate has been in effect for the prior interest period, however, it will remain in effect for the new interest period.
Additional Mechanics
Form, Exchange and Transfer
The debt securities will be issued, unless otherwise indicated in the applicable prospectus supplement, in denominations that are even multiples of $1,000.
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. (Section 305)
In the case of registered debt securities, you may exchange or transfer your 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. However, you may not exchange registered debt securities for bearer debt securities. (Section 305)
You will not be required to pay a service charge to exchange or transfer debt securities, but you may be required to pay any tax or other governmental charge associated with the exchange or transfer. The exchange or transfer of a registered debt security will only be made if the security registrar is satisfied with your proof of ownership.
If we designate additional transfer agents, they will be named in the applicable prospectus supplement. We may cancel the designation of any particular security registrar. We may also approve a change in the office through which any security registrar acts. (Section 1002)
If the debt securities are redeemable and we redeem less than all of the debt securities of a particular series, we may block the exchange or transfer of debt securities in order to freeze the list of holders to prepare the mailing during the period beginning 15 days before the day we mail the notice of redemption and ending on the day of that mailing. We may also refuse to register exchanges or transfers of debt securities selected for redemption. However, we will continue to permit exchanges and transfers of the unredeemed portion of any debt security being partially redeemed. (Section 305)
For a discussion of transfers of book-entry securities issued in respect of global securities in bearer form, see "—Description of the Securities Depositary Agreement—Transfers" on page 34.
Payment and Paying Agents
If your debt securities are in registered form, 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 the Clearing
22
System Business Day immediately prior to the interest due date, is called the "regular record date" and will be stated in the prospectus supplement. (Section 307)
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. That office is currently located at 240 Greenwich Street, New York, NY 10286.
Interest on global securities will be paid to the holder thereof by wire transfer of same-day funds. For a discussion of payments with respect to book-entry securities issued in respect of global securities in bearer form, see "—Description of the Securities Depositary Agreement—Payments" on page 34.
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, in the case of registered debt securities, the one who is the registered holder on the regular record date or, in the case of bearer debt securities, to the bearer. The most common manner is to adjust the sales price of the debt securities to pro rate interest fairly between buyer and seller. This pro rated interest amount is called "accrued interest". The paying agent for a particular series will be set forth in the prospectus supplement establishing that series.
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 you of changes in the paying agents for the debt securities of any series that you hold. (Section 1002)
Notices
We and the trustee will send notices only to direct holders, using their addresses as listed in the trustee's records. (Sections 101 and 106)
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 and will be repaid to us upon our request. After that two-year period, direct holders may look only to us for payment and not to the trustee, any other paying agent or anyone else. (Section 1003)
Special Situations
Mergers and Similar Events
We are generally permitted to consolidate or merge with another entity. We are also permitted to sell or lease substantially all of our assets to another entity or to buy or lease substantially all of the assets of another entity. No vote by holders of debt securities approving any of these actions is required, unless as part of the transaction we make changes to the indenture requiring your approval, as described later 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; or
- •
- additional amounts becoming payable in respect of withholding tax, and the debt securities thus being subject to redemption at our option, as described later on page 28 under "—Optional Tax Redemption".
We have no obligation under the indenture to seek to avoid these results, or any other legal or financial effects that are disadvantageous to you, in connection with a merger, consolidation or sale or lease of assets that is permitted under the indenture. However, we may not take any of these actions unless all of the following conditions are met:
- •
- If we merge out of existence or sell or lease substantially all of our assets, the other entity must assume our obligations on the debt securities and under the indenture, including the obligation to pay the additional amounts described on page 28 under "—Payment of Additional Amounts". This assumption may be by way of a full and unconditional guarantee in the case of a sale or lease of substantially all of our assets.
23
- •
- If such other entity is organized under the laws of a country other than the United States or England and Wales, it must indemnify you against
any governmental charge or other cost resulting from the transaction.
- •
- We must not be in default on the debt securities immediately prior to such action and such action must not cause a 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 later on page 31 under "—Default and Related
Matters—Events of Default—What Is an Event of Default?". A default for this purpose would also include any event that would be an event of default if the requirements for
notice of default or existence of defaults for a specified period of time were disregarded.
- •
- If we sell or lease substantially all of our assets and the entity to which we sell or lease such assets guarantees our obligations, that
entity must execute a supplement to the indenture, known as a supplemental indenture. In the supplemental indenture, the entity must promise to be bound by every obligation in the indenture.
Furthermore, in this case, the trustee must receive an opinion of counsel stating that the entity's guarantees are valid, that certain registration requirements applicable to the guarantees have been
fulfilled and that the supplemental indenture complies with the Trust Indenture Act of 1939. The entity that guarantees our obligations must also deliver certain certificates and other documents to
the trustee.
- •
- We must deliver certain certificates and other documents to the trustee.
- •
- We must satisfy any other requirements specified in the prospectus supplement. (Section 801)
It is possible that the U.S. Internal Revenue Service may deem a merger or other similar transaction to cause for U.S. federal income tax purposes an exchange of debt securities for new securities by the holders of the debt securities. This could result in the recognition of taxable gain or loss for U.S. federal income tax purposes and possible other adverse tax consequences.
Modification and Waiver
There are three types of changes we can make to the indenture and the debt securities.
Changes Requiring Approval of Each Holder
First, there are changes that cannot be made to the debt securities without the approval of each holder. These are the following types of changes:
- •
- change the stated maturity of the principal or interest on a debt security;
- •
- reduce any amounts due on a debt security;
- •
- change any obligation to pay the additional amounts described on page 28 under "—Payment of Additional Amounts";
- •
- reduce the amount of principal payable upon acceleration of the maturity of a debt security following a default;
- •
- change the place or currency of payment on a debt security;
- •
- impair any of the conversion rights of the debt securities;
- •
- impair your right to sue for payment or conversion;
- •
- reduce the percentage of holders of debt securities whose consent is needed to modify or amend the indenture;
- •
- reduce the percentage of holders of debt securities whose consent is needed to waive compliance with various provisions of the indenture or to
waive specified defaults; and
- •
- modify any other aspect of the provisions dealing with modification and waiver of the indenture. (Section 902)
Changes Requiring a Majority Vote
The second type of change to the indenture and the debt securities is the kind that requires a vote of approval by the holders of debt securities which together represent a majority of the outstanding principal amount of the particular series affected. Most changes fall into this category, except for clarifying changes,
24
amendments, supplements and other changes that would not adversely affect holders of the debt securities in any material respect. For example, this vote would be required for us to obtain a waiver of all or part of any covenants described in an applicable prospectus supplement or a waiver of a past default. However, we cannot obtain a waiver of a payment default or any other aspect of the indenture or the debt securities listed in the first category described above under "—Changes Requiring Approval of Each Holder" unless we obtain your individual consent to the waiver. (Section 513)
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, amendments, supplements and other changes that would not adversely affect holders of the debt securities in any material respect. (Section 901)
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 was 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 that security.
- •
- For debt securities denominated in one or more foreign currencies, currency units or composite currencies, we will use the U.S. dollar equivalent as of the date on which such debt securities were originally issued.
Debt securities will not be considered outstanding, and therefore will not be 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 on page 30 under "—Defeasance and Discharge". (Section 101)
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 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 or, if it sets the record date, the trustee may specify. We may shorten or lengthen (but not beyond 180 days) this period from time to time. (Section 104)
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 the indenture or the debt securities or request a waiver.
Redemption and Repayment
Unless otherwise indicated in your prospectus supplement, your debt security will not be entitled to the benefit of any sinking fund—that is, we will not deposit money on a regular basis into any separate custodial account to repay your debt securities. In addition, we will not be entitled to redeem your debt security before its stated maturity unless your prospectus supplement specifies a redemption commencement date. You will not be entitled to require us to buy your debt security from you, before its stated maturity, unless your prospectus supplement specifies one or more repayment dates.
If your prospectus supplement specifies a redemption commencement date or a repayment date, it will also specify one or more redemption prices or repayment prices, which may be expressed as a percentage of the principal amount of your debt security or by reference to one or more formulae used to determine the redemption price(s). It may also specify one or more redemption periods during which the redemption prices relating to a redemption of debt securities during those periods will apply.
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If your prospectus supplement specifies a redemption commencement date, we may redeem your debt security at our option at any time on or after that date. If we redeem your debt security, we will do so at the specified redemption price, together with interest accrued to the redemption date. If different prices are specified for different redemption periods, the price we pay will be the price that applies to the redemption period during which your debt security is redeemed.
If your prospectus supplement specifies a repayment date, your debt security will be repayable by us at your option on the specified repayment date(s) at the specified repayment price(s), together with interest accrued to the repayment date.
In the event that we exercise an option to redeem any debt security, we will give to the holder written notice of the principal amount of the debt security to be redeemed, not less than 30 days nor more than 60 days before the applicable redemption date. We will give the notice in the manner described above on page 23 under "—Additional Mechanics—Notices".
If a debt security represented by a global security is subject to repayment at the holder's option, the depositary or its nominee, as the holder, will be the only person that can exercise the right to repayment. Any indirect holders who own beneficial interests in the global security and wish to exercise a repayment right must give proper and timely instructions to their banks or brokers through which they hold their interests, requesting that they notify the depositary to exercise the repayment right on their behalf. Different firms have different deadlines for accepting instructions from their customers, and you should take care to act promptly enough to ensure that your request is given effect by the depositary before the applicable deadline for exercise.
Street name and other indirect holders should consult their banks or brokers for information on how to exercise a repayment right in a timely manner.
In the event that the option of the holder to elect repayment as described above is deemed to be a "tender offer" within the meaning of Rule 14e-l under the Exchange Act, we will comply with Rule 14e-l as then in effect to the extent it is applicable to us and the transaction.
We or our affiliates may purchase debt securities from investors who are willing to sell from time to time, either in the open market at prevailing prices or in private transactions at negotiated prices. Debt securities that we or they purchase may, in our discretion, be held, resold or cancelled.
Redemption or Repurchase Following a Change of Control
If a Change of Control Put Option (as defined below) is specified in the prospectus supplement and, at any time while any of the debt securities remain outstanding, a Change of Control Put Event (as defined below) occurs, then the holder of each such debt security will have the option, or a "Change of Control Put Option" (unless, prior to the giving of the relevant Change of Control Put Event Notice (as defined below), we have otherwise given valid notice of redemption), to require us to redeem or, at our option, purchase (or procure the purchase of) that debt security on the date which is seven days after the expiration of the Put Period (as defined below) (such date or such other date as may be specified in the prospectus supplement, the "Put Date") at the Optional Redemption Amount specified in the prospectus supplement together with (or, where purchased, together with an amount equal to) interest (if any) accrued to (but excluding) the Put Date.
A "Change of Control Put Event" will be deemed to occur if:
(i) any person or any persons acting in concert (as defined in the United Kingdom's City Code on Takeovers and Mergers), other than a holding company (as defined in Section 1159 of the Companies Act 2006 as amended) whose shareholders are or are to be substantially similar to our pre-existing shareholders, shall become interested (within the meaning of Part 22 of the Companies Act 2006 as amended) in (A) more than 50% of our issued or allotted ordinary share capital or (B) shares in our capital carrying more than 50% of the voting rights normally exercisable at our general meeting (each such event, a "Change of Control"); provided that, no Change of Control shall be deemed to occur if the event which would otherwise have constituted a Change of Control occurs or is carried out by an extraordinary resolution; and
(ii) our long-term debt has been assigned:
(A) an investment grade credit rating (Baa3/BBB-, or their respective equivalents, or better), or an "Investment Grade Rating", by any Rating Agency (as defined below) at our invitation; or
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(B) where there is no rating from any Rating Agency assigned at our invitation, an Investment Grade Rating by any Rating Agency of its own volition,
and;
(x) such rating is, within the Change of Control Period (as defined below), either downgraded to a non-investment grade credit rating (Ba1/BB+, or their respective equivalents, or worse), or a "Non-Investment Grade Rating", or withdrawn and is not, within the Change of Control Period, subsequently (in the case of a downgrade) upgraded or (in the case of a withdrawal) reinstated to an Investment Grade Rating by such Rating Agency;
(y) and there remains no other Investment Grade Rating of our long-term debt from any other Rating Agency; and
(iii) in making any decision to downgrade or withdraw an Investment Grade Rating pursuant to paragraph (ii) above, the relevant Rating Agency announces publicly or confirms in writing to us that such decision(s) resulted, in whole or in part, from the occurrence of the relevant Change of Control.
Further, if at the time of the occurrence of the relevant Change of Control our long-term debt is not assigned an Investment Grade Rating by any Rating Agency, a Change of Control Put Event will be deemed to occur upon the occurrence of a Change of Control alone.
Promptly upon us becoming aware that a Change of Control Put Event has occurred we shall, and the Trustee if so requested by the holders of at least one-quarter in nominal amount of the debt securities then outstanding or if so directed by an extraordinary resolution of the debt securities holders, shall (subject in each case to the Trustee being indemnified and/or secured to its satisfaction) give notice, or a "Change of Control Put Event Notice", to the debt securities holders in accordance with "—Additional Mechanics—Notices" specifying the nature of the Change of Control Put Event and the procedure for exercising the Change of Control Put Option.
To exercise the Change of Control Put Option, the holder of the debt security must (in the case of bearer debt securities) deposit such debt security with any Paying Agent or (in the case of registered debt securities) deposit the certificate representing such debt security with the security registrar at its specified office, in each case at any time during normal business hours of such Paying Agent or security registrar (all as defined in the debt security, or relevant prospectus supplement), as the case may be, falling within the period, or the "Put Period", of 30 days after a Change of Control Put Event Notice is given or such other date as may be specified in the prospectus supplement, accompanied by a duly signed and completed notice of exercise in the form (for the time being current) obtainable from the specified office of any Paying Agent or security registrar, as the case may be, or a "Change of Control Put Notice". No debt security or Certificate so deposited and option so exercised may be withdrawn (except as provided in the Agency Agreement) without our prior consent. We shall redeem or purchase (or procure the purchase of) the relevant debt securities on the Put Date unless previously redeemed (or purchased) and cancelled.
If 80% or more in nominal amount of the debt securities then outstanding have been redeemed or purchased pursuant to this section, we may, on giving not less than 30 nor more than 60 days' notice to the debt securities holders (such notice being given within 30 days after the Put Date), redeem or purchase (or procure the purchase of), at our option, all of the remaining outstanding debt securities at their Optional Redemption Amount, as specified in the prospectus supplement, together with interest (if any) accrued to (but excluding) the date fixed for such redemption or purchase.
If the rating designations employed by either Moody's Investors Service España S.A., or "Moody's", or Standard & Poor's Credit Market Services Europe Limited, or "S&P", are changed from those which are described in paragraph (ii) of the definition of "Change of Control Put Event" above, or if a rating is procured from a Substitute Rating Agency (as defined below), we shall determine the rating designations of Moody's or S&P or such Substitute Rating Agency (as appropriate) as are most equivalent to the prior rating designations of Moody's or S&P and this section shall be construed accordingly.
The Trustee is under no obligation to ascertain whether a Change of Control Put Event or Change of Control or any event which could lead to the occurrence of or could constitute a Change of Control Put Event or Change of Control has occurred, and, until it shall have actual knowledge or notice pursuant to the indenture to the contrary, the Trustee may assume that no Change of Control Put Event or Change of Control or other such event has occurred.
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In this "Redemption or Repurchase Following a Change of Control":
"Change of Control Period" means the period commencing upon a Change of Control and ending 90 days after the Change of Control (or such longer period for which the debt securities are under consideration (such consideration having been announced publicly within the period ending 90 days after the Change of Control) for rating review, such period not to exceed 60 days after the public announcement of such consideration); and
"Rating Agency" means Moody's or S&P, or any of their respective affiliates or successors or any rating agency, or a "Substitute Rating Agency", substituted for any of them by us from time to time.
Optional Tax Redemption
We may have the option to redeem, in whole but not in part, the debt securities in the three situations described below. In such cases, the redemption price for debt securities (other than original issue discount debt securities) will be equal to the principal amount of the debt securities being redeemed plus accrued interest and any additional amounts due on the date fixed for redemption. The redemption price for original issue discount debt securities will be specified in the prospectus supplement for such securities. Furthermore, we must give you between 30 and 60 days' notice before redeeming the debt securities.
The first situation is where, as a result of a change in or amendment to any laws or regulations, or as a result of any execution of or amendment to any treaty or treaties, or any change in the official application or interpretation of such laws, regulations or treaties, we would be required to pay additional amounts as described later on page 28 under "—Payment of Additional Amounts".
This applies only in the case of events described in the preceding paragraph that occur on or after the date specified in the applicable prospectus supplement and in the jurisdiction where we are incorporated. If succeeded by another entity, the applicable jurisdiction will be the jurisdiction in which such successor entity is organized, and the applicable date will be the date the entity became a successor.
We 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 us.
The second situation is where, as a result of any delivery or requirement to deliver debt securities in definitive registered form, after having used all reasonable efforts to avoid having to issue such definitive registered debt securities, we would be required to pay additional amounts as described later under "—Payment of Additional Amounts".
We 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 us.
The third situation is where, following a merger, consolidation or sale or lease of our assets to a person that assumes or, if applicable, guarantees our obligations on the debt securities, that person is required to pay additional amounts as described later under "—Payment of Additional Amounts".
We, or the other person, would have the option to redeem the debt securities in this situation even if 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 indenture to seek to avoid the obligation to pay additional amounts in this situation.
Conversion
Your debt securities may be convertible into or exchangeable for our ordinary shares or other securities if your prospectus supplement so provides. If your debt securities are convertible or exchangeable, your prospectus supplement will include provisions as to whether conversion or exchange is mandatory, at your option or at our option. Your prospectus supplement would also include provisions regarding the adjustment of the number of securities to be received by you upon conversion or exchange.
Payment of Additional Amounts
The government of any jurisdiction in which we are incorporated may require us to withhold amounts from payments on the principal or any premium or interest on a debt security for taxes or any other governmental charges. If the jurisdiction requires a withholding of this type, we may be required to pay you an additional amount so that the net amount you receive will be the amount specified in the debt security
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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 of the following circumstances:
- •
- The U.S. government or any political subdivision of the U.S. government is the entity that is imposing the tax or governmental charge.
- •
- The withholding is imposed only because the holder was or is connected to the taxing jurisdiction or, if the holder is not an individual, the
tax or governmental charge was imposed because a fiduciary, settlor, beneficiary, member or shareholder of the holder or a party possessing a power over a holder that is an estate or trust was or is
connected to the taxing jurisdiction. These connections include those where the holder or related party:
- •
- is or has been a citizen or resident of the jurisdiction;
- •
- is or has been engaged in trade or business in the jurisdiction; or
- •
- has or had a permanent establishment in the jurisdiction.
- •
- The withholding is imposed due to the presentation of a debt security, if presentation is required, for payment on a date more than
30 days after the security became due or after the payment was provided for.
- •
- The withholding is imposed due to the presentation of a debt security for payment in the United Kingdom.
- •
- The withholding is on account of an estate, inheritance, gift, sale, transfer, personal property or similar tax or other governmental charge.
- •
- The withholding is for a tax or governmental charge that is payable in a manner that does not involve withholding.
- •
- The withholding is imposed or withheld because the holder or beneficial owner failed to comply with any of our requests for the following that
the statutes, treaties, regulations or administrative practices of the taxing jurisdiction require as a precondition to exemption from all or part of such withholding:
- •
- to provide information about the nationality, residence or identity of the holder or beneficial owner; or
- •
- to make a declaration or satisfy any information requirements.
- •
- The holder is a fiduciary or partnership or other entity that is not the sole beneficial owner of the payment in respect of which the
withholding is imposed, and the laws of the taxing jurisdiction require the payment to be included in the income of a beneficiary or settlor of such fiduciary or a member of such partnership or
another beneficial owner who would not have been entitled to such additional amounts had it been the holder of such debt security.
- •
- With respect to debt securities originally issued in bearer form, the payment relates to a debt security that is in physical form. However,
this exception only applies if:
- •
- the debt security in physical form was issued at the holder's request following an event of default; and
- •
- we have not issued physical certificates for the entire principal amount of such series of debt securities.
- •
- The withholding or deduction is imposed on a holder or beneficial owner who could have avoided such withholding or deduction by presenting its debt securities to another paying agent.
These provisions will also apply to any taxes or governmental charges imposed by any jurisdiction in which a successor to us is organized. The prospectus supplement relating to the debt securities may describe additional circumstances in which we would not be required to pay additional amounts. (Sections 205, 802 and 1004)
In certain circumstances, payments made to holders of debt securities may be subject to withholding or deduction for or on account of UK tax. These circumstances might include, for example, if payments are made on debt securities issued by us that are not listed on a "recognized stock exchange" for UK tax purposes at the time of payment. For more information see the section entitled "Taxation—United Kingdom Taxation—Debt Securities—Interest Payments" on page 51.
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Restrictive Covenants
The indenture does not contain any covenants restricting our ability to make payments, incur indebtedness, dispose of assets, enter into sale and leaseback transactions, 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. 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
The following discussion of full defeasance and discharge and covenant defeasance and discharge will only be applicable to your series of debt securities if we choose to apply them to that series, in which case we will state that in the prospectus supplement. (Sections 301 and 1401-1406)
Full Defeasance
Except for various obligations described below, we can legally release ourselves from any payment or other obligations on the debt securities (called "full defeasance") if we, in addition to other actions, put in place the following arrangements for you to be repaid:
- •
- We must deposit in trust for your benefit and the benefit of all other direct holders of the debt securities a combination of money and U.S.
government or U.S. government agency notes or bonds that, in the opinion of a nationally recognized public accounting firm, will generate enough cash to make interest, principal and any other payments
on the debt securities on their various due dates.
- •
- We must deliver to the trustee a legal opinion of our counsel, based upon a ruling by the U.S. Internal Revenue Service or upon a change in applicable U.S. federal income tax law, confirming that under then current U.S. federal income tax law we may make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves.
If the debt securities are listed on any securities exchange, we must deliver to the trustee a legal opinion of our counsel confirming that the deposit, defeasance and discharge will not cause the debt securities to be delisted. (Sections 1402 and 1404)
If we ever did accomplish full defeasance as described above, you would have to rely solely on the trust deposit for repayment on the debt securities. You could not look to us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected from claims of our lenders and other creditors if we ever become bankrupt or insolvent. However, even if we take these actions, a number of our obligations relating to the debt securities and under the indenture will remain. These include the following obligations:
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- to register the exchange and transfer of debt securities;
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- to replace mutilated, destroyed, lost or stolen debt securities;
- •
- to maintain paying agencies; and
- •
- to hold money for payment in trust.
Covenant Defeasance
We can make the same type of deposit described above and be released from all or some of the restrictive covenants (if any) that apply to the debt securities of any particular series. This is called "covenant defeasance". In that event, you would lose the protection of those restrictive covenants but would gain the protection of having money and securities set aside in trust to repay the debt securities. In order to achieve covenant defeasance:
- •
- We must deposit in trust for your benefit and the benefit of all other direct holders of the debt securities a combination of money and U.S.
government or U.S. government agency notes or bonds that, in the opinion of a nationally recognized public accounting firm, will generate enough cash to make interest, principal and any other payments
on the debt securities on their various due dates.
- •
- We must deliver to the trustee a legal opinion of our counsel confirming that under then current U.S. federal income tax law we may make the above deposit without causing you to be taxed on the debt
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securities any differently than if we did not make the deposit and just repaid the debt securities ourselves.
If we accomplish covenant defeasance, the following provisions of the indenture and/or the debt securities would no longer apply:
- •
- Any covenants applicable to the series of debt securities and described in the applicable prospectus supplement.
- •
- The events of default relating to breach of covenants and acceleration of the maturity of other debt, described later under "—Default and Related Matters—Events of Default—What Is An Event of Default?".
If we accomplish covenant defeasance, you can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit. In fact, if any event of default occurred (such as our bankruptcy) and the debt securities become immediately due and payable, there may be such a shortfall. Depending on the event causing the default, you may not be able to obtain payment of the shortfall. (Sections 1403 and 1404)
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 our unsecured creditors. 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 are not subordinated, they will rank equally with all our other unsecured and unsubordinated indebtedness.
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:
- •
- We do not pay the principal or any premium on a debt security within 14 days of its due date.
- •
- We do not pay interest on a debt security within 21 days of its due date.
- •
- We do not deposit any sinking fund payment within 14 days of its due date, if we agreed to maintain a sinking fund for your debt
securities and the other debt securities of the same series.
- •
- We remain in breach of any covenant or any other term of the indenture for 30 days after we receive a notice of default stating that we
are in breach. The notice must be sent by either the trustee or holders of 25% of the principal amount of debt securities of the affected series.
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- We remain in default in the conversion of any convertible security of a given series for 30 days after we receive a notice of default
stating that we are in default. The notice must be sent by either the trustee or the holders of 25% of the principal amount of debt securities of the affected series.
- •
- If the total aggregate principal amount of all of our indebtedness for borrowed money, which meets one of the following conditions, together
with the amount of any guarantees and indemnities described in the next point, equals or exceeds £150 million:
- •
- the principal amount of such indebtedness becomes due and payable prematurely as a result of an event of default (however
described) under the agreement(s) governing that indebtedness;
- •
- we fail to make any payment in respect of such indebtedness on the date when it is due (as extended by any originally applicable
grace period); or
- •
- any security that we have granted securing the payment of any such indebtedness becomes enforceable by reason of any default relating thereto and steps are taken to enforce the security.
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- •
- We fail to make payment due under any guarantee and/or indemnity (after the expiry of any originally applicable grace period) of another
person's indebtedness for borrowed money in an amount that, when added to the indebtedness for borrowed money which meets one of the conditions described in the prior point, equals or exceeds
£150 million.
- •
- We are ordered by a court or pass a resolution to wind up or dissolve, save for the purposes of a reorganization on terms approved in writing
by the trustee.
- •
- We stop paying or are unable to pay our debts as they fall due, or we are adjudicated or found bankrupt or insolvent, or we enter into any
composition or other similar arrangement with our creditors under the UK Insolvency Act.
- •
- If a receiver or administrator is appointed in relation to, or a distress, execution, attachment, sequestration or other process is levied,
enforced upon, sued out or put in force against, the whole or a substantial part of our undertakings or assets and (other than the appointment of an administrator) is not discharged or removed within
90 days.
- •
- Any other event of default described in the applicable prospectus supplement occurs. (Section 501)
An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture.
For these purposes, "indebtedness for borrowed money" means any present or future indebtedness (whether it is principal, premium, interest or other amounts) for or in respect of:
- •
- money borrowed (including in the form of any bonds, notes, debentures, debenture stock or loan stock); or
- •
- liabilities under or in respect of any acceptance or acceptance credit.
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 25% in principal amount of the debt securities of the affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable. This is called a declaration of acceleration of maturity. If an event of default occurs because of certain events in bankruptcy, insolvency or reorganization, the principal amount of all the debt securities of that series will be automatically accelerated without any action by the trustee, any holder or any other person. A declaration of acceleration of maturity may be cancelled by the holders of at least a majority in principal amount of the debt securities of the affected series. (Section 502)
The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the securities of such series, provided that (a) such direction must not be in conflict with any rule of law or with the indenture, (b) the trustee may take any other action deemed proper by the trustee which is not inconsistent with such direction, and (c) such holders shall have offered to the trustee security or indemnity satisfactory to the trustee against the costs, expenses, and liabilities which might be incurred by it in compliance with such request or direction. (Sections 512 and 603) 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:
- •
- You must give the trustee written notice that an event of default has occurred and remains uncured.
- •
- The holders of 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee
take action because of the default, and must offer satisfactory indemnity to the trustee against the cost and other liabilities of taking that action.
- •
- The trustee must have not taken action for 60 days after receipt of the above notice and offer of indemnity.
- •
- The holders of a majority in principal amount of all outstanding debt securities of the relevant series must not have given the trustee a direction that is inconsistent with the above notice. (Section 507)
However, you are entitled at any time to bring a lawsuit for the payment of money due on your debt security on or after its due date. (Section 508)
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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.
We will furnish to the trustee every year a written statement of certain of our officers that will either certify that, to their knowledge, we are in compliance with the indenture and the debt securities or specify any default. (Section 1005)
Regarding the Trustee
We and some of our subsidiaries maintain banking relations with the trustee in the ordinary course of our business.
If an event of default occurs, or an event occurs that would be an event of default if the requirements for giving us notice of the default or our default having to exist for a specified period of time were disregarded, the trustee may be considered to have a conflicting interest with respect to the debt securities or the indenture for purposes of the Trust Indenture Act of 1939. 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.
Description of the Securities Depositary Agreement
If we issue debt securities represented by a global security in bearer form, we will deposit such security with The Bank of New York Mellon, as depositary. The provisions described below will be applicable to such debt securities.
The arrangements for depositing and holding of the global securities in bearer form by The Bank of New York Mellon are set forth in a document called the securities depositary agreement between us and The Bank of New York Mellon, and the owners of book-entry securities. This section summarizes that agreement, a copy of which is filed as an exhibit to our registration statement. Because this section is a summary, it does not describe every aspect of the agreement. The description here is subject to and qualified by the detailed terms in the definitive securities depositary agreement that we have entered into with the depositary and the owners of book-entry securities.
General
The global security in bearer form representing the debt securities will be deposited with, and held by, The Bank of New York Mellon, as the depositary for The Depository Trust Company, or "DTC". The Bank of New York Mellon will maintain on our behalf a book-entry register for the applicable debt securities. It will register DTC or any person DTC nominates as the owner of the certificateless depositary interests it will issue in respect of the global securities. For a detailed description of DTC, see "Clearance and Settlement" on page 47.
Ownership of beneficial interests in the certificateless depositary interest will be in the form of book-entry securities. Ownership of book-entry securities will be limited to participants or indirect participants in DTC. Procedures related to the transfer of ownership of book-entry securities are described below on page 34 under "—Transfers".
The ultimate beneficial owners of the global security in bearer form can only be indirect holders. We do not recognize this type of investor as a holder of debt securities and instead only deal with the depositary that holds the global security. As an indirect holder, an investor's rights and obligations relating to a global security will be governed by applicable procedures of DTC and the account rules of The Bank of New York Mellon and the investor's financial institution. We, the trustee, any paying agent, The Bank of New York Mellon, as depositary and registrar, and any of our or their agents will not be responsible for the obligations under the rules and procedures of DTC, its participants or an investor's financial institution.
DTC's policies will govern payments, exchanges, transfers and other matters relating to the investor's interest in the global security. In general, we and the trustee have no responsibility for DTC's actions and do not supervise DTC in any way.
We have no responsibility for any aspect of the actions of any participant in DTC or for payments related to, or for its records of, ownership interests in the global security. We also do not supervise the participants in DTC in any way, nor will we govern payments, exchanges, transfers and other matters relating to the investor's interest in the global security.
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Payments
Payments related to the applicable debt securities will be made to The Bank of New York Mellon. The Bank of New York Mellon then must distribute all payments to DTC by wire transfer of immediately available funds. Upon receipt, DTC has informed us that it will credit its participants' accounts on that date with payments in amounts proportionate to their respective ownership interests as shown on DTC's records. Payments by participants in DTC to the owners of book-entry securities will be the participants' responsibility. We expect that payments by participants in DTC to the owners of interests in book-entry securities will be governed by standard customary practices, as is now the case with the securities held for the accounts of customers registered in street name.
All payments will be made by The Bank of New York Mellon without any deduction or withholding for any taxes, duties, assessments or other governmental charges. If the laws or regulations from the country in which we are incorporated require withholding, then we will add to the payment so it is the same as it would have been without the withholding. These added payments are subject to various exceptions and limitations that are described in the section on page 28 called "—Payment of Additional Amounts". They are also subject to the optional redemption rights that are described in the section on page 28 called "—Special Situations—Optional Tax Redemption".
Redemption
If and when the global securities are redeemed, The Bank of New York Mellon will deliver all amounts it receives in respect of the redemption to DTC. The redemption price that will be paid for the book-entry securities will be equal to the amount paid to The Bank of New York Mellon for the applicable global securities.
Transfers
Transfers of all or any portion of the certificateless depositary interests may be made only through the book-entry register. Until the book-entry securities are exchanged for definitive securities, the certificateless depositary interests may only be transferred as a whole by:
- •
- DTC to a nominee of DTC;
- •
- by a nominee of DTC to DTC or another nominee of DTC; or
- •
- by DTC or any such nominee to a successor of DTC or a nominee of such successor.
DTC will record all transfers of the interests in book-entry securities using its book-entry system. DTC will use the customary procedures described in detail in the securities depositary agreement.
Procedures for Issuing Definitive Securities
Holders of book-entry securities will receive definitive securities in the situations described later on page 45 under "Legal Ownership—Global Securities—Special Situations in Which a Global Security Will Be Terminated". No definitive securities in bearer form will be issued. Definitive securities issued in exchange for book-entry securities will be issued in registered form only, without coupons. They will be registered in the name or names that The Bank of New York Mellon instructs the registrar based on the instructions of DTC.
Action by Holders of Book-Entry Securities
The Bank of New York Mellon must send any notices it receives concerning consents, requests for a waiver or any other action to DTC, as promptly as practicable after receipt. If DTC requests in writing that The Bank of New York Mellon take action, it is expected that The Bank of New York Mellon will take the action when it receives reasonable indemnity from DTC.
The Bank of New York Mellon will not make any independent decisions relating to the certificateless depositary interests or the global securities.
We understand that under existing industry practices, if we request any action to be taken by the holders of debt securities or if a holder of debt securities desires to give or take any action the holder is entitled to give or take under the debt securities or the indenture, DTC will authorize its participants holding book-entry securities to give or take the action and the participants will then authorize the beneficial owners to take the action or will act upon those owners' instructions.
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Reports
The Bank of New York Mellon must send a copy of any communications that relate to us to DTC immediately after it receives them. This is also true for any communications that relate to the global and the book-entry securities.
Action by the Holders of the Global Securities
If a default occurs and the holders of the global securities request The Bank of New York Mellon to take action, it is expected that The Bank of New York Mellon will take the action when it receives reasonable indemnity from the holders of the global securities. Action taken in the event of a default is subject to limitations which are described in detail in the securities depositary agreement.
Charges Incurred by the Depositary Will Be Paid by Us
We have agreed to pay all charges of The Bank of New York Mellon under the securities depositary agreement. We have also agreed to indemnify The Bank of New York Mellon against certain liabilities it incurs under the securities depositary agreement.
Amendment and Termination
We and The Bank of New York Mellon may amend the securities depositary agreement. DTC's consent will not be required in connection with the following amendments:
- •
- to cure any inconsistency, omission, defect or ambiguity in the securities depositary agreement;
- •
- to add to the covenants and agreements of The Bank of New York Mellon or us;
- •
- to assign The Bank of New York Mellon's rights and duties to a qualified successor;
- •
- to evidence the succession of another person to us and the assumption by the successor of our covenants, where the parties are amending the
indenture in a similar way;
- •
- to comply with the Securities Act of 1933, or the "Securities Act", the Exchange Act, the Investment Company Act of 1940 or the Trust Indenture
Act of 1939; or
- •
- to modify, alter, amend or supplement the securities depositary agreement in any other manner that is not adverse to DTC or the holders of book-entry securities.
No amendment to the securities depositary agreement or the book-entry securities that affects DTC or the holders of book-entry securities in an adverse way will be allowed without DTC's consent.
When definitive securities are issued to all of the holders of book-entry securities, the book-entry provisions of the securities depositary agreement will no longer apply. Definitive securities may be issued upon the resignation of the depositary if no successor has been appointed within 120 days.
Resignation or Removal of the Depositary
The Bank of New York Mellon may resign at any time by delivering written notice to us, and the resignation will take effect when we appoint a new depositary and the new depositary accepts the appointment. If no successor has been appointed at the end of 120 days after The Bank of New York Mellon gives notice, it may petition a court of competent jurisdiction for the appointment of a successor.
Obligations of the Depositary
The Bank of New York Mellon must perform only the duties and obligations set forth in the definitive securities depositary agreement. You should not read any implied covenants or obligations into the definitive securities depositary agreement.
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DESCRIPTION OF WARRANTS WE MAY OFFER
We may issue warrants to purchase our debt securities, preference shares or ordinary shares. Warrants may be issued independently or together with any securities and may be attached to or separate from those securities. Each series of warrants will be issued under a separate warrant agreement to be entered into by us and a bank or trust company, as warrant agent, all as will be set forth in the applicable prospectus supplement.
Debt Warrants
The following briefly summarizes the material terms that will generally be included in a debt warrant agreement. However, we may include different terms in the debt warrant agreement for any particular series of debt warrants and such other terms and all pricing and related terms will be disclosed in the applicable prospectus supplement. You should read the particular terms of any debt warrants that are offered by us and the related debt warrant agreement which will be described in more detail in the applicable prospectus supplement. The prospectus supplement will also state whether any of the generalized provisions summarized below do not apply to the debt warrants being offered.
General
We may issue warrants for the purchase of our debt securities. As explained below, each debt warrant will entitle its holder to purchase debt securities at an exercise price set forth in, or to be determined as set forth in, the applicable prospectus supplement. Debt warrants may be issued separately or together with debt securities.
The debt warrants are to be issued under debt warrant agreements to be entered into by us and one or more banks or trust companies, as debt warrant agent, all as will be set forth in the applicable prospectus supplement. At or around the time of an offering of debt warrants, a form of debt warrant agreement, including a form of debt warrant certificate representing the debt warrants, reflecting the alternative provisions that may be included in the debt warrant agreements to be entered into with respect to particular offerings of debt warrants, will be filed by amendment as an exhibit to the registration statement of which this prospectus forms a part.
Terms of the Debt Warrants to Be Described in the Prospectus Supplement
The particular terms of each issue of debt warrants, the debt warrant agreement relating to such debt warrants and such debt warrant certificates representing debt warrants will be described in the applicable prospectus supplement. This description will include:
- •
- the initial offering price;
- •
- the currency, currency unit or composite currency in which the exercise price for the debt warrants is payable;
- •
- the title, aggregate principal amount and terms of the debt securities that can be purchased upon exercise of the debt warrants;
- •
- the title, aggregate principal amount and terms of any related debt securities with which the debt warrants are issued and the number of the
debt warrants issued with each debt security;
- •
- if applicable, whether and when the debt warrants and the related debt securities will be separately transferable;
- •
- the principal amount of debt securities that can be purchased upon exercise of each debt warrant and the exercise price;
- •
- the date on or after which the debt warrants may be exercised and any date or dates on which this right will expire in whole or in part;
- •
- if applicable, a discussion of material UK and U.S. federal income tax, accounting or other considerations applicable to the debt warrants;
- •
- whether the debt warrants will be issued in registered or bearer form, and, if registered, where they may be transferred and registered; and
- •
- any other terms of the debt warrants.
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You may exchange your debt warrant certificates for new debt warrant certificates of different denominations but they must be exercisable for the same aggregate principal amount of debt securities. If your debt warrant certificates are in registered form, you may present them for registration of transfer at the corporate trust office of the debt warrant agent or any other office indicated in the applicable prospectus supplement. Before the exercise of debt warrants, holders of debt warrants will not be entitled to receive payments of principal or any premium or interest on the debt securities that can be purchased upon such exercise, or to enforce any of the covenants in the indenture relating to the debt securities that may be purchased upon such exercise.
Exercise of Debt Warrants
Unless otherwise provided in the applicable prospectus supplement, each debt warrant will entitle the holder to purchase a principal amount of debt securities for cash at an exercise price in each case that will be set forth in, or to be determined as set forth in, the applicable prospectus supplement. Debt warrants may be exercised at any time up to the close of business on the expiration date specified in the applicable prospectus supplement. After the close of business on the expiration date or any later date to which we extend the expiration date, unexercised debt warrants will become void.
Debt warrants may be exercised as set forth in the prospectus supplement applicable to the particular debt warrants. Upon delivery of payment of the exercise price and the debt warrant certificate properly completed and duly executed at the corporate trust office of the debt warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the debt securities that can be purchased upon such exercise of the debt warrants to the person entitled to them. If fewer than all of the debt warrants represented by the debt warrant certificate are exercised, a new debt warrant certificate will be issued for the remaining unexercised debt warrants. Holders of debt warrants will be required to pay any tax or governmental charge that may be imposed in connection with transferring the underlying debt securities in connection with the exercise of the debt warrants.
Street name and other indirect holders of debt warrants should consult their bank or brokers for information on how to exercise their debt warrants.
Modification and Waiver
There are three types of changes we can make to the debt warrant agreement and the debt warrants of any series.
Changes Requiring Approval of Each Holder
First, there are changes that cannot be made to the debt warrants or the debt warrant agreement under which they were issued without the approval of each holder. These are the following types of changes:
- •
- any increase in the exercise price;
- •
- any decrease in the principal amount of debt securities that can be purchased upon exercise of any debt warrant;
- •
- any reduction of the period of time during which the debt warrants may be exercised;
- •
- any other change that materially and adversely affects the exercise rights of a holder of debt warrant certificates or the debt securities that
can be purchased upon such exercise; and
- •
- any reduction in the number of outstanding unexercised debt warrants whose consent is required for any modification or amendment described below under "—Changes Requiring a Majority Vote".
Changes Requiring a Majority Vote
The second type of change to the debt warrant agreement or debt warrants of any series is the kind that requires a vote of approval by the holders of not less than a majority in number of the then outstanding unexercised debt warrants of that series. This category includes all changes other than those listed above under "—Changes Requiring Approval of Each Holder" or changes that would not adversely affect holders of debt warrants or debt securities in any material respect.
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Changes Not Requiring Approval
The third type of change does not require any vote or consent by the holders of debt warrant certificates. This type is limited to clarifications and other changes that would not adversely affect such holders in any material respect.
Street name and other indirect holders of debt warrants should consult their bank or brokers for information on how approval may be granted or denied if we seek to change your debt warrants or the debt warrant agreement under which they were issued or to request a waiver.
Merger, Consolidation, Sale or Other Dispositions
Under the debt warrant agreement for each series of debt warrants, we may consolidate with, or sell, convey or lease all or substantially all of our assets to, or merge with or into, any other corporation or firm to the extent permitted by the indenture for the debt securities that can be purchased upon exercise of such debt warrants. If we consolidate with or merge into, or sell, lease or otherwise dispose of all or substantially all of our assets to, another corporation or firm, that corporation or firm must become legally responsible for our obligations under the debt warrant agreements and debt warrants. If we sell or lease substantially all of our assets, one way the other firm or company can become legally responsible for our obligations is by way of a full and unconditional guarantee of our obligations. If the other company becomes legally responsible by a means other than a guarantee, we will be relieved from all such obligations.
Enforceability of Rights; Governing Law
The debt warrant agent will act solely as our agent in connection with the issuance and exercise of debt warrants and will not assume any obligation or relationship of agency or trust for or with any holder of a debt warrant certificate or any owner of a beneficial interest in debt warrants. The holders of debt warrant certificates, without the consent of the debt warrant agent, the trustee, the holder of any debt securities issued upon exercise of debt warrants or the holder of any other debt warrant certificates, may, on their own behalf and for their own benefit, enforce, and may institute and maintain any suit, action or proceeding against us to enforce, or otherwise in respect of, their rights to exercise debt warrants evidenced by their debt warrant certificates. Except as may otherwise be provided in the applicable prospectus supplement, each issue of debt warrants and the related debt warrant agreement will be governed by the laws of the State of New York.
Equity Warrants
The following briefly summarizes the material terms that will generally be included in an equity warrant agreement. However, we may include different terms in the equity warrant agreement for any particular series of equity warrants and such other terms and all pricing and related terms will be disclosed in the applicable prospectus supplement. You should read the particular terms of any equity warrants that are offered by us and the related equity warrant agreement which will be described in more detail in the applicable prospectus supplement. The prospectus supplement will also state whether any of the general provisions summarized below do not apply to the equity warrants being offered.
General
We may issue warrants for the purchase of our equity securities (i.e., our ordinary shares and preference shares). As explained below, each equity warrant will entitle its holder to purchase equity securities at an exercise price set forth in, or to be determined as set forth in, the applicable prospectus supplement. Equity warrants may be issued separately or together with equity securities.
The equity warrants are to be issued under equity warrant agreements to be entered into by us and one or more banks or trust companies, as equity warrant agent, all as will be set forth in the applicable prospectus supplement. At or around the time of an offering of equity warrants, a form of equity warrant agreement, including a form of equity warrant certificate representing the equity warrants, reflecting the alternative provisions that may be included in the equity warrant agreements to be entered into with respect to particular offerings of equity warrants, will be filed by amendment as an exhibit to the registration statement of which this prospectus forms a part.
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Terms of the Equity Warrants to Be Described in the Prospectus Supplement
The particular terms of each issue of equity warrants, the equity warrant agreement relating to such equity warrants and the equity warrant certificates representing such equity warrants will be described in the applicable prospectus supplement. This description will include:
- •
- the initial offering price;
- •
- the currency, currency unit or composite currency in which the exercise price for the equity warrants is payable;
- •
- the designation and terms of the equity securities (i.e., preference shares or ordinary shares) that can be purchased upon exercise of
the equity warrants;
- •
- the total number of preference shares or ordinary shares that can be purchased upon exercise of each equity warrant and the exercise price;
- •
- the date or dates on or after which the equity warrants may be exercised and any date or dates on which this right will expire in whole or in
part;
- •
- the designation and terms of any related preference shares or ordinary shares with which the equity warrants are issued and the number of the
equity warrants issued with each preference share or ordinary share;
- •
- if applicable, whether and when the equity warrants and the related preference shares or ordinary shares will be separately transferable;
- •
- if applicable, a discussion of material UK and U.S. federal income tax, accounting or other considerations applicable to the equity warrants;
and
- •
- any other terms of the equity warrants, including terms, procedures and limitations relating to the exchange and exercise of the equity warrants.
You may exchange your equity warrant certificates for new equity warrant certificates of different denominations but they must be exercisable for the same aggregate principal amount of equity securities. If your equity warrant certificates are in registered form, you may present them for registration of transfer and exercise them at the corporate trust office of the equity warrant agent or any other office indicated in the applicable prospectus supplement. Before the exercise of equity warrants, holders of equity warrants will not be entitled to receive dividends or exercise voting rights with respect to the equity securities that can be purchased upon such exercise, to receive notice as shareholders with respect to any meeting of shareholders for the election of our directors or any other matter, or to exercise any rights whatsoever as a shareholder.
Unless the applicable prospectus supplement states otherwise, the exercise price payable and the number of ordinary shares or preference shares that can be purchased upon the exercise of each equity warrant will be subject to adjustment in certain events, including the issuance of a stock dividend to holders of ordinary shares or preference shares or a stock split, reverse stock split, combination, subdivision or reclassification of ordinary shares or preference shares. Instead of adjusting the number of ordinary shares or preference shares that can be purchased upon exercise of each equity warrant, we may elect to adjust the number of equity warrants. No adjustments in the number of shares that can be purchased upon exercise of the equity warrants will be required until cumulative adjustments require an adjustment of at least 1% of those shares. We may, at our option, reduce the exercise price at any time. We will not issue fractional shares upon exercise of equity warrants, but we will pay the cash value of any fractional shares otherwise issuable.
Notwithstanding the previous paragraph, if there is a consolidation, merger or sale or conveyance of substantially all of our property, the holder of each outstanding equity warrant will have the right to the kind and amount of shares and other securities and property (including cash) receivable by a holder of the number of ordinary shares or preference shares into which that equity warrant was exercisable immediately prior to the consolidation, merger, sale or conveyance.
Exercise of Equity Warrants
Unless otherwise provided in the applicable prospectus supplement, each equity warrant will entitle the holder to purchase a number of equity securities for cash at an exercise price in each case that will be set forth in, or to be determined as set forth in, the prospectus supplement. Equity warrants may be exercised at any time up to the close of business on the expiration date specified in the applicable prospectus
39
supplement. After the close of business on the expiration date or any later date to which we extend the expiration date, unexercised equity warrants will become void. Equity warrants for the purchase of preference shares or ordinary shares may be issued in the form of American Depositary Receipts.
Equity warrants may be exercised as set forth in the prospectus supplement applicable to the particular equity warrants. Upon delivery of payment of the exercise price and the equity warrant certificate properly completed and duly executed at the corporate trust office of the equity warrant agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the equity securities that can be purchased upon such exercise of the equity warrants to the person entitled to them. If fewer than all of the equity warrants represented by the equity warrant certificate are exercised, a new equity warrant certificate will be issued for the remaining equity warrants. Holders of equity warrants will be required to pay any tax or governmental charge that may be imposed in connection with transferring the underlying equity securities in connection with the exercise of the equity warrants.
Street name and other indirect holders of equity warrants should consult their bank or brokers for information on how to exercise their equity warrants.
Modification and Waiver
There are three types of changes we can make to the equity warrant agreement and the equity warrants of any series.
Changes Requiring Approval of Each Holder
First, there are changes that cannot be made to the equity warrants or the equity warrant agreement under which they were issued without the approval of each holder. These are the following types of changes:
- •
- any increase in the exercise price;
- •
- any decrease in the total number of preference shares or ordinary shares that can be purchased upon exercise of any equity warrant;
- •
- any reduction of the period of time during which the equity warrants may be exercised;
- •
- any other change that materially and adversely affects the exercise rights of a holder of equity warrant certificates or the equity securities
that can be purchased upon such exercise; and
- •
- any reduction in the number of outstanding unexercised equity warrants whose consent is required for any modification or amendment described below under "—Changes Requiring a Majority Vote".
Changes Requiring a Majority Vote
The second type of change to the equity warrant agreement or equity warrants of any series is the kind that requires a vote of approval by the holders of not less than a majority in number of the then outstanding unexercised equity warrants of that series. This category includes all changes other than those listed above under "—Changes Requiring Approval of Each Holder" or changes that would not adversely affect holders of equity warrants in any material respect.
Changes Not Requiring Approval
The third type of change does not require any vote or consent by the holders of equity warrant certificates. This type is limited to clarifications, amendments, supplement and other changes that would not adversely affect such holders in any material respect.
Street name and other indirect holders of equity warrants should consult their bank or brokers for information on how approval may be granted or denied if we seek to change your equity warrants or the equity warrant agreement under which they were issued or request a waiver.
Merger, Consolidation, Sale or Other Dispositions
Under the equity warrant agreement for each series of equity warrants, we may consolidate with, or sell, convey or lease all or substantially all of our assets to, or merge with or into, any other corporation or firm to the extent permitted by the terms of the equity securities that can be purchased upon exercise of such equity warrants. If we consolidate with or merge into, or sell, lease or otherwise dispose of all or substantially all of our assets to, another corporation or firm, that corporation or firm must become legally
40
responsible for our obligations under the equity warrant agreements and equity warrants and we will be relieved from all such obligations.
Enforceability of Rights; Governing Law
The equity warrant agent will act solely as our agent in connection with the issuance and exercise of equity warrants and will not assume any obligation or relationship of agency or trust for or with any holder of an equity warrant certificate or any owner of a beneficial interest in equity warrants. The holders of equity warrant certificates, without the consent of the equity warrant agent, the holder of any equity securities issued upon exercise of equity warrants or the holder of any other equity warrant certificates, may, on their own behalf and for their own benefit, enforce, and may institute and maintain any suit, action or proceeding against us to enforce, or otherwise in respect of, their rights to exercise equity warrants evidenced by their equity warrant certificates. Except as may otherwise be provided in the applicable prospectus supplement, each issue of equity warrants and the related equity warrant agreement will be governed by the laws of England and Wales.
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DESCRIPTION OF PREFERENCE SHARES WE MAY OFFER
Provided that the directors have the required authority to allot shares, our articles of association allow us to issue new share capital with any rights or restrictions to it, subject to any special rights given to the holders of the existing share capital. The rights and restrictions attaching to such share capital can be decided either by shareholders by ordinary resolution or by the board of directors, provided that the rights or restrictions decided by the directors do not conflict with any decision by the shareholders. Under the laws of England and Wales, the board of directors requires express authority to allot preference shares which authority must either be given by an ordinary resolution of shareholders or be set out in the articles of association. Our board of directors currently has authority to allot shares up to a nominal amount of U.S.$[ · ] prior to the earlier of 30 September 2021 and the end of our next Annual General Meeting. Our board of directors also has authority to allot further equity securities up to a nominal amount of U.S.$[ · ] by way of a rights issue prior to the earlier of 30 September 2021 and our next Annual General Meeting.
If the preference shares have the right to participate only up to a specified amount of a dividend or capital distribution, we may issue them without complying with the provisions of English law that otherwise require companies to offer shares first to existing shareholders on a pre-emptive basis (these rights of existing shareholders are sometimes referred to as "pre-emptive rights"). However, pre-emptive rights would apply to any issuance of preference shares that are convertible into, or exchangeable for, other classes of our shares unless such rights are waived by a special resolution of our shareholders. Our shareholders have currently waived pre-emptive rights with respect to ordinary shares up to an aggregate nominal amount of U.S.$[ · ] issued for cash prior to the earlier of 30 September 2021 and our next Annual General Meeting.
Subject to the foregoing, applicable law and the rights of other holders of our share capital, we may seek to issue preference shares in one or more series with such terms, rights and restrictions the company by ordinary resolution decides, or if no resolution has been passed or the resolution does not make specific provision, with such terms, rights and restrictions as our board of directors decides, including the following:
- •
- the maximum number of shares in the series;
- •
- the designation of the series;
- •
- any dividend rate, or basis for determining such a rate, on the shares of the series;
- •
- whether or not dividends will be cumulative and, if so, from which date or dates;
- •
- whether the shares of the series will be redeemable and, if so, the dates, prices and other terms and conditions of redemption;
- •
- whether the shares of the series will be convertible into, or exchangeable for, shares of stock of any other class or classes and, if so, the
rate or rates of conversion or exchange, any terms of adjustment and whether the shares of the series will be convertible or exchangeable at our option, the option of holders of preference shares or
both;
- •
- whether the shares of the series will have voting rights in addition to those provided by law and, if so, the terms of those voting rights;
- •
- the rights of the shares of the series in the event of a voluntary or involuntary liquidation, dissolution or winding up of Vodafone; and
- •
- any other relative rights, powers, preferences, qualifications, limitations or restrictions relating to the shares of the series.
The specific terms of each series of preference shares will be described in a prospectus supplement. However, the description of the preference shares set forth in this prospectus and in any applicable prospectus supplement is not complete without reference to the documents that govern the preference shares. These include our articles of association and any document filed with the Companies Registrar in England and Wales setting out the terms of such preference shares. Any preference shares will be fully paid and non-assessable.
The terms and manner in which we may redeem shares must be either set forth in our articles of association (which would require us to amend our articles of association by special resolution to include such provisions) or be determined by our board of directors pursuant to the express authority set out in our articles of association. We must be authorized by our shareholders to repurchase any of our shares. Our
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shareholders have currently authorized us to make market purchases (e.g., purchases on the London Stock Exchange plc) of up to [ · ] of our existing ordinary shares (nominal value 2020/21 U.S. cents per share) at a price not exceeding the higher of 1) [ · ]% above the average closing price of such shares for the five business days on the London Stock Exchange plc prior to the date of purchase and 2) the higher of the last independent trade and the highest current independent bid as stipulated by as stipulated by Regulatory Technical Standards adopted by the European Commission under Article 5(6) of the Market Abuse Regulation. Any shares repurchased by us may be cancelled or held in treasury. Shares held in treasury may be reissued for cash or used to settle employee share schemes. The issuance for cash may include the release of a liability of Vodafone for a liquidated sum as well as an undertaking to pay cash to Vodafone within 90 days, but does not include selling shares in exchange for other shares or for goods or services.
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Street Name and Other Indirect Holders
We generally will not recognize investors who hold securities in accounts at banks or brokers as legal holders of securities. When we refer to the "holders" of securities, we mean only the actual legal and (if applicable) record holder of those securities. Holding securities in accounts at banks or brokers is called holding in "street name". If you hold securities in street name, we will recognize only the bank or broker or the financial institution the bank or broker uses to hold its securities. These intermediary banks, brokers and other financial institutions pass along principal, interest, dividends and other payments on the securities, either because they agree to do so in their customer agreements or because they are legally required. If you hold securities in street name, you should check with your own institution to find out:
- •
- how it handles securities payments and notices;
- •
- whether it imposes fees or charges;
- •
- how it would handle voting if it were ever required;
- •
- whether and how you can instruct it to send you securities and, if the securities are in registered form, have them registered in your own
name, so you can be a direct holder as described below; and
- •
- how it would pursue rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests.
Direct Holders
Our obligations, as well as the obligations of the trustee and those of any third parties employed by us or the trustee, under the securities run only to the person with whom the securities are deposited, in the case of debt securities in bearer form, or in the special situations described on page 45, to persons who are registered as holders of the securities, in the case of securities in registered form. As noted above, we do not have obligations to you if you hold in street name or other indirect means, either because you choose to hold securities in that manner or because the securities are issued in the form of global securities as described below. For example, once we make payment to the registered holder or person with whom the security is deposited, we have no further responsibility for the payment even if that holder is legally required to pass the payment along to you as a street name customer but does not do so.
Global Securities
What is a Global Security?
A global security is a special type of indirectly held security. If we choose to issue securities in the form of global securities, the ultimate beneficial owners can only be indirect holders. We may do this in two ways, depending on whether the security is in registered or bearer form.
If the security is in registered form, we require that the global security be registered in the name of a financial institution we select. If the security is a debt security in bearer form, we will deposit the global security with a financial institution we select.
In both cases, we require that the securities included in the global security not be transferred to the name of any other direct holder unless the special circumstances described below occur. The financial institution that acts as the sole direct holder of the global security is called the "depositary". Any person wishing to own a security must do so indirectly by virtue of an account with a broker, bank or other financial institution that in turn has an account with the depositary. A prospectus supplement relating to the offering of a series of securities will indicate whether the series will be issued only in the form of global securities, and whether such global securities will be in bearer form, fully registered form or both. For a description of provisions relating to global debt securities in bearer form, see "—Special Arrangements for Global Securities in Bearer Form" on page 45.
Special Investor Considerations for Global Securities
As an indirect holder, an investor's rights relating to a global security will be governed by the account rules of the investor's financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize this type of investor as a holder of securities and instead deal only with the depositary that holds the global security.
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If you are an investor in securities that are issued only in the form of global securities, you should be aware that:
- •
- You cannot get securities registered in your own name.
- •
- You cannot receive physical certificates for your interest in the securities.
- •
- You will be a street name holder and must look to your own bank or broker for payments on the securities and protection of your legal rights
relating to the securities, as explained earlier under "Street Name and Other Indirect Holders" on page 44.
- •
- You may not be able to sell interests in the securities to some insurance companies and other institutions that are required by law to own
their securities in the form of physical certificates.
- •
- The depositary's policies will govern payments, transfers, exchange and other matters relating to your interest in the global security. We and
the trustee have no responsibility for any aspect of the depositary's actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depositary
in any way.
- •
- The depositary will require that interests in a global security be purchased or sold within its system using same-day funds. By contrast, payment for purchases and sales in the market for corporate bonds and other securities is generally made in next-day funds. This difference could have some effect on how interests in global securities trade, but we do not know what that effect will be.
Special Situations in Which a Global Security Will Be Terminated
In a few special situations described below, a global security will terminate and interests in it will be exchanged for physical certificates representing securities. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own bank or brokers to find out how to have their interests in securities transferred to their own name so that they will be direct holders. The rights of street name investors and direct holders in the securities have been previously described in the subsections entitled "Street Name and Other Indirect Holders" and "Direct Holders" on page 44.
The special situations for termination of a global security are:
- •
- When the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary and, in the case of debt
securities in bearer form, we do not appoint a successor within 120 days.
- •
- When, in the case of debt securities in bearer form, The Depository Trust Company, referred to later as DTC, notifies the depositary that it is
unwilling, unable or no longer qualified to continue holding certificateless depositary interests issued by the depositary with respect to the global securities, and we do not appoint a successor
within 120 days.
- •
- When we, in the case of debt securities in bearer form, elect to exchange the global securities representing such debt securities for physical
certificates representing such debt securities.
- •
- When an event of default on the securities has occurred and has not been cured. Defaults on debt securities are discussed below under "Description of Debt Securities We May Offer—Default and Related Matters—Events of Default" on page 31.
The prospectus supplement(s) 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 neither we nor, in the case of debt securities, the trustee is responsible for deciding the names of the institutions that will be the initial direct holders. For more information, see "Description of Debt Securities We May Offer—Description of the Securities Depositary Agreement—Procedures for Issuing Definitive Securities" on page 34.
Special Arrangements for Global Securities in Bearer Form
If the debt securities of a series are issued in bearer form, we will deposit a global security representing the debt securities of that series with The Bank of New York Mellon, acting as "depositary", or any successor depositary who will hold the global security. In turn, it will issue certificateless depositary interests representing 100% of the global security and deposit them with or on behalf of DTC.
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You can hold a beneficial interest in the certificateless depositary interests only directly through DTC or indirectly through participants or indirect participants in DTC. These beneficial interests may be held in such denominations as are permitted by DTC. Indirect participants are banks, brokers, dealers, trust companies and other parties, including the Euroclear Bank S.A./N.V. ("Euroclear") system and Clearstream Banking, société anonyme ("Clearstream, Luxembourg"), that clear through or maintain a custodial relationship with a participant. For a description of the arrangements we have made with The Bank of New York Mellon relating to the deposit of the global security with The Bank of New York Mellon and The Bank of New York Mellon's issuance of certificateless depositary interests, see "Description of Debt Securities We May Offer—Description of the Securities Depositary Agreement" on page 33. Beneficial interests in the certificateless depositary interests are called book-entry securities.
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General
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 DTC in the United States, Clearstream, Luxembourg in Luxembourg and Euroclear in Brussels, Belgium. 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.
Special procedures to facilitate clearance and settlement have been established among these clearing systems to trade securities across borders in the secondary market. Where payments for registered securities in global form will be made in U.S. dollars, these procedures can be used for cross-market transfers and the securities will be cleared and settled on a delivery against payment basis.
Cross-market transfers of securities that are not in global form may be cleared and settled in accordance with other procedures that may be established among the clearing systems for these securities. Investors in securities that are issued outside of the United States, its territories and possessions must initially hold their interests through Euroclear, Clearstream, Luxembourg or the clearance system that is described in the applicable prospectus supplement.
The policies of DTC, Clearstream, Luxembourg, 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, Luxembourg or Euroclear or any of their direct or indirect participants. We have no responsibility for any aspect of the records kept by DTC, Clearstream, Luxembourg 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, Luxembourg, 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, Luxembourg and Euroclear as they are currently in effect. These systems could change their rules and procedures at any time.
As used in this section, any reference to securities also refers to book-entry securities issued in respect of securities in bearer form.
The Clearing Systems
DTC
DTC has advised us as follows:
- •
- DTC is:
- •
- a limited purpose trust company organized under the laws of the State of New York;
- •
- a member of the Federal Reserve System;
- •
- a "clearing corporation" within the meaning of the Uniform Commercial Code; and
- •
- a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act.
- •
- DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between
participants through electronic book-entry changes to accounts of its participants. This eliminates the need for physical movement of certificates.
- •
- Participants in DTC include securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other organizations. DTC is partially owned by some of these participants or their representatives.
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- •
- Indirect access to the DTC system is also available to banks, brokers, dealers and trust companies that have relationships with participants.
- •
- The rules applicable to DTC and DTC participants are on file with the SEC.
Clearstream, Luxembourg
Clearstream, Luxembourg has advised us as follows:
- •
- Clearstream, Luxembourg is a duly licensed bank organized as a société
anonyme incorporated under the laws of Luxembourg and is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector
(Commission de Surveillance du Secteur Financier).
- •
- Clearstream, Luxembourg holds securities for its customers and facilitates the clearance and settlement of securities transactions among them.
It does so through electronic book-entry changes to the accounts of its customers. This eliminates the need for physical movement of certificates.
- •
- Clearstream, Luxembourg provides other services to its participants, including safekeeping, administration, clearance and settlement of
internationally traded securities and lending and borrowing of securities. It interfaces with the domestic markets in over 50 countries through established depositary and custodial relationships.
- •
- Clearstream, Luxembourg's customers include worldwide securities brokers and dealers, banks, trust companies and clearing corporations and may
include professional financial intermediaries. Its U.S. customers are limited to securities brokers and dealers and banks.
- •
- Indirect access to the Clearstream, Luxembourg system is also available to others that clear through Clearstream, Luxembourg customers or that have custodial relationships with its customers, such as banks, brokers, dealers and trust companies.
Euroclear
Euroclear has advised us as follows:
- •
- Euroclear is incorporated under the laws of Belgium as a bank and is subject to regulation by the Belgian Banking and Finance Commission
(Commission Bancaire et Financiére) and the National Bank of Belgium (Banque Nationale de
Belgique).
- •
- Euroclear holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so
through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates.
- •
- Euroclear provides other services to its customers, including credit custody, lending and borrowing of securities and tri-party collateral
management. It interfaces with the domestic markets of several other countries.
- •
- Euroclear customers include banks, including central banks, securities brokers and dealers, banks, trust companies and clearing corporations
and may include certain other professional financial intermediaries.
- •
- Indirect access to the Euroclear system is also available to others that clear through Euroclear customers or that have relationships with
Euroclear customers.
- •
- All securities in Euroclear are held on a fungible basis. This means that specific certificates are not matched to specific securities clearance accounts.
Other Clearing Systems
We may choose any other clearing system for a particular series of securities. The clearance and settlement procedures for the clearing system we choose will be described in the applicable prospectus supplement.
Primary Distribution
The distribution of securities will be cleared through one or more of the clearing systems that we have described above or any other clearing system that is specified in the applicable prospectus supplement. Payment for securities will be made on a delivery versus payment or free delivery basis. These payment procedures will be more fully described in the applicable prospectus supplement.
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Clearance and settlement procedures may vary from one series of securities to another according to the currency that is chosen for the specific series of securities. Customary clearance and settlement procedures are described below.
We will submit applications to the relevant system or systems for the securities to be accepted for clearance. The clearance numbers that are applicable to each clearance system will be specified in the applicable prospectus supplement.
Clearance and Settlement Procedures—DTC
DTC participants that hold securities through DTC on behalf of investors will follow the settlement practices applicable to U.S. corporate debt obligations in DTC's Same-Day Funds Settlement System.
Securities will be credited to the securities custody accounts of these DTC participants against payment in the same-day funds, for payments in U.S. dollars, on the settlement date. For payments in a currency other than U.S. dollars, securities will be credited free of payment on the settlement date.
Clearance and Settlement Procedures—Euroclear and Clearstream, Luxembourg
We understand that investors that hold their securities through Euroclear or Clearstream, Luxembourg accounts will follow the settlement procedures that are applicable to conventional Eurobonds in registered form.
Securities will be credited to the securities custody accounts of Euroclear and Clearstream, Luxembourg participants on the business day following the settlement date, for value on the settlement date. They will be credited either free of payment or against payment for value on the settlement date.
Secondary Market Trading
Trading between DTC Participants
We understand that secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC's rules. Secondary market trading will be settled using procedures applicable to U.S. corporate debt obligations in DTC's Same-Day Funds Settlement System.
If payment is made in U.S. dollars, settlement will be in same-day funds. If payment is made in a currency other than U.S. dollars, settlement will be free of payment. If payment is made other than in U.S. dollars, separate payment arrangements outside of the DTC system must be made between the DTC participants involved.
Trading between Euroclear and/or Clearstream, Luxembourg Participants
We understand that secondary market trading between Euroclear and/or Clearstream, Luxembourg participants will occur in the ordinary way following the applicable rules and operating procedures of Euroclear and Clearstream, Luxembourg. Secondary market trading will be settled using procedures applicable to conventional Eurobonds in registered form.
Trading between a DTC Seller and a Euroclear or Clearstream, Luxembourg Purchaser
A purchaser of securities that are held in the account of a DTC participant must send instructions to Euroclear or Clearstream, Luxembourg at least one business day prior to settlement. The instructions will provide for the transfer of the securities from the selling DTC participant's account to the account of the purchasing Euroclear or Clearstream, Luxembourg participant. Euroclear or Clearstream, Luxembourg, as the case may be, will then instruct the common depositary for Euroclear and Clearstream, Luxembourg to receive the securities either against payment or free of payment.
The interests in the securities will be credited to the respective clearing system. The clearing system will then credit the account of the participant, following its usual procedures. Credit for the securities will appear on the next day, European time. Cash debit will be back-valued to, and the interest on the securities will accrue from, the value date, which would be the preceding day, when settlement occurs in New York. If the trade fails and settlement is not completed on the intended date, the Euroclear or Clearstream, Luxembourg cash debit will be valued as of the actual settlement date instead.
Euroclear participants or Clearstream, Luxembourg participants will need the funds necessary to process same-day funds settlement. The most direct means of doing this is to preposition funds for settlement,
49
either from cash or from existing lines of credit, as for any settlement occurring within Euroclear or Clearstream, Luxembourg. Under this approach, participants may take on credit exposure to Euroclear or Clearstream, Luxembourg until the securities are credited to their accounts one business day later.
As an alternative, if Euroclear or Clearstream, Luxembourg has extended a line of credit to them, participants can choose not to preposition funds and will allow that credit line to be drawn upon to finance settlement. Under this procedure, Euroclear participants or Clearstream, Luxembourg participants purchasing securities would incur overdraft charges for one business day (assuming they cleared the overdraft as soon as the securities were credited to their accounts). However, interest on the securities would accrue from the value date. Therefore, in many cases, the investment income on securities that is earned during that one business day period may substantially reduce or offset the amount of the overdraft charges. This result will, however, depend on each participant's particular cost of funds.
Because the settlement will take place during New York business hours, DTC participants will use their usual procedures to deliver securities to the depositary on behalf of Euroclear participants or Clearstream, Luxembourg participants. The sale proceeds will be available to the DTC seller on the settlement date. For the DTC participants, then, a cross-market transaction will settle no differently than a trade between two DTC participants.
Special Timing Considerations
You should be aware that investors will only be able to make and receive deliveries, payments and other communications involving securities through Clearstream, Luxembourg 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, Luxembourg 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 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, Luxembourg or Euroclear is used.
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This section describes the material UK and U.S. federal income tax consequences of acquiring, owning and disposing of ordinary shares or ADSs, preference shares or debt securities that we may issue. It is the opinion of Linklaters LLP as to matters of UK tax law and U.S. federal income tax law.
1. United Kingdom Taxation
The comments below are of a general nature, relate primarily to the position of U.S. resident investors and are not intended to be exhaustive. They are based on current United Kingdom law as applied in England and Wales and United Kingdom HM Revenue & Customs ("HMRC") published practice (which may not be binding on HMRC), both of which are subject to change, possibly with retrospective effect. They do not necessarily apply where the income is deemed for tax purposes to be the income of any other person and may not apply to certain classes of persons.
Please consult your own tax advisor concerning the consequences of owning the offered securities in your particular circumstances.
Debt Securities
Interest Payments
References to "interest" in this section mean amounts that are treated as interest for the purposes of UK tax law. The statements do not take account of any different definitions of interest that may prevail under any other law or which may be created by the terms and conditions of the debt securities or any related documentation. If debt securities are issued with a redemption premium, then any such premium may constitute interest for UK tax purposes and so be treated in the manner described below.
Payments of interest on debt securities will not be subject to withholding or deduction for or on account of UK taxation so long as the debt securities carry a right to interest and are and continue to be listed on a "recognized stock exchange" within the meaning of Section 1005 of the UK Income Tax Act 2007 (which includes the NASDAQ Global Market and the London Stock Exchange).
In all other cases, and subject to the availability of other reliefs under domestic law, payments of interest will generally be made after deduction of tax at a rate which is currently 20% Certain holders of debt securities who are U.S. residents will generally be entitled to receive payments free of deductions on account of UK tax under the double taxation treaty between the United Kingdom and the United States and may therefore be able to obtain a direction to that effect from HMRC. Holders of debt securities who are resident in other jurisdictions may also be able to receive payment free of deductions or subject to a lower rate of deduction under an appropriate double taxation treaty and may be able to obtain a direction to that effect.
However, such a direction will, in either case, only be issued on prior application to HMRC by the holder in question. If such a direction is not in place at the time a payment of interest is made, the person making the payment will be required to withhold tax, although a holder of debt securities resident in another jurisdiction who is entitled to relief may subsequently claim the amount withheld from HMRC.
The interest on the debt securities has a UK source and accordingly may be chargeable to UK tax by direct assessment. Where the interest is paid without withholding or deduction, the interest will not be assessed to UK tax in the hands of holders of the debt securities (other than certain trustees) who are not resident in the United Kingdom, except where:
- (i)
- in
the case of corporate holders, such persons carry on a trade in the United Kingdom through a permanent establishment; or
- (ii)
- such persons carry on a trade, profession or vocation in the United Kingdom through a UK branch or agency,
in connection with which the interest is received or to which the debt securities are attributable, in which case (subject to exemptions for interest received by certain categories of agent) tax may be levied on the UK permanent establishment or branch or agency.
In the event that payments of interest on debt securities are subject to withholding or deduction for or on account of UK taxation (for example, as a result of a failure to maintain a listing on a "recognized stock exchange") then the provisions referred to in "Description of Debt Securities We May Offer—Payment of
51
Additional Amounts" on page 28 may apply so that the net amount received by the holders after such reduction will not be less than the amount the holders would have received in the absence of such withholding or deduction.
Holders of the debt securities should note that the provisions relating to additional amounts referred to in "Description of Debt Securities We May Offer—Payment of Additional Amounts" on page 28 would not apply if HMRC sought to assess directly the person entitled to the relevant interest to UK tax. However exemption from, or reduction of, such UK tax liability might be available under an applicable double taxation treaty.
Provision of Information
Information relating to the debt securities, their holders and beneficial owners may be required to be provided to tax authorities in certain circumstances pursuant to domestic or international reporting and transparency regimes. This may include (but is not limited to) information relating to the value of the debt securities, amounts paid or credited with respect to the debt securities, details of the holders or beneficial owners of the debt securities and information and documents in connection with transactions relating to the debt securities. In certain circumstances, the information obtained by a tax authority may be provided to tax authorities in other countries. Some jurisdictions operate a withholding system in place of, or in addition to, such provision of information requirements.
Issue of Debt Securities to Form Part of Earlier Series
In the earlier section on page 14 entitled "Description of Debt Securities We May Offer—Types of Debt Securities" we set out certain situations in which we may issue additional debt securities to form part of an existing series. Any relevant UK tax consequences as a result of such an issue will be described in an applicable prospectus supplement.
Optional Tax Redemption
In the earlier section on page 28 entitled "Description of Debt Securities We May Offer—Special Situations—Optional Tax Redemption" we set out certain situations in which we may redeem debt securities. Any relevant UK tax consequences as a result of a change in, execution of or amendment to any laws or treaties or the official application or interpretation of any laws or treaties will be described in an applicable prospectus supplement.
Disposal (including Redemption)
This section offers general guidance only and in particular does not discuss the UK tax treatment relevant to convertible or exchangeable securities, asset linked securities or securities issued at anything other than the redemption amount or a fixed discount to their redemption amount.
Generally, a holder of debt securities who is not resident in the United Kingdom for tax purposes will not be liable for UK taxation in respect of a disposal of a debt security, or in respect of any gain accrued in respect of a debt security or any change in the value of a debt security.
This may not, however, be the case if:
- (i)
- in
the case of corporate holders, such persons carry on a trade in the United Kingdom through a permanent establishment; or
- (ii)
- in the case of other holders, such persons carry on a trade, profession or vocation in the United Kingdom through a UK branch or agency
in which, or for the purposes of which, trade, permanent establishment, branch or agency the debt securities are used, held or acquired; or to which the debt securities are otherwise attributable. Individuals who cease to be resident in the United Kingdom for a period of five years or less may also be subject to United Kingdom tax on chargeable gains in certain circumstances.
Inheritance Tax
A holder of debt securities who is an individual domiciled outside the United Kingdom (and is not deemed domiciled in the United Kingdom, for example, under certain rules relating to previous domicile or long residence) will generally not be liable for UK inheritance tax in respect of his holding of debt securities
52
(provided these do not have a UK situs). This will broadly be the case provided the register of debt securities in registered form is maintained outside the United Kingdom. If the debt securities are in bearer form, there may be a liability for inheritance tax if the debt securities are held in the United Kingdom. If so, exemption from any UK inheritance tax liability will normally be available for holders of debt securities who are domiciled in the United States and not nationals of the United Kingdom for the purposes of the United Kingdom-United States Inheritance and Gift Tax Treaty.
Stamp Duty and Stamp Duty Reserve Tax
UK stamp duty, or SDRT, will not normally be payable by a holder of debt securities which constitute loan capital for the purposes of Section 78 of the Finance Act 1986 on the issue or transfer of the debt securities, unless such securities carry or have carried:
- (i)
- a
right of conversion into shares or other securities or to the acquisition of shares or other securities (including securities of the same description);
- (ii)
- a
right to interest, the amount of which is or was determined to any extent by reference to the results of, or of any part of, a business or to the value of any
property;
- (iii)
- a
right to interest the amount of which exceeds a reasonable commercial return on the nominal amount of the capital; or
- (iv)
- a right on repayment to an amount which exceeds the nominal amount of the capital and is not reasonably comparable with what is generally repayable (in respect of a similar nominal amount of capital) under the terms of issue of loan capital included in the Official List of the Financial Conduct Authority and admitted to trading on the London Stock Exchange plc.
Warrants
A prospectus supplement will describe, if applicable, the UK tax consequences of the ownership of warrants.
Shares
Dividends
We will not be required to withhold tax at source when paying a dividend.
Non-UK resident shareholders will not generally be liable to income or corporation tax in the United Kingdom on dividends paid on the shares. However, this may not be the case if:
- (i)
- in
the case of corporate holders, such persons carry on a trade in the United Kingdom through a permanent establishment; or
- (ii)
- in the case of other holders, such persons carry on a trade, profession or vocation in the United Kingdom through a UK branch or agency
in connection with which the dividends are received or to which the relevant shareholding is attributable.
Disposals
A shareholder who is not resident in the United Kingdom for UK tax purposes will generally only be liable for UK taxation on chargeable gains in respect of his shares in the same circumstances in which he would be liable to such taxation in respect of debt securities (see above).
Inheritance Tax
An individual domiciled outside the United Kingdom is generally liable for UK inheritance tax in respect of assets situated in the United Kingdom. Our shares will probably be so situated. However, an exemption from any UK inheritance tax liability will normally be available for shareholders who are domiciled in the United States and not nationals of the United Kingdom for the purposes of the United Kingdom-United States Inheritance and Gift Tax Treaty.
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Stamp Duty and Stamp Duty Reserve Tax
No UK stamp duty or stamp duty reserve tax will arise on the issue of shares in registered form by the Company. In the case of shares issued to a clearance service or depositary receipt system, this is as a result of case law which has been accepted by HMRC. An instrument of transfer in respect of a transfer on sale of shares will generally be subject to UK stamp duty at a rate of 0.5% of the purchase price. The purchaser normally pays the stamp duty.
An agreement to transfer shares will normally give rise to a charge to stamp duty reserve tax at a rate of 0.5% of the agreed price. If a duly stamped transfer in respect of the agreement is produced within six years of the date on which the agreement is made (or, if the agreement is conditional, the date on which the condition is satisfied) any stamp duty reserve tax paid is generally repayable, usually with interest, and otherwise any stamp duty reserve tax charge yet to be paid is cancelled. Stamp duty reserve tax is, in general, payable by the purchaser.
Paperless transfers of shares within the CREST system are generally liable to stamp duty reserve tax, rather than stamp duty, at the rate of 0.5% of the purchase price. CREST is obliged to collect stamp duty reserve tax on relevant transactions settled within the CREST system. Deposits of shares into CREST will not generally be subject to stamp duty reserve tax, unless the transfer into CREST is itself for consideration.
Where shares are transferred (a) to, or to a nominee or an agent for, a person whose business is or includes the provision of clearance services or (b) to, or to a nominee or an agent for, a person whose business is or includes issuing depositary receipts, stamp duty or stamp duty reserve tax may be payable at the higher rate of 1.5% of the amount or value of the consideration given or, in certain circumstances, the value of the shares.
Except in relation to clearance services that have made an election under section 97A(1) of the Finance Act 1986 (to which the special rules outlined below apply), no stamp duty or stamp duty reserve tax is payable in respect of transfers within clearance services or depositary receipt systems.
There is an exception from the 1.5% charge on the transfer to, or to a nominee or agent for, a clearance service where the clearance service has made and maintained an election under section 97A(1) of the Finance Act 1986, which has been approved by HMRC. In these circumstances, stamp duty reserve tax, generally at the rate of 0.5% of the amount or value of the consideration payable for the transfer, will arise on any transfer of shares in the Company into such an account and on subsequent agreements to transfer such shares within such account.
2. U.S. Federal Income Taxation
This section applies to you only if you acquire the offered security in an offering governed by this prospectus and hold the offered security as a capital asset for U.S. federal income tax purposes. The discussion does not cover all aspects of U.S. federal income taxation that may be relevant to, or the actual tax effect that any of the matters described herein will have on, the acquisition, ownership or disposition of offered securities by particular investors (including consequences under the alternative minimum tax or net investment income tax), and does not address state, local, non-U.S. or other tax laws. It does not apply to you if you are a member of a special class of holders subject to special rules under U.S. federal income tax laws, including:
- •
- a dealer in securities or currencies;
- •
- a trader in securities that elects to use a mark-to-market method of accounting;
- •
- certain financial institutions;
- •
- an individual retirement account or other tax-deferred accounts;
- •
- a tax-exempt organization;
- •
- an insurance company;
- •
- a person that holds the offered security as part of a straddle or a hedging or conversion transaction;
- •
- a person subject to special rules for the taxable year of inclusion for accrual-basis taxpayers under Section 451(b) of the Internal
Revenue Code of 1986, as amended (the "Code");
- •
- a person liable for net investment income tax;
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- •
- in the case of ordinary shares, preference shares and warrants, a person that directly, indirectly or by attribution owns 5% or more of our
stock by vote or value; or
- •
- a U.S. holder (as defined below) whose functional currency is not the U.S. dollar.
This section is based on the Code, its legislative history, existing and proposed regulations, published rulings and court decisions, as well as on the income tax convention between the United States and the United Kingdom (the "Treaty"), all as of the date hereof. These laws are subject to change, possibly on a retroactive basis. In addition, this section is based in part on the representations of the depositary and the assumption that each obligation in the Deposit Agreement and any related agreement will be performed according to its terms.
For U.S. federal income tax purposes, this section is based on the assumption that the holders of ADSs will generally be treated as the owners of the corresponding number of shares held by the depositary and represented by those ADSs.
Accordingly, exchanges of shares for ADSs and ADSs for shares generally will not be subject to U.S. federal income tax. However, the U.S. Treasury has expressed concern that U.S. holders of depositary receipts (such as holders of American Depositary Receipts representing our ADSs) may be claiming foreign tax credits in situations where an intermediary in the chain of ownership between such holders and the issuer of the security underlying the depositary receipts, or a party to whom depositary receipts or deposited shares are delivered by the depositary prior to the receipt by the depositary of the corresponding securities, has taken actions inconsistent with the ownership of the underlying security by the person claiming the credit, such as a disposition of such security. Such actions may also be inconsistent with the claiming of the reduced tax rates that may be applicable to certain dividends received by certain non-corporate holders, as described below. Accordingly, (i) the creditability of any UK taxes and (ii) the availability of the reduced tax rates for any dividends received by certain non-corporate U.S. holders, each as described below, could be affected by actions taken by such parties or intermediaries.
The U.S. federal income tax consequences of acquiring, owning and disposing of warrants will be discussed in an applicable prospectus supplement.
The U.S. federal income tax treatment of a partner in an entity or arrangement treated as a partnership for U.S. federal income tax purposes that holds an offered security will depend on the status of the partner and the activities of the partnership. If you are an entity or arrangement treated as a partnership for U.S. federal income tax purposes, you should consult your own tax advisor concerning the U.S. federal income tax consequences to you and to your partners of the acquisition, ownership and disposition of an offered security by the partnership.
The summary of the U.S. federal income tax consequences set out below is for general information only. You should consult your own tax advisor regarding the U.S. federal, state and local and other tax consequences of acquiring, owning and disposing of an offered security in your particular circumstances.
This section addresses only U.S. federal income taxation.
United States Holders
This subsection describes the U.S. federal income tax consequences to a U.S. holder of acquiring, owning and disposing of ordinary shares, ADSs, preference shares or debt securities that we may issue. You are a U.S. holder if you are a beneficial owner of an offered security and you are for U.S. federal income tax purposes:
- •
- a citizen or resident of the United States;
- •
- a domestic corporation;
- •
- an estate whose income is subject to U.S. federal income tax regardless of its source; or
- •
- a trust if a U.S. court can exercise primary supervision over the trust's administration and one or more U.S. persons are authorized to control all substantial decisions of the trust, or the trust has validly elected to be treated as a domestic trust for U.S. federal income tax purposes.
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Taxation of Debt Securities
This subsection deals only with debt securities that are due to mature 30 years or less from the date on which they are issued. The U.S. 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 an applicable prospectus supplement. This subsection also does not discuss special tax considerations relevant to the acquisition, ownership and disposition by U.S. holders of debt securities issued in bearer form (other than U.S. holders holding beneficial interests in global securities issued in bearer form).
Payments of Interest
Except as described below on page 56 under "—Original Issue Discount—General", you will be taxed on any interest on your debt securities, 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 U.S. federal income tax purposes, reduced by the allocable amount of amortizable bond premium, subject to the discussion below. Interest paid by us on the debt securities and original issue discount, or "OID", if any, accrued with respect to the debt securities (as described below under "Original Issue Discount") generally will constitute income from sources outside the United States, subject to the rules regarding the foreign tax credit allowable to a U.S. holder. Under the foreign tax credit rules, interest paid will generally be "passive" category income.
Cash Basis Taxpayers
If you are a taxpayer that uses the cash receipts and disbursements method of accounting for U.S. federal income tax purposes and you receive an interest payment that is denominated in, or determined by reference to, a foreign currency, you must 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 will 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 will 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 U.S. Internal Revenue Service, or "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 exchange gain or loss (taxable as 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 will be treated as a discount debt security issued with OID if the debt security's stated redemption price at maturity exceeds its issue price by equal to or more than a statutorily defined de minimis amount.
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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 below on page 59 under "—Variable Rate Debt Securities".
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 the de minimis amount of 1/4 of 1% of its stated redemption price at maturity multiplied by the number of complete years to its maturity. Your debt security will have de minimis OID if the amount of the excess is less than the de minimis amount. If your debt security has de minimis OID, you must include a portion of 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 OID 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 OID in income before you receive cash attributable to that income. The amount of OID that you must include in income is calculated using a constant-yield method, and generally you will 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 must 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.
If a debt security provides for a scheduled accrual period that is longer than one year (for example, as a result of a long initial period on a debt security with interest that is generally paid on an annual basis), then stated interest on the debt security will not qualify as "qualified stated interest" under the applicable Treasury Regulations. As a result, the debt security would be a discount debt security. In that event, among other things, cash-method U.S. holders will be required to accrue stated interest on the debt security under the rules for OID described above, and all U.S. holders will be required to accrue OID that would otherwise fall under the de minimis threshold.
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.
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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 on page 56 under "—General", the excess is acquisition premium. If you do not make the election described below on page 58 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 will equal or exceed the amount of pre-issuance accrued interest.
If this election is made, a portion of the first stated interest payment will be treated as a return of the excluded pre-issuance accrued interest and not as an amount payable on your debt security. You should consult your own tax advisors concerning the U.S. federal income tax consequences of holding debt securities if this election is not made.
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 on page 56 under "—General", with the modifications described below. For purposes of this election, interest will include stated interest, OID, de minimis OID, 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 generally will equal your adjusted basis after you acquire it;
- •
- the issue date of your debt security will be the date you acquired it; and
- •
- no payments on your debt security will 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 will 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 any taxable year thereafter. Additionally, if you make this election for a market discount debt instrument, you will 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 that you currently own or later acquire. 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.
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Variable Rate Debt Securities
Your debt security will be a variable rate debt security if:
- •
- your debt security's issue price does not exceed the total non-contingent principal payments by more than the lesser of:
- •
- 1.5% of the product of the total non-contingent principal payments and the number of complete years to maturity from the issue
date; or
- •
- 15% of the total non-contingent principal payments; and
- •
- your debt security provides for stated interest, compounded or paid at least annually, only at:
- •
- one or more qualified floating rates;
- •
- a single fixed rate and one or more qualified floating rates;
- •
- a single objective rate; or
- •
- a single fixed rate and a single objective rate that is a qualified inverse floating rate; and
- •
- your debt security does not provide for any principal payments that are contingent (other than as described above).
Your debt security will 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 multiplied by either:
- •
- a fixed multiple that is greater than 0.65 but not more than 1.35; or
- •
- a fixed multiple greater than 0.65 but not more than 1.35, increased or decreased by a fixed rate; and
- •
- the value of the 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.
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 will 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 fixed throughout the term of the debt security or are not reasonably expected to significantly affect the yield on the debt security.
Your debt security will have a variable rate that is a single objective rate if:
- •
- the rate is not a qualified floating rate;
- •
- 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; and
- •
- the value of the 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 will 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 will 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
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- •
- the variations in the rate can reasonably be expected to inversely reflect contemporaneous variations in the cost of newly borrowed funds.
Your debt security will 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.
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 qualified stated interest and 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 must 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 must determine interest and OID accruals by using the method described in the previous paragraph. However, your variable rate debt security will 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.
If your debt security provides for interest at a variable rate but does not qualify as a variable rate debt security, then the security generally will be treated as a contingent payment debt obligation. The proper U.S. federal income tax treatment of such securities that are treated as contingent payment debt obligations will be more fully described in the applicable prospectus supplement.
Short-Term Debt Securities
In general, if you are an individual or other cash basis U.S. 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 U.S. 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 will be required to accrue OID on short-term debt securities on either a straight-line basis or, if you so elect, under the constant-yield
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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 will be ordinary income to the extent of the accrued OID, which will 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 will 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. You may elect to determine OID on a short-term debt security as if the short-term debt security had been originally issued to the U.S. holder at the U.S. holder's purchase price for the short-term debt security. This election shall apply to all obligations with a maturity of one year or less acquired by the U.S. holder on or after the first day of the taxable year to which the election applies and may not be revoked without the consent of the IRS.
Foreign Currency Discount Notes
If your discount debt security is denominated in, or determined by reference to, a foreign currency, you must 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 U.S. holder, as described above under "Payments of Interest". You may recognize exchange gain or loss (taxable as 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 equal to the difference between the amount received (translated into U.S. dollars at the spot rate on the date of receipt) an the amount previously accrued, regardless of whether you actually convert the payment into U.S. dollars.
Market Discount
You will 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 on page 56 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% of your debt security's stated redemption price at maturity or revised issue price, respectively, multiplied by the number of complete years from the date you acquire the debt security 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, exceeds the price you paid for the debt security by less than 1/4 of 1% multiplied by the number of complete years from the date you acquire the debt security 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 sale or retirement of your market discount debt security (including any payment on a market discount debt security that is not qualified stated interest) 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 will 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 U.S. IRS. If you own a market discount debt security and do not make this election, you will 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 sale or retirement of your debt security.
You will accrue market discount on your market discount debt security on a straight-line basis unless you elect to accrue market discount using a constant-yield method. If you make this election, it will apply only to the debt security with respect to which it is made and you may not revoke it.
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You will accrue market discount on a market discount debt security denominated in, or determined by reference to, a foreign currency in such foreign currency. If you elect to include market discount in income currently, you must translate the accrued market discount into U.S. dollars in the same manner as stated interest accrued by an accrual basis U.S. holder, as described above under "Payments of Interest". Upon the receipt of an amount attributable to accrued market discount, you may recognize exchange gain or loss (taxable as ordinary income or loss) determined in the same manner as for accrued interest or OID, regardless of whether you actually convert the payment into U.S. dollars. If you do not elect to include market discount in income currently, you will recognize, upon the sale or retirement of the debt security, the U.S. dollar value of the amount accrued, calculated at the spot rate on that date, and no part of this accrued market discount will be treated as exchange gain or loss.
Debt Securities Purchased at a Premium
If you purchase your debt security for an amount in excess of its principal amount, you may elect to treat the excess as amortizable bond premium. If you make this election, you will reduce the amount required to be included in your income each year with respect to interest on your debt security by the amount of amortizable bond premium allocable to that year, based on your debt security's yield to maturity. If your debt security is denominated in, or determined by reference to, a foreign currency, you will compute your amortizable bond premium in such foreign currency and your amortizable bond premium will reduce your interest income in such 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 will 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.
If you do not elect to take amortizable bond premium into account currently, you will recognize gain or loss on the sale or retirement of the debt security in the manner described below under "—Purchase, Sale and Retirement of the Debt Securities". See also "Original Issue Discount—Election to Treat All Interest as Original Issue Discount" on page 58.
Purchase, Sale and Retirement of the Debt Securities
Your adjusted tax basis in your debt security will generally be the U.S. dollar cost of your debt security:
- •
- increased by any OID or market discount, de minimis original issue discount and de minimis market
discount previously included in income with respect to your debt security; and then
- •
- reduced by any payments on your debt security that are not qualified stated interest payments and any amortizable bond premium applied to reduce interest on your debt security.
You will generally recognize gain or loss on the sale or retirement of your debt security equal to the difference between the amount realized on the sale or retirement and your tax basis in your debt security, in each case as determined in U.S. dollars. You should you consult your own tax advisor about how to account for proceeds received on the sale or retirement of debt securities that are not paid in U.S. dollars
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" on page 60 or "—Market Discount" on
page 61;
- •
- attributable to accrued but unpaid interest;
- •
- the rules governing contingent payment obligations apply; or
- •
- attributable to changes in exchange rates as described below.
Capital gain of a non-corporate U.S. holder is generally taxed at a reduced rate where the holder has a holding period greater 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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Indexed Debt Securities
The applicable prospectus supplement will discuss any special U.S. federal income tax rules with respect to debt securities the payments on which are determined by reference to any index and other debt securities that are subject to the rules governing contingent payment obligations which are not subject to the rules governing variable rate debt securities.
Occurrence of a Benchmark Transition Event for Notes Linked to or Referencing a Benchmark
If a Benchmark Transition Event occurs, it is possible that the Benchmark Transition Event will be treated as a deemed exchange of old notes for new notes under Section 1001 of the Code, which may be taxable to U.S. Holders. Recently released proposed U.S. Treasury Regulations, which are not yet in effect but upon which taxpayers may rely, provide that in certain circumstances, the replacement of LIBOR with a qualifying reference rate would not result in a deemed exchange under Section 1001 of the Code. U.S. Holders should consult with their own tax advisers regarding the potential consequences of a Benchmark Transition Event.
Treasury Regulations Requiring Disclosure of Reportable Transactions
U.S. taxpayers are required 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, or determined by reference to, a foreign currency, a U.S. holder (or a non-U.S. 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. 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.
Taxation of Shares and ADSs
Except as otherwise noted, the discussion below assumes that Vodafone is not a passive foreign investment company, or PFIC. (See "PFIC Rules" below on page 64).
Dividends
Under the U.S. federal income tax laws, if you are a U.S. holder, the gross amount of any distribution we pay out of our current or accumulated earnings and profits (as determined for U.S. federal income tax purposes) generally will be taxable to a U.S. holder as dividend income. If you are a non-corporate U.S. holder, dividends paid to you that constitute qualified dividend income will be taxable to you at the reduced rate normally applicable to long-term capital gains provided that you hold the shares or ADSs for more than 60 days during the 121-day period beginning 60 days before the ex-dividend date or, in the case of preference shares, if the dividend is attributable to a period or periods aggregating over 366 days, provided that you hold the preference shares for more than 90 days during the 181-day period beginning 90 days before the ex-dividend date and meet other holding period requirements. Dividends we pay with respect to the shares or ADSs generally are expected to be qualified dividend income. Distributions in excess of current and accumulated earnings and profits (as determined for U.S. federal income tax purposes) will be treated as a non-taxable return of capital to the extent of your basis in the shares or ADSs and thereafter as capital gain. However, we do not maintain calculations of our earnings and profits in accordance with U.S. federal income tax accounting principles. You should therefore assume that any distribution by us with respect to our shares or ADSs will be reported as ordinary dividend income. You should consult your tax advisor with respect to the appropriate U.S. federal income tax treatment of any distribution received from us.
Dividends will be taxable to you when you, in the case of shares, or the depositary, in the case of ADSs, receive the dividend, actually or constructively. Dividends will not be eligible for the dividends-received deduction generally allowed to U.S. corporations in respect of dividends received from other U.S. corporations. In the case of ordinary shares and preference shares, the amount of any dividend that you must include in your income as a U.S. holder will be the U.S. dollar value of the pound sterling payments made, determined at the spot pound sterling/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. If
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dividends received in pound sterling are converted into U.S. dollars on the day they are received, you generally will not be required to recognize exchange gain or loss in respect of the dividend income.
Dividends generally are expected to be income from sources outside the United States, and will, depending on your circumstances, be "passive" or "general" income. Special rules apply in determining the foreign tax credit limitation with respect to dividends that are subject to the long-term capital gains' tax rate. The U.S. foreign tax credit rules are very complex. You should consult your tax advisor with respect to the application of these rules to your particular circumstances.
Sale or Disposition of Shares and ADSs
If you are a U.S. holder and you sell or otherwise dispose of your shares or ADSs, you will recognize capital gain or loss for U.S. 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 shares or ADSs. Capital gain of a non-corporate U.S. holder is generally taxed at the long-term capital gains' tax rate where the holder has a holding period greater 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. You may recognize exchange gain or loss (taxable as ordinary income or loss) if the spot rate on the date that the ADS depositary disposes of foreign currency (or on the date of sale in the case of a non-electing accrual method U.S. holder) is different from the spot rate on the settlement date. You should you consult your own tax advisor about how to calculate the U.S. dollar value of the amount realized on the sale or disposition of shares or ADSs.
PFIC Rules
Vodafone believes that shares and ADSs should not be treated as stock of a PFIC for U.S. federal income tax purposes for the current year and foreseeable future, but this conclusion is a factual determination that is made annually and thus may be subject to change. If Vodafone were to be treated as a PFIC, unless you elect to be taxed annually on a mark-to-market basis with respect to the shares or ADSs, gain realized on the sale or other disposition of your shares or ADSs would in general not be treated as capital gain. Instead, you would be treated as if you had realized such gain and certain "excess distributions" ratably over your holding period for the shares or ADSs and would 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 shares or ADSs will be treated as stock in a PFIC if Vodafone were a PFIC at any time during your holding period in your shares or ADSs. Dividends that you receive from Vodafone will not be eligible for the special tax rates applicable to qualified dividend income if Vodafone is 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.
Non-U.S. Holders
This subsection describes the U.S. federal income tax consequences to a non-U.S. holder of acquiring, owning and disposing of ordinary shares or ADSs, preference shares or debt securities that we may issue. You are a non-U.S. holder if you are a beneficial owner of an offered security and you are, for U.S. federal income tax purposes:
- •
- a non-resident alien individual;
- •
- a foreign corporation; or
- •
- an estate or trust that in either case is not subject to U.S. federal income tax on a net income basis on income or gain from a debt security.
If you are a U.S. holder, this subsection does not apply to you.
Interest on Debt Securities
Under U.S. federal income tax law, and subject to the discussion of backup withholding below, if you are a non-U.S. holder, interest on a debt security paid to you is exempt from U.S. federal income tax, including withholding tax, unless the interest is "effectively connected" with your conduct of a trade or business in the United States and, if required by an applicable income tax treaty as a condition for subjecting you to U.S. taxation on a net income basis, the dividends are attributable to a permanent establishment that you
64
maintain in the United States. In such cases you generally will be taxed in the same manner as a U.S. holder.
Dividends on Shares or ADSs
If you are a non-U.S. holder, dividends paid to you in respect of shares or ADSs will not be subject to U.S. federal income tax unless the dividends are "effectively connected" with your conduct of a trade or business within the United States, and, if required by an applicable income tax treaty as a condition for subjecting you to U.S. taxation on a net income basis, the dividends are attributable to a permanent establishment that you maintain in the United States. In such cases you generally will be taxed in the same manner as a U.S. holder.
Capital Gains
If you are a non-U.S. holder, you generally will not be subject to U.S. federal income tax on gain realized on the sale, exchange or retirement of an ordinary share or ADS, preference share or debt security unless:
- •
- the gain is effectively connected with your conduct of a trade or business within 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 U.S. federal income taxation on a net income
basis, 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.
Information Reporting and Backup Withholding
If you are a non-corporate U.S. holder, information reporting requirements on IRS Form 1099 generally will apply to:
- •
- payments of principal, interest on a debt security, accrued OID on a discount debt security, and dividends or other taxable distributions with
respect to shares or ADSs within the United States, including payments made by wire transfer from outside the United States to an account you maintain in the United States; and
- •
- the payment of the proceeds from the sale of an offered security effected at a U.S. office of a broker.
Additionally, backup withholding will apply to such payments if you are a non-corporate U.S. holder that:
- •
- fails to provide an accurate taxpayer identification number;
- •
- is notified by the IRS that you have failed to report all interest and dividends required to be shown on your U.S. federal income tax returns;
or
- •
- in certain circumstances, fails to comply with applicable certification requirements.
Certain U.S. holders are not subject to backup withholding. You should consult your tax advisor as to your qualification for exemption from backup withholding and the procedure for obtaining an exemption.
Payments of principal, interest on a debt security, accrued OID on a discount debt security, and the proceeds of sale or other disposition of a debt security, as well as dividends or other taxable distributions with respect to shares or ADSs, by a U.S. paying agent or other U.S. intermediary to a holder of debt securities, shares, and ADSs, that is not a U.S. holder will not be subject to backup withholding tax and information reporting requirements if appropriate certification (Internal Revenue Service Form W-8BEN-E or some other appropriate form) is provided by the holder to the payor and the payor does not have actual knowledge that the certificate is false.
Foreign Financial Asset Reporting
U.S. taxpayers that own certain foreign financial assets, including debt and equity of foreign entities, if the aggregate value of all of these assets exceeds $50,000 at the end of the taxable year or $75,000 at any time during the taxable year (or, for certain individuals living outside the United States and married individuals filing joint returns, certain higher thresholds) may be required to file an information report with respect to such assets with their tax returns. Our debt securities, shares or ADSs are expected to constitute foreign financial assets subject to these requirements unless they are held in an account at a financial institution (in which case the account may be reportable if maintained by a foreign financial institution). You should consult your tax advisor regarding the application of the rules relating to foreign financial asset reporting.
65
We may sell the securities offered by this prospectus through agents, underwriters or dealers, or directly to one or more purchasers. In addition, third parties may sell securities under the registration statement for their own account.
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.
Agents
We may designate agents who agree to use their reasonable efforts to solicit purchases of securities during the term of their appointment to sell securities on a continuing basis.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so 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 pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us 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 a post-effective amendment).
Underwriters
If we use underwriters for the sale of securities, they will acquire securities for their own account. The underwriters 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 will apply to the underwriters' obligation to purchase securities, 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.
Selling Restrictions
United Kingdom
Each underwriter will represent, warrant and agree that, in connection with the distribution of the securities:
- (a)
- in
relation to any securities which have a maturity of less than one year (i) it is a person whose ordinary activities involve it in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of its business; and (ii) it has not offered or sold and will not offer or sell the securities other than to
persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses or who it is reasonable to
expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses where the issue of the securities would otherwise constitute a contravention of
Section 19 of the Financial Services and Markets Act 2000 ("FSMA") by the Company;
- (b)
- it
has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the securities in, from or otherwise
involving the United Kingdom; and
- (c)
- it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of
66
Section 21 of the FSMA) received by it in connection with the issue or sale of any securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company.
Restrictions on sales to EEA and UK RETAIL INVESTORS—Each underwriter will represent, warrant and agree that, in connection with the distribution of the securities, it has not offered, sold or otherwise made available, and will not offer, sell or otherwise make available, any securities to any retail investor in the European Economic Area, or the "EEA", or in the United Kingdom, or the "UK". For these purposes, a "retail investor" means a person who is one or more of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU, or "MiFID II"; (ii) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a "qualified investor" as defined in Regulation (EU) 2017/1129, or the "Prospectus Regulation". Consequently no key information document required by Regulation (EU) No 1286/2014, or the "PRIIPs Regulation", for offering or selling the securities or otherwise making them available to retail investors in the EEA or in the UK has been prepared and therefore offering or selling the securities or otherwise making them available to any retail investor in the EEA or in the UK may be unlawful under the PRIIPs Regulation.
Dealers
If we use dealers in the sale, unless we otherwise indicate in the applicable 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.
Direct Sales
We may also sell securities directly without using agents, underwriters, or dealers.
Securities Act; Indemnification
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act, and any discounts or commissions they receive from us and any profit on their resale of securities may be treated as underwriting discounts and commissions under the Securities Act. Agreements that we will enter into with underwriters, dealers or agents may entitle them to indemnification by us against various civil liabilities. These include liabilities under 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 and agents may be customers of, engage in transactions with, or perform services for, us in the ordinary course of business.
Market Making
In the event that we do not list securities of any type or 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.
Validity of Securities
The validity of the debt securities, warrants and preference shares will be passed upon for us by Linklaters LLP or any other law firm named in the applicable prospectus supplement as to certain matters of English and New York law. The validity of the debt securities and debt warrants will be passed upon for any underwriters or agents by Cleary Gottlieb Steen & Hamilton LLP or any other law firm named in the applicable prospectus supplement as to certain matters of New York law.
Enforceability of Certain Civil Liabilities
We are a public limited company incorporated under the laws of England and Wales. Many of our directors and officers, and some of the experts named in this prospectus, reside outside the United States, principally in the United Kingdom. In addition, although we have assets in the United States, a large portion of our assets and the assets of our directors and officers are located outside of the United States.
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As a result, U.S. investors may find it difficult in a lawsuit based on the civil liability provisions of the U.S. federal securities laws:
- (1)
- to
effect service within the United States upon us or our directors and officers located outside the United States;
- (2)
- to
enforce in U.S. courts or outside the United States judgments obtained against us or those persons in U.S. courts;
- (3)
- to
enforce in U.S. courts judgments obtained against us or those persons in courts in jurisdictions outside the United States; and
- (4)
- to enforce against us or those persons in the United Kingdom, whether in original actions or in actions for the enforcement of judgments of U.S. courts, civil liabilities based solely upon the U.S. federal securities laws.
68
The consolidated financial statements of Vodafone as of March 31, 2020 and for the year then ended, and the effectiveness of Vodafone's internal control over financial reporting as of March 31, 2020, appearing in Vodafone's Annual Report on Form 20-F for the year ended March 31, 2020, have been audited by Ernst & Young LLP, 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.
The consolidated financial statements of Vodafone as of March 31, 2019 and for each of the two years in the period ended March 31, 2019 incorporated in this prospectus by reference to the Annual Report on Form 20-F for the year ended March 31, 2020 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
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PART II OF FORM F-3
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers
Article 145 of Vodafone Group Public Limited Company's (the "Company") Articles of Association provides:
- •
- any liability incurred by or attaching to him in connection with any negligence, default, breach of duty or breach of trust by him in relation
to the Company or any Associated Company of the Company other than in the case of a director of the Company or any Associated Company:
- (i)
- any
liability to the Company or any Associated Company; and
- (ii)
- any
liability of the kind referred to in Section 234(3) of the Companies Act 2006; and
- •
- any other liability incurred by or attaching to him in the actual or purported execution and/or discharge of his duties and/or the exercise or purported exercise of his powers and/or otherwise in relation to or in connection with his duties, powers or office."
- •
- any liability incurred by or attaching to him in connection with any negligence, default, breach of duty or breach of trust by him in relation
to the Company or any Associated Company of the Company, if it is the trustee of an occupational pension scheme (within the meaning of Section 235(6) of the Companies Act 2006), in so far as
such liability relates to the Company's or any such Associated Companies' activities as trustee of such occupational pension scheme and other than in the case of a director of the Company or any
Associated Company any liability of the kind referred to in Section 235(3) of the Companies Act 2006; and
- •
- any other liability incurred by or attaching to him in the actual or purported execution and/or discharge of his duties and/or the exercise or purported exercise of his powers and/or otherwise in relation to or in connection with his duties, powers or office."
"145.1 Subject to the provisions of, and so far as may be permitted by and consistent with, the Companies Acts, rules made by the UK Listing Authority and local law as applicable, every director, Secretary and officer of the Company and of each Associated Company of the Company may be indemnified by the Company out of its own funds against:
"145.2 Subject to the provisions of, and so far as may be permitted by and consistent with, the Companies Acts, the rules of the UK Listing Authority and local law as applicable, every director, Secretary and officer of the Company and of each Associated Company of the Company may be indemnified by the Company out of its own funds against:
"145.3 Where a director, Secretary or officer is indemnified against any liability in accordance with this Article 145, such indemnity shall extend to all costs, charges, losses, expenses and liabilities incurred by him in relation thereto."
"145.4 In this Article Associated Company shall have the meaning given by Section 256 of the Companies Act 2006."
"145.5 So far as the Companies Acts allow, the Secretary and other officers, who are not directors of the Company or an Associated Company of the Company of the Company are exempted from any liability to the Company or any Associated Company of the Company where that liability would be covered by the indemnity in Article 145.1."
Sections 232 to 235 of the Companies Act 2006 provide as follows:
"232. Provisions protecting directors from liability
- (1)
- Any
provision that purports to exempt a director of a company (to any extent) from any liability that would otherwise attach to him in connection with any
negligence, default, breach of duty or breach of trust in relation to the company is void.
- (2)
- Any provision by which a company directly or indirectly provides an indemnity (to any extent) for a director of the company, or of an associated company, against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he is a director is void, except as permitted by—
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- (a)
- section 233
(provision of insurance),
- (b)
- section 234
(qualifying third party indemnity provision), or
- (c)
- section 235
(qualifying pension scheme indemnity provision).
- (3)
- This
section applies to any provision, whether contained in a company's articles or in any contract with the company or otherwise.
- (4)
- Nothing in this section prevents a company's articles from making such provision as has previously been lawful for dealing with conflicts of interest.
233. Provision of insurance
Section 232(2) (voidness of provisions for indemnifying directors) does not prevent a company from purchasing and maintaining for a director of the company, or of an associated company, insurance against any such liability as is mentioned in that subsection.
234. Qualifying third party indemnity provision
- (1)
- Section 232(2)
(voidness of provisions for indemnifying directors) does not apply to qualifying third party indemnity provision.
- (2)
- Third
party indemnity provision means provision for indemnity against liability incurred by the director to a person other than the company or an associated company.
Such provision is qualifying third party indemnity provision if the following requirements are met.
- (3)
- The
provision must not provide any indemnity against—
- (a)
- any
liability of the director to pay—
- (i)
- a
fine imposed in criminal proceedings, or
- (ii)
- a
sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising); or
- (b)
- any
liability incurred by the director—
- (i)
- in
defending criminal proceedings in which he is convicted, or
- (ii)
- in
defending civil proceedings brought by the company, or an associated company, in which judgment is given against him, or
- (iii)
- in
connection with an application for relief (see subsection (6)) in which the court refuses to grant him relief.
- (4)
- The
references in subsection (3)(b) to a conviction, judgment or refusal of relief are to the final decision in the proceedings.
- (5)
- For
this purpose—
- (a)
- a
conviction, judgment or refusal of relief becomes final—
- (i)
- if
not appealed against, at the end of the period for bringing an appeal, or
- (ii)
- if
appealed against, at the time when the appeal (or any further appeal) is disposed of; and
- (b)
- an
appeal is disposed of—
- (i)
- if
it is determined and the period for bringing any further appeal has ended, or
- (ii)
- if
it is abandoned or otherwise ceases to have effect.
- (6)
- The reference in subsection (3)(b)(iii) to an application for relief is to an application for relief under—
section 661(3) or (4) (power of court to grant relief in case of acquisition of shares by innocent nominee), or
section 1157 (general power of court to grant relief in case of honest and reasonable conduct).
235. Qualifying pension scheme indemnity provision
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- (1)
- Section 232(2)
(voidness of provisions for indemnifying directors) does not apply to qualifying pension scheme indemnity provision.
- (2)
- Pension
scheme indemnity provision means provision indemnifying a director of a company that is a trustee of an occupational pension scheme against liability
incurred in connection with the company's activities as trustee of the scheme. Such provision is qualifying pension scheme indemnity provision if the following requirements are met.
- (3)
- The
provision must not provide any indemnity against—
- (a)
- any
liability of the director to pay—
- (i)
- a
fine imposed in criminal proceedings, or
- (ii)
- a
sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising); or
- (b)
- any
liability incurred by the director in defending criminal proceedings in which he is convicted.
- (4)
- The
reference in subsection (3)(b) to a conviction is to the final decision in the proceedings.
- (5)
- For
this purpose—
- (a)
- a
conviction becomes final—
- (i)
- if
not appealed against, at the end of the period for bringing an appeal, or
- (ii)
- if
appealed against, at the time when the appeal (or any further appeal) is disposed of; and
- (b)
- an
appeal is disposed of—
- (i)
- if
it is determined and the period for bringing any further appeal has ended, or
- (ii)
- if
it is abandoned or otherwise ceases to have effect.
- (6)
- In this section "occupational pension scheme" means an occupational pension scheme as defined in section 150(5) of the Finance Act 2004 (c. 12) that is established under a trust."
Section 1157 of the Companies Act 2006 provides as follows—
"1157.Power of court to grant relief in certain cases
- (1)
- If
in proceedings for negligence, default, breach of duty or breach of trust against—
- (a)
- an
officer of a company, or
- (b)
- a person employed by a company as auditor (whether he is or is not an officer of the company),
it appears to the court hearing the case that the officer or person is or may be liable but that he acted honestly and reasonably, and that having regard to all the circumstances of the case (including those connected with his appointment) he ought fairly to be excused, the court may relieve him, either wholly or in part, from his liability on such terms as it thinks fit.
- (2)
- If
any such officer or person has reason to apprehend that a claim will or might be made against him in respect of negligence, default, breach of duty or breach of
trust—
- (a)
- he
may apply to the court for relief, and
- (b)
- the
court has the same power to relieve him as it would have had if it had been a court before which proceedings against him for negligence, default, breach of duty
or breach of trust had been brought.
- (3)
- Where a case to which subsection (1) applies is being tried by a judge with a jury, the judge, after hearing the evidence, may, if he is satisfied that the defendant (in Scotland, the defender) ought in pursuance of that subsection to be relieved either in whole or in part from the liability sought to be enforced against him, withdraw the case from the jury and forthwith direct judgment to be entered for the defendant (in Scotland, grant decree of absolvitor) on such terms as to costs (in Scotland, expenses) or otherwise as the judge may think proper."
II-3
The Company has obtained directors' and officers' insurance coverage, which, subject to policy terms and limitations, includes coverage to reimburse the Company for amounts that it may be required or permitted by law to pay or indemnify its directors or officers.
II-4
Note:
- *
- To be filed by amendment
II-5
The undersigned registrant 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 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% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
- (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 (l)(i), (l)(ii) and (l)(iii) 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 the registrant 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 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 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)(l)(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 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 the prospectus relates, and the
II-6
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, the
undersigned registrant undertakes that in a primary offering of securities of the 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 the 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 the undersigned registrant or used or referred to by the 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 the undersigned registrant; and
- (iv)
- Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 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.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has 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 registrant, of expenses incurred or paid by a director, officer or controlling person of the registrant 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 registrant will, unless in the opinion of its 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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SIGNATURE OF VODAFONE GROUP PUBLIC LIMITED COMPANY
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 London, England on July 29, 2020.
| VODAFONE GROUP PUBLIC LIMITED COMPANY | ||||
By: |
/s/ ROSEMARY E. S. MARTIN Rosemary E. S. Martin Group General Counsel and Company Secretary |
|||
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each of Margherita Della Valle, Rosemary Martin and Jamie Stead (with full power to each of them to act alone), his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, 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 "SEC") in connection with the registration under the Securities Act of the securities referred to herein (the "Securities") and any securities or Blue Sky law 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 Officer, Director or Authorised Representative in the United States of America or in any other capacity with respect to this Registration Statement and any registration statement in respect of the Securities that is to be effective upon filing pursuant to Rule 462(b) (collectively, the "Registration Statement") and/or such other form or forms as may be appropriate to be filed with the SEC 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.
II-8
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities indicated on July 29, 2020.
| By: | /s/ GERARD KLEISTERLEE Gerard Kleisterlee Chairman |
By: | /s/ NICK READ Nick Read Executive Director and Chief Executive |
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By: |
/s/ MARGHERITA DELLA VALLE Margherita Della Valle Executive Director and Group Chief Financial Officer |
By: |
/s/ JEAN-FRANCOIS VAN BOXMEER Jean-Francois Van Boxmeer Non-executive Director |
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By: |
/s/ VALERIE GOODING Valerie Gooding Senior Independent Director |
By: |
/s/ SIR CRISPIN DAVIS Sir Crispin Davis Non-executive Director |
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By: |
/s/ MICHEL DEMARÉ Michel Demaré Non-executive Director |
By: |
/s/ DAME CLARA FURSE Dame Clara Furse Non-executive Director |
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By: |
/s/ RENEE JAMES Renee James Non-executive Director |
By: |
/s/ MARIA AMPARO MORALEDA MARTINEZ Maria Amparo Moraleda Martinez Non-executive Director |
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By: |
/s/ DAVID NISH David Nish Non-executive Director |
By: |
/s/ SANJIV AHUJA Sanjiv Ahuja Non-executive Director |
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PUGLISI & ASSOCIATES Authorised Representative in the United States of America |
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By: |
/s/ DONALD J. PUGLISI Donald J. Puglisi Managing Director |
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II-9
Note:
- *
- To be filed by amendment
II-10
Form of Underwriting Agreement
Vodafone Group Public Limited Company
Debt Securities
Underwriting Agreement
To the Representatives named from time to time in the applicable Pricing Agreement hereinafter described.
Ladies and Gentlemen:
From time to time Vodafone Group Public Limited Company, a public limited company incorporated in England and Wales (the “Company”), proposes to enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine and, subject to the terms and conditions stated herein and therein, to issue and sell to the several firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities (the “Securities”) specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the “Designated Securities”).
The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the indenture (the “Indenture”) identified in such Pricing Agreement. In addition, the Pricing Agreement may contain, if appropriate, the terms and the conditions upon which the Designated Securities are to be offered or sold outside the United States and any provisions relating thereto.
1. Particular sales of Designated Securities may be made from time to time by the Company to the Underwriters of such Securities, for whom the firms designated as representatives of the Underwriters of such Securities in the Pricing Agreement relating thereto will act as representatives (the “Representatives”). The term “Representatives” also refers to a single firm acting as sole representative of the Underwriters and to an Underwriter or Underwriters who act without any firm being designated as its or their representatives. This Underwriting Agreement shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase the Securities except as set forth in a Pricing Agreement, it being understood that the obligation of the Company to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the applicable Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters, the principal amount of such Designated Securities to be purchased by each Underwriter and the underwriting discount and/or commission, if any, payable to the Underwriters with respect thereto and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The applicable Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the registration statement and prospectus with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for the use of Form F-3, and a registration statement on Form F-3 (File No. 333- ), including a prospectus, relating to the Securities of the Company has been filed with the Securities and Exchange Commission (the “Commission”) in accordance with applicable regulations of the Commission under the Securities Act of 1933, as amended (the “Act”), and has been declared effective under the Act. Such registration statement, as amended to the date of the applicable Pricing Agreement, is hereinafter referred to as the “Registration Statement”, and such prospectus in the form in which it has most recently been filed with the Commission on or prior to the date of the applicable Pricing Agreement (the “Base Prospectus”), as proposed to be supplemented by a prospectus supplement relating to the Designated Securities (the “Prospectus Supplement”) to be filed pursuant to Rule 424 under the Act, is hereinafter referred to as the “Prospectus”. Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents which were filed under the Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on or before the date and time of the applicable Pricing Agreement, and incorporated by reference in the Registration Statement and the Prospectus, excluding any documents or portions of such documents which are deemed under the rules and regulations of the Commission under the Act not to be incorporated by reference, and, in the case of the Registration Statement, including any prospectus supplement filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of the Registration Statement; and any reference herein to the terms “amend”, “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the date of the applicable Pricing Agreement. For purposes of this Agreement, “Effective Time” with respect to the Registration Statement means such date and time as of which any part of the Registration Statement filed prior to the execution and delivery of the applicable Pricing Agreement was declared effective by the Commission or has become effective upon filing pursuant to Rule 430B(f)(2) or Rule 462(c) under the Act. “Pricing Prospectus” means the Base Prospectus, as amended and supplemented immediately prior to the applicable time specified in the applicable Pricing Agreement (the “Applicable Time”), including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof, provided that, for purposes of this definition, information contained in a form of prospectus that is deemed retroactively to be part of the Registration Statement pursuant to Rule 430B under the Act shall be considered to be included in the Pricing Prospectus as of the actual time that form of prospectus is filed with the Commission pursuant to Rule 424(b) under the Act;
(b) No stop order suspending the effectiveness of the Registration Statement (as amended or supplemented) has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened, and no order preventing or suspending the use of the Prospectus or any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Designated Securities (an “Issuer Free Writing Prospectus”) has been issued by the Commission;
(c) At the Effective Time, the Registration Statement and the Prospectus conformed, and any amendments thereof and supplements thereto relating to the Designated Securities will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder; the Indenture conforms in all material respects to the requirements of
the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) and the rules and regulations of the Commission thereunder; and neither the Registration Statement at the Effective Time nor the Prospectus as of the date thereof and, as amended or supplemented, at the Time of Delivery (as defined below) of the Designated Securities included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the case of the Registration Statement, not misleading, or in the case of the Prospectus, in light of the circumstances in which they were made, not misleading; provided, however, that the Company makes no representations as to (i) that part of the Registration Statement which shall constitute a Trustee’s Statement of Eligibility and Qualifications (Form T-1) under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter of Designated Securities by the Representatives expressly for use in such documents;
(d) The Pricing Prospectus, as supplemented by the final term sheet prepared and filed pursuant to Section 5(a) hereof (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on a schedule to the applicable Pricing Agreement (if any) does not conflict with the information contained in the Registration Statement, the Prospectus Supplement or the Prospectus, and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations as to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter of Designated Securities by the Representatives expressly for use in such documents or the Pricing Disclosure Package;
(e) Each document incorporated by reference in the Pricing Prospectus or the Prospectus, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; any further documents so filed and incorporated by reference in the Pricing Prospectus or the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that (i) the Company makes no representations as to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter of Designated Securities by the Representatives expressly for use in such documents, and (ii) no such documents were filed with the Commission following the Commission’s close of business on the business day immediately prior to the date
of the applicable Pricing Agreement and prior to the execution of the applicable Pricing Agreement, except as set forth on a schedule to the applicable Pricing Agreement;
(f) The Company has been duly incorporated and is validly existing as a public limited company in good standing under the laws of England and Wales, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, as amended or supplemented;
(g) All material consents, approvals, authorizations, orders, registrations, clearances and qualifications of or with any court or governmental agency or body or any stock exchange authorities having jurisdiction over the Company or any of its subsidiaries required for the issue and sale of the Designated Securities and for the execution and delivery by the Company of the applicable Pricing Agreement to be duly and validly authorized, have been obtained or made and are in full force and effect; and
(h) The Company was or is not at (i) the earliest time after the filing of the Registration Statement pursuant to which the Company or another offering participant makes a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Designated Securities or (ii) at the time of the applicable Pricing Agreement, an “ineligible issuer,” as defined in Rule 405 under the Act, including the Company or any subsidiary in the preceding three years not having been convicted of a felony or misdemeanour or having been made the subject of a judicial or administrative decree or order as described in Rule 405 under the Act.
3. Upon the execution of the applicable Pricing Agreement and the authorization by the Representatives of the release of the Designated Securities, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to the applicable Pricing Agreement, in the form specified in such Pricing Agreement, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer of Federal (same day) funds to the account specified by the Company, in the currency specified in such Pricing Agreement, all in the manner and at the place and time and date specified in such Pricing Agreement or at such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the “Time of Delivery” for such Securities.
5. The Company agrees with each of the Underwriters of any Designated Securities:
(a) To prepare a final term sheet, containing solely a description of the Designated Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule, and to prepare the Prospectus as amended or supplemented in relation to the applicable Designated Securities in a form approved by the Representatives, which approval shall not be unreasonably withheld, and to file such Prospectus pursuant to Rule 424(b) under the Act no later than the Commission’s close of business on the second business day following the execution and delivery of the applicable Pricing Agreement or, if applicable, such earlier time as may be required by such Rule; to make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the applicable Pricing Agreement and prior to the Time of Delivery for the Designated Securities which shall be reasonably disapproved by the Representatives for such Securities promptly after reasonable notice thereof; to advise the Representatives promptly
of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to file promptly all reports required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of such Designated Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Designated Securities, of the suspension of the qualification of such Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Designated Securities or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Designated Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably request and to comply with such laws so as to permit the continuance of the distribution of the Designated Securities therein in such jurisdictions for as long as may be necessary to complete the distribution of such Designated Securities, provided that in connection therewith the Company shall not be (i) required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or (ii) obligated to pay or reimburse the Underwriters for expenses (including fees and disbursements of counsel for the Underwriters) to the extent that such payment or reimbursement, together with prior payments or reimbursements, exceed, in the aggregate, $10,000 in connection with the offering and sale of Designated Securities under state securities laws pursuant to this Agreement;
(c) To furnish the Underwriters with copies of the Prospectus as amended or supplemented in New York City in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required under the Act at any time in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives and upon their request to file such document and to prepare and furnish, subject to the proviso below, without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; provided, however, that in case any Underwriter is required under the Act to deliver a Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with the offering or sale of Designated Securities at any time more than 30 days after the date of
the applicable Pricing Agreement, the cost of such preparation and furnishing of such amended or supplemented Prospectus shall be borne by the Underwriters of such Designated Securities;
(d) To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158 under the Act);
(e) During the period beginning from the date of the applicable Pricing Agreement and continuing to and including the later of (i) the termination of trading restrictions for such Designated Securities, as notified to the Company by the Representatives and (ii) the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company which mature more than one year after such Time of Delivery and which are substantially similar to such Designated Securities, without the prior written consent of the Representatives, which consent shall not be unreasonably withheld; and
(f) If the Company elects to rely upon Rule 462(b) under the Act, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the applicable Pricing Agreement, and at the time of filing to either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
6.
(a) The Company represents and agrees that (i) without the prior written consent of the Underwriters, other than the final term sheet prepared and filed pursuant to Section 5(a) hereof, it has not made and will not make any offer relating to the Designated Securities that (A) would constitute an Issuer Free Writing Prospectus or (B) would otherwise constitute a “free writing prospectus” as defined in Rule 405 under the Act, required to be filed with the Commission, and (ii) it has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending.
(b) Each Underwriter represents and agrees that, without the prior written consent of the Company and the other Underwriters, it has not made and will not make any offer relating to the Designated Securities that (i) would constitute an Issuer Free Writing Prospectus, as defined in Rule 433 under the Act or (ii) would otherwise constitute a “free writing prospectus” as defined in Rule 405 under the Act, required to be filed with the Commission; provided, however, that the Company consents to the use by each Underwriter of a “free writing prospectus” that contains only (i) information describing the preliminary terms of the Designated Securities or their offering which, in their final form, will not be inconsistent with the final term sheet of the Company prepared and filed pursuant to Section 5(a) hereof and (ii) information that describes the final terms of the Designated Securities or their offering and that is included in the final term sheet of the Company prepared and filed pursuant to Section 5(a) hereof.
(c) Any such “free writing prospectus” the use of which has been consented to by the Company or the Underwriters (including the final term sheet prepared and filed pursuant to Section 5(a) hereof) will be listed in an appendix to the applicable Pricing Agreement.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or otherwise producing any Agreement among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) subject to Section 5(b)(ii) hereof, all expenses in connection with the qualification of the Securities for offering and sale under state securities laws if required, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and Legal Investment Surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the reasonable fees and expenses of any Trustee and any agent of any Trustee and the reasonable fees and disbursements of counsel for any Trustee in connection with any Indenture and the Securities; (viii) all U.K. stamp or other issuance or transfer taxes (if any) arising as a result of the issuance, sale and delivery of the Securities by the Underwriters to the initial purchasers thereof in the manner contemplated under this Agreement; and (ix) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 7. It is understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters of any Designated Securities under the applicable Pricing Agreement shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties of the Company in or incorporated by reference in the applicable Pricing Agreement are, at and as of the Time of Delivery for such Designated Securities, true and correct in all material respects, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The final term sheet contemplated by Section 5(a) hereof shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433(d) under the Act and the Prospectus as amended or supplemented in relation to such Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of the applicable Pricing Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
(b) U.S. Counsel for the Underwriters shall have furnished to the Representatives such written opinion or opinions, dated the Time of Delivery for such Designated Securities with respect to this Agreement, the Designated Securities, the Indenture, the Underwriting Agreement, the Pricing Disclosure Package, the Prospectus and the Registration Statement (as amended or
supplemented at the Time of Delivery for such Designated Securities) and other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters;
(c) U.S. Counsel for the Company shall have furnished to the Representatives its written opinion, dated the Time of Delivery for such Designated Securities, substantially similar in form and substance to Schedule 8(c)(i) attached hereto with such additions or changes thereto as the Underwriters may reasonably request and a letter, dated the Time of Delivery for such Designated Securities, substantially similar in form and substance to Schedule 8(c)(ii) attached hereto;
(d) English counsel for the Company, shall have furnished to the Representatives their written opinion, dated the Time of Delivery for such Designated Securities, substantially similar in form and substance to Schedule 8(d) attached hereto with such additions or changes thereto as the Underwriters may reasonably request;
(e) The Group General Counsel and Company Secretary (or any other person reasonably agreed by the Representatives in the applicable Pricing Agreement) shall have furnished to the Representatives his or her written opinion, dated the Time of Delivery for such Designated Securities, substantially similar in form and substance to Schedule 8(e) attached hereto;
(f) On the date of the applicable Pricing Agreement and at the Time of Delivery for the Designated Securities, each firm of independent accountants that has certified financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Underwriters and the directors of the Company a letter, dated the respective dates of delivery thereof, to the effect set forth in Schedule 8(f) hereto, and with respect to such other matters as the Underwriters may reasonably request and in form and substance satisfactory to the Underwriters;
(g) Except as contemplated in the Prospectus, as amended or supplemented, since the Applicable Time there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its subsidiaries considered as a whole which the Representatives conclude, in their judgment, after consultation with the Company, materially impairs the investment quality of the Designated Securities so as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities as contemplated by the Prospectus and at or after the Applicable Time there shall not have been any decrease in the ratings of any of the Company’s debt securities (or any public announcement that the ratings of any of the Company’s debt securities are under surveillance or review, with negative implications) by Moody’s Investors Service, Inc., Fitch Ratings Ltd. or Standard & Poor’s Rating Services, a division of the McGraw-Hill Companies, Inc.;
(h) At or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the London Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on The NASDAQ Global Select Market LLC or on the London Stock Exchange plc; (iii) a general moratorium on commercial banking activities in New York City or London declared by relevant authorities; or (iv) a change or development involving a prospective change in taxation in the United Kingdom affecting the transfer of the Securities or the imposition of exchange controls by the United States or the United Kingdom; (v) a material outbreak or escalation of hostilities involving the United States or the United Kingdom or the declaration by the United States or the United Kingdom of a national emergency or war or (vi) the occurrence of any material adverse change in the existing financial, political or economic conditions in the
United States, the United Kingdom or elsewhere, where the effect of any such event specified in paragraphs (i) through (vi) above is in the reasonable judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus as amended or supplemented relating to the Designated Securities, provided that the Representatives shall have consulted with the Company to the extent practicable prior to exercising their rights under this paragraph (h);
(i) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of the applicable Pricing Agreement; and
(j) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (g) of this Section.
9.
(a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, the Pricing Prospectus, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, in each case, relating to the Designated Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus, any preliminary Prospectus Supplement, the Registration Statement or the Prospectus, as amended or supplemented, the Pricing Prospectus or any Issuer Free Writing Prospectus, in each case, relating to the Designated Securities, or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus as amended or supplemented relating to such Securities; and, provided further, that, with respect to any untrue statement or alleged untrue statement in, or omission or alleged omission from, any preliminary prospectus, the Pricing Prospectus or any Issuer Free Writing Prospectus, the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased the Designated Securities concerned, to the extent that such sale was made in a transaction covered by the Registration Statement and any such loss, claim, damage or liability of such Underwriter results from the fact that there was not conveyed to such person, at or prior to the time of the sale of such Designated Securities to such
person, a copy of an amended or supplemented Pricing Prospectus (any material incorporated by reference therein being deemed conveyed for this purpose upon filing with the Commission) or an Issuer Free Writing Prospectus correcting such untrue statement or omission or alleged untrue statement or omission if the Company had furnished prior to the Applicable Time copies of such amended or supplemented Pricing Prospectus or Issuer Free Writing Prospectus to such Underwriter and had specifically identified to such Underwriter prior to the Applicable Time such untrue statement or omission, or alleged untrue statement or omission, that was so corrected.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company, each of its directors, officers, employees and agents, and each person who controls the Company within the meaning of either the Act or the Exchange Act may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, the Pricing Prospectus or any Issuer Free Writing Prospectus, in each case, relating to the Designated Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, the Pricing Prospectus or any Issuer Free Writing Prospectus, and, in each case, relating to the Designated Securities, or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company, each of its directors, officers, employees and agents, and each person who controls the Company within the meaning of either the Act or the Exchange Act in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall, so far as permitted by any insurance policy of the indemnified party and subject to the indemnifying party agreeing to indemnify the indemnified party against all judgments and other liabilities resulting from such action, be entitled to participate therein and, to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided that, if the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party shall not be liable to such indemnified party under this Section 9 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the representatives representing the indemnified parties who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). An indemnifying party will not, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations (including, without limitation, any failure by a party, promptly after its receipt of notice of the commencement of any action in respect of which contribution may be sought under this subsection (d), to notify the other party in writing of the commencement of such action). The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters, in each case as set forth on the cover page of the Prospectus, as amended or supplemented. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer, director, employee and agent of the Company and to each person, if any, who controls the Company within the meaning of the Act or the Exchange Act.
10.
(a) If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the applicable Pricing Agreement, the Representatives may in their discretion, after giving notice to and consulting with the Company, arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 10 with like effect as if such person had originally been a party to the applicable Pricing Agreement.
(b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the applicable Pricing Agreement and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities, as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the applicable Pricing Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Designated Securities covered by such Pricing Agreement except as provided in Sections 7 and 9 hereof; but, if for any other reason Designated Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all reasonable out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the applicable Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the address of the Representatives as set forth in the applicable Pricing Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement: Attention: Company Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. The Company acknowledges that in connection with the offering of the Designated Securities: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement, and (iii) the Underwriters may have interests that differ from those of the Company. The Company waives to the fullest extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Designated Securities.
16. The Company irrevocably (i) agrees that any legal suit, action or proceeding against the Company brought by any Underwriter arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any Federal or state court in the Borough of Manhattan, The City of New York, New York (each a “New York Court”), (ii) waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding and (iii) submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The Company has appointed C T Corporation System, 111 Eighth Avenue, New York, New York 10011, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Agreement or the transactions contemplated hereby which may be instituted in any New York Court by any Underwriter, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable. The Company represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company shall be deemed, in every respect, effective service of process upon the Company.
17. In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than United States dollars, the Company will indemnify each Underwriter against any loss incurred by such Underwriter as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange at which an Underwriter is able to purchase United States dollars with the amount of judgment currency actually received by such Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment
or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars.
18.
a. In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
b. In the event that any Underwriter that is a Covered Entity or a Covered Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
“Covered Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
i. a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
ii. a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
iii. a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the U.S. Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
19. Time shall be of the essence of each Pricing Agreement. As used herein, “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
20. Except as may be otherwise provided in a Pricing Agreement, this Agreement and each Pricing Agreement shall be governed by and construed in accordance with the laws of the State of New York.
ANNEX I
Form of Pricing Agreement
[Date]
[Name(s) of (Co-)Representative(s)]
As Representative(s) of the several
Underwriters named in Schedule I hereto,
[Address]
Ladies and Gentlemen:
Vodafone Group Public Limited Company, a public limited company incorporated in England and Wales (the “Company”), proposes, subject to the terms and conditions stated herein, in the indenture, dated as of 10 February 2000, between the Company and The Bank of New York Mellon (as successor trustee to Citibank, N.A. pursuant to an Agreement of Resignation, Appointment and Acceptance dated 24 July 2007 between the Company, The Bank of New York Mellon and Citibank N.A.) (the “Indenture”) and in the Underwriting Agreement, a copy of which is attached hereto as Schedule III (the “Underwriting Agreement”), to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the “Designated Securities”). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Prospectus (as defined in the Underwriting Agreement), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives or to the Underwriters in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of each of the Underwriters pursuant to Section 13 of the Underwriting Agreement and their addresses are set forth in Schedule II hereto.
A supplement to the Prospectus relating to the Designated Securities, in the form heretofore delivered to you (the “Prospectus Supplement”), is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us [•] counterparts hereof, and upon acceptance hereof by you this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in an Agreement among Underwriters, the form of which shall be submitted to the Company for examination upon request.
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Very truly yours |
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VODAFONE GROUP PUBLIC LIMITED COMPANY |
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By: |
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Name: |
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Accepted as of the date hereof: |
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[Insert name(s) of Representative(s)] |
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By: |
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Name: |
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On behalf of each of the Underwriters |
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SCHEDULE I
to the Pricing Agreement
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Underwriter |
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Principal |
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$ |
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[Insert name(s) of Representative(s)] |
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[Insert names of other Underwriters, if any] |
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Total |
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SCHEDULE II
to the Pricing Agreement
Title of Designated Securities:
[[·]%] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] [D][d]ue [·],
Specific Terms of Designated Securities:
See Appendix A for a copy of the final term sheet relating to the Designated Securities.
Price to Public:
[·]% of the principal amount of the Designated Securities, plus accrued interest [, if any,] from [·] to [·] [and accrued amortization [, if any,] from [·] to [·]]
Purchase Price by Underwriters:
[·]% of the principal amount of the Designated Securities, [plus accrued interest from [·] to [·] [and accrued amortization [, if any,] from [·] to [·]]
Specified funds for payment of purchase price:
Federal (same-day) funds
Time of Delivery:
[·]
Closing Location for Delivery of Designated Securities:
New York, New York.
[Additional Closing Conditions:
Paragraph 8(h) of the Underwriting Agreement should be modified in the event that the Securities are denominated in, indexed to, or principal or interest are paid in, a currency other than the U.S. dollar, more than one currency or in a composite currency. The country or countries issuing such currency should be added to the banking moratorium and hostilities clauses and the following additional clause should be added to the paragraph (the entire paragraph should be restated, as amended):
“; ( ) the imposition of the proposal of exchange controls by any governmental authority in [insert the country or countries issuing such currency, currencies or composite currency] “.
If the Securities are to be listed on any securities exchange, insert the following:
“( ) The Securities shall have been admitted to listing on the [name of relevant recognized stock exchange].”
Additional Opinions:
If the Securities are denominated in and pay interest in a currency other than U.S. dollars, local counsel for the Company shall give the following opinion:
“( ) All interest on the Securities may, under the current laws and regulations of [insert jurisdiction], be paid in [insert currency] that may be converted into foreign currency that may be freely transferred out of [insert jurisdiction], and all interest and other distributions on the Securities will not be subject to withholding or other taxes under the laws and regulations of [insert jurisdiction] and are otherwise free and clear of any other tax, withholding or deduction in [insert jurisdiction] and without the necessity of obtaining any Governmental Authorization in [insert jurisdiction].”]
Names and Addresses of Underwriters, including the Representatives:
[·]
[Listing:
The Company will apply to list the Designated Securities on [name of recognized stock exchange].]
Other Terms:
Applicable Time
“Applicable Time” means [·] New York City time, on the date of this Pricing Agreement.
Selling Restrictions
(1) Each Underwriter represents, warrants and agrees that, in connection with the distribution of the Designated Securities, it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Designated Securities to any retail investor in the European Economic Area or the United Kingdom. For these purposes:
(a) the expression “retail investor” means a person who is one or more of the following:
i. a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or
ii. a customer within the meaning of Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or
iii. not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended, the “Prospectus Regulation”); and
(b) the expression an “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Designated Securities to be offered so as to enable an investor to decide to purchase or subscribe the Designated Securities.
(2) Each Underwriter represents, warrants and agrees that, in connection with the distribution of the Designated Securities:
(a) in relation to any Designated Securities which have a maturity of less than one year (i) it is a person whose ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business and (ii) it has not offered or sold and will not offer or sell the Designated Securities other than to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal
or as agent) for the purposes of their businesses or who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses where the issue of the Designated Securities would otherwise constitute a contravention of Section 19 of the Financial Services and Markets Act 2000 (“FSMA”) by the Company;
(b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Designated Securities in, from or otherwise involving the United Kingdom; and
(c) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Designated Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company.
Appendix A
to Schedule II of the Pricing Agreement
Floating Rate Notes due [·] (the “[Tranche 1] Notes”)
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[Further issuance |
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The [Tranche 1] Notes are a further issuance of Floating Rate Notes due [·], of which there is currently an aggregate principal amount of $[·] outstanding.] |
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Maturity date |
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We will repay the [Tranche 1] Notes on [·] at 100% of their principal amount plus accrued and unpaid interest. |
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Issue date |
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[·]. |
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Issue price |
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[·]% of the face amount, plus accrued interest[, if any,] from [and including] [·]. |
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Interest rate |
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The interest rate for the period from [·], to but excluding the first interest reset date will be the initial base rate, as adjusted by adding the spread. Thereafter, the interest rate will be the base rate, as adjusted by adding the spread. The interest rate will be reset [·] on each interest reset date. |
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Initial base rate |
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[·], as determined on [·]. |
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Base rate |
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[·]. |
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Spread |
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[·]%. |
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Interest payment dates |
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[·] on [·] of each year, commencing [·], up to and including the maturity date for the [Tranche 1] Notes, subject to the applicable business day convention. |
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Interest reset dates |
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Starting with the interest period scheduled to commence on [·], the interest reset date for each interest period will be the first day of such interest period, subject to the applicable business day convention. |
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Interest determination date |
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The interest determination date relating to a particular interest reset date will be the second [·] business day preceding such interest reset date. |
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Business day convention |
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[Modified following]. |
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Day count fraction |
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[Actual/360]. |
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Calculation Agent |
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[The Bank of New York Mellon, acting through its London branch, or its successor appointed by us.] |
[[·]%] Notes Due [·] (the “[Tranche 2] Notes” [and, together with the Tranche 1 Notes, the “Notes”)]
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[Further issuance |
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The [Tranche 2] Notes are a further issuance of [[·]%] Notes due [·], of which there is currently an aggregate principal amount of $[·] outstanding.] |
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Maturity date |
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We will repay the [Tranche 2] Notes on [·] at 100% of their principal amount plus accrued and unpaid interest. |
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Issue date |
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[·]. |
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Issue price |
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[·]% of the face amount, plus accrued interest[, if any,] from [and including] [·] |
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Interest rate |
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[·]% per annum. |
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Interest payment dates |
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[·] on [·] of each year, commencing [·], up to and including the maturity date for the [Tranche 2] Notes, subject to the applicable business day convention. |
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Business day convention |
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[Following, Unadjusted]. |
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Day count fraction |
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[30/360]. |
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Optional make-whole redemption |
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We have the right to redeem the [Tranche 2] Notes, in whole or in part, at any time and from time to time at a redemption price equal to the greater of (1) 100% of the principal amount of such notes plus accrued interest to the date of redemption and (2) as determined by the quotation agent, the sum of the present values of the remaining scheduled payments of principal and interest on such notes (excluding any portion of such payments of interest accrued as of the date of redemption) discounted to the redemption date on a semi-annual basis [(assuming a 360-day year consisting of twelve 30-day months)] at the adjusted treasury rate, plus [·]] basis points. |
The following terms apply to[ each tranche of] the Notes:
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Business days |
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[For the [[·]] Notes, [·] and New York; for the Floating Rate Notes, [·] and New York.] |
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Ranking |
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The Notes will rank equally with all present and future unsecured and unsubordinated indebtedness. Because we are a holding company, the Notes will effectively rank junior to any indebtedness or other liabilities of our subsidiaries. |
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Regular record dates for interest |
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With respect to each interest payment date, the regular record date for interest on global securities in registered form will be the close of business on the Clearing System Business Day prior to the date for payment, where “Clearing System Business Day” means Monday to Friday inclusive except December 25 and January 1. The regular record date for interest on debt securities that are represented by physical certificates will be the date that is 15 calendar days prior to such date, whether or not such date is a business day. |
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Payment of additional amounts |
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We intend to make all payments on the Notes without deducting United Kingdom (“U.K.”) withholding taxes. If any deduction is required on payments to non-U.K. investors, we will pay additional amounts on those payments to the extent described under “Description of Debt Securities We May Offer — Payment of Additional Amounts” in the prospectus. |
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Redemption or repurchase following a change of control |
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If a Change of Control Put Event (as defined in the prospectus) occurs, then the holder of a Note will have the option, as described under ‘‘Additional Mechanics — Redemption or Repurchase Following a Change of Control” in the prospectus, to require Vodafone to redeem or, at Vodafone’s option, purchase (or procure the purchase of) such Note, according to the terms and limitations described under ‘‘Additional Mechanics — Redemption or Repurchase Following a Change of Control’’ in the prospectus. |
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Optional tax redemption |
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We may redeem the Notes before they mature if we are obligated to pay additional amounts due to changes on or after the date of this final term sheet in U.K. withholding tax requirements, a merger or consolidation with another entity or a sale or lease of substantially all our assets and other limited circumstances described under “Description of Debt Securities We May Offer—Payment of Additional Amounts” in the prospectus. In that event, we may redeem the Notes, in whole but not in part, on any interest payment date, at a price equal to 100% of their principal amount plus accrued interest to the date fixed for redemption. |
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Adjusted treasury rate |
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“Adjusted treasury rate” means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the comparable treasury issue, assuming a price for the comparable treasury issue (expressed as a percentage of its principal amount) equal to the comparable treasury price for such redemption date. |
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Comparable treasury issue |
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“Comparable treasury issue” means the U.S. Treasury security selected by the quotation agent as having a maturity comparable to the remaining term of such notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining terms of such notes. |
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Comparable treasury price |
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“Comparable treasury price” means, with respect to any redemption date, the average of the reference treasury dealer quotations for such redemption date. |
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Quotation agent |
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“Quotation agent” means the reference treasury dealer appointed by us. |
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Reference treasury dealer |
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“Reference treasury dealer” means any primary U.S. government securities dealer in New York City selected by us. |
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Reference treasury dealer quotations |
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“Reference treasury dealer quotations” means with respect to each reference treasury dealer and any redemption date, the average, as determined by the trustee, of the bid and asked prices for the comparable treasury issue (expressed as a percentage of its principal amount) quoted in writing to the trustee by such reference treasury dealer at 5:00 p.m. Eastern Standard Time on the third business day preceding such redemption date. |
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Listing |
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We will file an application to list the Notes on [name of recognized stock exchange]. We expect that the Notes will be eligible for trading on [name of recognized stock exchange] within 30 days after delivery of the Notes. |
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Use of proceeds |
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We intend to use the net proceeds from the sale of the Notes for general corporate purposes. |
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Risk factors |
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You should carefully consider all of the information in this final term sheet, the prospectus supplement and the prospectus, which includes information incorporated by reference. In particular, you should evaluate the specific factors under “Risk Factors” beginning on page [·] of the prospectus and “Principal risk factors and uncertainties” beginning on page [·] of our Annual Report on Form 20-F for the fiscal year ended March 31, 202[·] for risks involved with an investment in the Notes. |
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Trustee and principal paying agent |
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The Bank of New York Mellon |
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Timing and delivery |
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We currently expect delivery of the Notes to occur on or about [·]. |
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Underwriters |
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[·], [·] and [·]. |
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Underwriting discounts and commissions |
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[·] |
Appendix B
to Schedule II of the Pricing Agreement
Issuer Free Writing Prospectus:
Final Term Sheet dated [·]
Other Free Writing Prospectus(es):
None
SCHEDULE III
to the Pricing Agreement
Copy of Underwriting Agreement
[Attach a copy of the Underwriting Agreement behind this cover page.]
Schedule 8(c)(i)
Form of Opinion of U.S. Counsel
in connection with Section 8(c)(i) of the Underwriting Agreement
[Date]
[Underwriters]
Ladies and Gentlemen:
Vodafone Group Plc (the “Company”)
$[·] [[·]%]/[Floating Rate] Notes due [·] (the “Securities”)
We have acted as United States counsel for the Company in connection with the execution by you and the Company of the Pricing Agreement dated [·] (the “Pricing Agreement”), which incorporates by reference the provisions of the Underwriting Agreement attached thereto (the “Underwriting Agreement”), relating to the offer and sale of the Securities[, and (ii) the execution by the Company and the Bank of New York Mellon, as calculation agent (the “Calculation Agent”), of the Calculation Agency Agreement dated [·] (the “Calculation Agency Agreement”]. The Securities are being issued pursuant to the Indenture dated February 10, 2000 (the “Indenture”) between the Company and The Bank of New York Mellon, as trustee (the “Trustee”) and as successor trustee to Citibank N.A. The offering of the Securities has been made by way of a prospectus dated July 29, 2020 (the “Base Prospectus”), as supplemented by the prospectus supplement dated [·] (the “Prospectus Supplement”). The Base Prospectus, together with the final term sheet referred to in Appendix B to Schedule II of the Pricing Agreement, is referred to herein as the “Pricing Disclosure Package”. The Base Prospectus, as supplemented by the Prospectus Supplement, is referred to herein as the “Final Prospectus”.
This opinion is limited to the federal law of the United States and the laws of the State of New York, and we express no opinion as to the effect of the laws of any other state of the United States or the laws of any other jurisdiction.
For the purpose of this opinion, we have examined the Pricing Agreement, [the Calculation Agreement,] the Underwriting Agreement and the Indenture, such certificates and other documents, and such questions of law, as we have considered necessary or appropriate. Solely for the purpose of our opinions in paragraphs 5 and 6 below, we have reviewed the statements under the captions “Description of Debt Securities We May Offer”, “Plan of Distribution”, “Description of Notes”, “Underwriting” and “Taxation — U.S. Federal Income Taxation” in the Pricing Disclosure Package and the Final Prospectus used in connection with the offer and sale of the Securities. We have assumed that the Company has the power to execute and deliver the Pricing Agreement, the Underwriting Agreement, [the Calculation Agency Agreement,] the Securities and the Indenture, and perform its obligations thereunder, that the Pricing Agreement, the Underwriting Agreement, the [Calculation Agency Agreement, the] Securities and the Indenture have been duly and validly authorized, executed and delivered under the laws of England and Wales by the Company, that the Securities conform to the forms examined by us and that the signatures on all documents examined by us are genuine, assumptions that we have not independently verified.
In our opinion:
1 The Pricing Agreement and the Underwriting Agreement have been duly executed and delivered by the Company.
2 The Indenture has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; provided, however, that we express no opinion as to the provisions relating to events of default under Sections 501(5), 501(6) and 501(7), which are governed by English law; and the Indenture has been duly qualified under the Trust Indenture Act of 1939.
3 [The Calculation Agency Agreement has been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery thereof by the Calculation Agent, constitutes a valid and legally binding agreement of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.]
4 The Securities have been duly executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; provided, however, that we express no opinion as to the provisions relating to events of default under Sections 501(5), 501(6) and 501(7) of the Indenture, which are governed by English law.
5 The statements under the captions “Description of Debt Securities We May Offer”, “Plan of Distribution”, “Description of Notes” and “Underwriting” in the Pricing Disclosure Package and the Prospectus Supplement, in each case insofar as those statements summarize provisions of documents governed by New York law therein described, in the case of the Pricing Disclosure Package, at the Applicable Time (as defined in the Underwriting Agreement), and, in the case of the Final Prospectus, at its date and at the time and date of delivery of this opinion, were accurate summaries in all material respects.
6 The statements under the caption “Taxation — U.S. Federal Income Taxation” in the Pricing Disclosure Package and the Final Prospectus, insofar as those statements summarize provisions of United States federal income tax law therein described, in the case of the Pricing Disclosure Package, at the Applicable Time (as defined in the Underwriting Agreement), and, in the case of the Final Prospectus, at its date and at the time and date of delivery of this opinion, were accurate summaries in all material respects.
7 The Company is not and, immediately after, and giving effect only to the offer and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, the Company will not be, an investment company within the meaning of the United States Investment Company Act of 1940 and the rules and regulations thereunder.
8 The issuance of the Securities in accordance with the Indenture and the sale of the Securities by the Company pursuant to the Pricing Agreement do not, and the performance by the Company of its obligations under the Indenture, [the Calculation Agency Agreement,] the Pricing Agreement and the Securities will not, violate any existing federal law of the United States or laws of the State of New York applicable to the Company; provided, however, that, our opinion is limited to only such laws as are normally applicable to transactions of the type contemplated by the Pricing Agreement, the Securities and the Indenture and that for the purposes of this paragraph 8, we express no opinion with respect to United States federal or State securities laws, other anti-fraud laws, fraudulent transfer laws or the United States Employment Retirement Income Security Act of 1974 and related laws and laws that restrict transactions between United States persons and citizens or residents of certain foreign countries; and provided further that, insofar as the performance by the Company of its obligations under the Indenture, the Pricing Agreement[, the Calculation Agency Agreement,] and the Securities is concerned, we express no opinion as to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws of general applicability relating to or affecting creditors’ rights as to the effect of general equity principles.
9 All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company on or prior to the date hereof under the federal laws of the United States and the laws of the State of New York for the issuance, sale and delivery of the Securities by the Company to you have been obtained or made; provided, however, that we express no opinion as to United States federal or State securities laws.
10 Assuming the validity of such action under the laws of England and Wales, under the laws of the State of New York relating to submission to personal jurisdiction, the Company has, pursuant to Section 16 of the Underwriting Agreement [, Section 10 of the Calculation Agency Agreement] and Section 115 of the Indenture (the “Jurisdiction Provisions”), validly and irrevocably submitted to the personal jurisdiction of any federal or state court within the Borough of Manhattan, The City of New York, New York, in any suit or proceeding arising out of or relating to the Pricing Agreement or the transactions contemplated thereby, has, to the fullest extent permitted by law, validly and irrevocably waived any objection to the venue of a proceeding in any such court, has validly and irrevocably appointed C T Corporation System in New York as its authorized agent for the purposes described in the Jurisdiction Provisions, and service of process effected on such agent in the manner set forth in the Jurisdiction Provisions will be effective to confer valid personal jurisdiction over the Company in any such action, subject, in each case, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
In connection with our opinion in paragraph 10 above, we note that the designation in the Underwriting Agreement[, the Calculation Agency Agreement] and the Indenture of the United States federal courts set forth therein as venues for proceedings relating to the Underwriting Agreement [, the Calculation Agency Agreement] and the Indenture are subject to the power of United States federal courts to transfer proceedings pursuant to Section 1404(a) of Title 28 of the United States Code or to dismiss such proceedings on the grounds that such United States federal court is an inconvenient forum for such actions. We express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action where jurisdiction based on diversity of citizenship under Section 1332 of Title 28 of the United States Code does not exist.
This opinion is addressed to you solely for your benefit in your capacity as an Underwriter in connection with the offer and sale of the Securities. It is not to be transmitted to anyone else nor is it to be relied upon by anyone else or for any other purpose or quoted or referred to in any public document or filed with anyone without our express consent. This opinion may, however, be disclosed by you (i) to the extent required by law, regulation or any governmental or competent regulatory authority, (ii) in connection with legal proceedings in relation to the offer and sale of the Securities or (iii) to your affiliates in relation to the offer and sale of the Securities, provided that, without our express consent, you may not disclose this opinion to any other purchaser or prospective purchaser of the Securities and no party to whom the opinion is disclosed may rely on the opinion.
Very truly yours,
Schedule 8(c)(ii)
Form of Letter from U.S. Counsel
in connection with Section 8(c)(ii) of the Underwriting Agreement
[Date]
[Underwriters]
Ladies and Gentlemen:
Vodafone Group Plc (the “Company”)
$[·] [[·]%]/[Floating Rate] Notes due [·] (the “Securities”)
This is with reference to the registration under the United States Securities Act of 1933 (the “Securities Act”) and offering of the Securities. The registration statement (File No. 333-[·]) (the “Registration Statement”) was filed on Form F-3 in accordance with procedures of the United States Securities and Exchange Commission (the “SEC”) permitting a delayed or continuous offering of securities pursuant thereto and, if appropriate, a post-effective amendment, document incorporated by reference therein or prospectus supplement that provides information relating to the terms of the Securities or the manner of their distribution. The offering of the Securities has been made by way of a prospectus dated July 29, 2020 (the “Base Prospectus”), as supplemented by the prospectus supplement dated [·] (the “Prospectus Supplement”). The Base Prospectus, together with the final term sheet referred to in Appendix B to Schedule II of the Pricing Agreement dated [·] between you and the Company, is referred to herein as the “Pricing Disclosure Package”. The Base Prospectus, as supplemented by the Prospectus Supplement, is referred to herein as the “Final Prospectus”.
In our capacity as United States counsel for the Company, we have, along with representatives of the Company and its independent accountants and your representatives and your United States counsel, participated in discussions concerning the contents of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus and related matters, reviewed the contents of the Registration Statement, the Pricing Disclosure Package and the Final Prospectus, advised the Company as to the requirements of the Securities Act and the applicable rules and regulations thereunder and carried out such further enquiries and procedures as we have deemed necessary or appropriate in the circumstances.
On the basis of the information that we gained in the course of the performance of the work referred to above, considered in the light of our understanding of the applicable United States federal securities laws (including the requirements of Form F-3 and the character of prospectus contemplated thereby) and the experience we have gained through our practice under the Securities Act, we confirm to you that, in our opinion, each part of the Registration Statement, when such part became effective, and the Final Prospectus, at [·], appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities, to the requirements of the Securities Act, the United States Trust Indenture Act of 1939 and the applicable rules and regulations of the SEC thereunder. Further, we confirm to you that nothing that has come to our attention in the course of our acting in our capacity as such counsel has caused us to believe that, insofar as relevant to the offering of the Securities, any part of the Registration Statement, when such part became effective, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or that either the Pricing Disclosure Package, at the Applicable Time (as defined in the Underwriting Agreement), or the Final Prospectus, at its date or at the time and date of delivery of this letter, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process are such, however, that we do not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus, except as provided in paragraphs 5 and 6 of our opinion with respect to certain matters of the federal law of the United States and the laws of the State of New York and paragraphs 5.13 and 5.14 of our opinion with respect to certain matters of English law, in each case addressed to you and dated the date hereof. With your agreement, we express no opinion or belief as to the financial statements or as to any of the financial data contained in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus, as to the report of management’s assessment of the effectiveness of internal control over financial reporting or the auditors’ attestation report thereon, each as included in the Registration Statement, the Pricing Disclosure Package or the Final Prospectus, or as to the statement of the eligibility and qualification of the Trustee under the Indenture under which the Securities are being issued.
This letter is addressed to you solely for your benefit. It is not to be relied upon by anyone else for any purpose without our express consent.
Very truly yours,
Schedule 8(d)
Form of Opinion of English Counsel
in connection with Section 8(d) of the Underwriting Agreement
[Subject to review by Linklaters]
[Date]
[Underwriters]
(the “Underwriters”)
and
The Bank of New York Mellon (the “Trustee”)
Corporate Trust Office
Barclay Street
New York, NY10286
United States of America
Dear Ladies and Gentlemen
Vodafone Group Plc (the “Company”)
[U.S.$][·] [[·]%]/[Floating Rate] Notes due [·] (the “Securities”)
1 We have acted as English legal advisers to the Company in connection with the issue of the Securities and we have taken instructions solely from the Company. We have not advised the Underwriters or the Trustee on the content of, or their specific position or rights in relation to, the Pricing Agreement and the Indenture (together, the “Relevant Agreements”) or the Securities or assisted them in any way in relation to the negotiation of the Relevant Agreements or the Securities or in relation to any transaction for which the Relevant Agreements or the Securities may be relevant and in that respect we owe them no duty of care or other legal responsibility.
2 This opinion is limited to English law as applied by the English courts and on the basis of our understanding of current United Kingdom HM Revenue and Customs (“HMRC”) practice. Such laws and practice are subject to change, possibly with retrospective effect. HMRC’s practice may not be binding on HMRC and there can be no assurance that HMRC will not depart from such practice, either because of the presence of particular factual circumstances or generally.
3 This opinion is given on the basis that it, and all matters relating to it, will be governed by, and that it (including all terms used in it) will be construed in accordance with, English law. In particular, we express no opinion on matters of federal law of the United States or the laws of any State of the United States or the laws of any other jurisdiction. Save for paragraphs [6.10, 6.11 and 6.13] below, we do not express (i) any opinion as to any taxes or duties that will or may arise as a result of any other transaction effected in connection with the Securities or (ii) any opinion as to any other taxation matter which will or may arise as a result of any transaction effected in connection with the Securities.
4 For the purpose of this opinion we have examined only the documents listed and, where appropriate, defined in the Schedule to this opinion.
5 We have assumed that the Relevant Agreements are within the capacity and powers of, and have been validly authorised by and are binding upon, each of the respective parties thereto (other than the Company) and that those documents have been or will be validly executed and delivered by the relevant parties (other than the Company), that each of the Relevant Agreements and the Securities are valid and binding on each party
(including the Company) under the law to which it is expressed to be subject where that is not English law and that words and phrases used in those documents have the same meaning and effect as they would if those documents were governed by English law.
We have further assumed that:
1 all copy documents conform to the originals and all originals are genuine and complete;
2 each signature is the genuine signature of the individual concerned;
3 (except in the case of the Company) all relevant documents are within the capacity and powers of, and have been validly authorised by, each party;
4 (in the case of each party) those documents have been or (in the case of the Securities) will be validly executed and delivered by the relevant party;
5 the Minutes and other corporate documents are a true and complete record of the proceedings described therein[, the conditions to the approval of the issue of the Securities set out in the Minutes were satisfied] and the resolutions set out in the Minutes were validly passed and remain in full force and effect without modification;
6 all applicable provisions of the Financial Services and Markets Act 2000 (the “FSMA”) and any secondary legislation made under it with respect to anything done by the Underwriters in relation to the Securities in, from or otherwise involving the United Kingdom (including Sections 19 (carrying on a regulated activity) and 21 (financial promotion)) and (where applicable) the requirements of any regulatory authority in the United Kingdom to whose supervision each of them is subject will have been complied with;
7 each of the Relevant Agreements and the Securities have been executed by the person(s) duly authorised to do so in the Minutes; [and]
8 [the Securities will not carry any right of repayment to an amount which exceeds the nominal amount of the relevant capital and is not reasonably comparable with what is generally repayable (in respect of a similar nominal amount of capital) under the terms of issue of other loan capital included in the Official List of the United Kingdom Financial Conduct Authority and admitted to trading on the London Stock Exchange; and
9 the Securities will constitute loan capital falling within paragraphs (a) to (c) (inclusive) of Section 78(7) of the Finance Act 1986 and will not carry any right to interest the amount of which exceeds a reasonable commercial return on the nominal amount of the relevant capital.]
6 Based on the documents referred to, and assumptions made, in paragraphs 4 and 5 above and subject to the qualifications in paragraph 8 below and to any matter not disclosed to us, we are of the following opinion:
1 The Company has been incorporated and is existing as a company with limited liability under the laws of England.
2 The results of a search at Companies House on [·] 20[·] revealed no order or resolution for the winding-up of the Company and no appointment of a liquidator, receiver, administrative receiver or administrator. It should be noted that such searches are not capable of revealing definitively whether or not a petition for winding-up or administration has been presented in a County Court or District Registry or in the High Court of Justice, and that notice of a winding-up or administration order made, or winding-up resolution passed, or the appointment of a liquidator, administrative receiver or administrator, may not be filed at Companies House immediately.
3 The Company has the corporate power to enter into and to perform its obligations under the Relevant Agreements and to issue and perform its obligations under the Securities.
4 The Company has taken all necessary corporate action to authorise the execution, delivery and performance of the Securities and the Company has validly executed and delivered the Securities. There is no reason insofar as English law is concerned why the obligations assumed by the Company under the Securities are not valid and binding obligations of the Company.
5 The Company has taken all necessary corporate action to authorise the execution and delivery of the Relevant Agreements and the Company has validly executed and delivered each such agreement. There is no reason insofar as English law is concerned why the obligations assumed by the Company under each such agreement are not valid and binding upon the Company.
6 Sections 501(5), 501(6) and 501(7) of the Indenture, which are expressed to be governed by English law, constitute valid, binding and enforceable terms.
7 The issue by the Company of the Securities and compliance by the Company with the Relevant Agreements and the consummation of the transactions therein contemplated will not conflict with or result in any violation or breach by the Company of any provision of English law or of the Articles of Association of the Company.
8 Any final and conclusive judgment of any state or federal court in the City and State of New York (a “New York Court”) in respect of any legal suit, action or proceeding brought to enforce any liability of the Company under any Relevant Agreement in any such action or proceeding against the Company (a “United States Judgment”) would be capable of being enforced by fresh proceedings in an English court against the Company without the necessity for a re-trial or re-examination of the matters thereby adjudicated
6.8.1 unless:
(i) the English court is not satisfied, in accordance with its own conflict of law principles, that the New York Court had jurisdiction over the Company (the English court will normally be so satisfied if the Company has freely submitted to the jurisdiction of the New York Court);
(ii) the English court is not satisfied that there was due service of process;
(iii) the judgment is not for a specific sum of money;
(iv) the judgment was not final and conclusive;
(v) the judgment was obtained by fraud or misrepresentation;
(vi) enforcement of the judgment would be contrary to English public policy or if the proceedings in which the judgment was obtained were contrary to natural justice;
(vii) the proceedings were of a revenue or penal nature; or
(viii) the judgement is inconsistent with a prior judgment on the same matter and between the same parties, and
6.8.2 provided that:
(i) execution of an English judgment based on a judgment of a New York Court may be stayed if the New York Court’s judgment is the subject of a pending appeal or the judgment debtor is entitled to and intends to appeal against the judgment;
(ii) in any proceedings to enforce in an English court a foreign judgment (including a United States Judgment) it is open to the defendant to raise any counterclaim that he could have brought if the action had originally been brought in England unless the subject of the counterclaim was in issue and decided in the proceedings before the New York Court; and
(iii) (a) by virtue of the Protection of Trading Interests Act 1980, a judgment for multiple damages will not be enforceable and (b) under that Act, United Kingdom citizens and corporations and other persons carrying on business in the United Kingdom may recover sums paid under foreign judgments for multiple damages in excess of the compensation for the loss of the person in whose favour the foreign judgment was given.
9 There are no consents, approvals, authorisations or orders required by the Company from any governmental or other regulatory agencies in the United Kingdom in connection with the issue and offering of the Securities and the performance by the Company of its obligations under the Relevant Agreements and under the terms of the Securities (including effecting payments of principal and interest on the Securities) provided that no public offer by the Company or the Underwriters (or any person acting on their behalf) is made in the United Kingdom, other than in the circumstances set out in Section 86 of the FSMA.
10 [Except as disclosed in the Prospectus and subject to the qualifications and limitations set out therein, no United Kingdom taxes, levies or imposts are, as a matter of United Kingdom tax law, required to be deducted or withheld from any payment of principal or interest by the Company in respect of the Securities.]
11 [Except as disclosed in the Prospectus and subject to the qualifications and limitations set out therein, no United Kingdom stamp duty or stamp duty reserve tax is payable on the issue, offering, sale and delivery of the Securities. No United Kingdom stamp duty or stamp duty reserve tax is payable on the execution and, where appropriate, delivery of the Pricing Agreement.]
12 A holder in respect of Securities, if and when so entitled, is entitled to sue as claimant in the English courts for the enforcement of its respective rights against the Company. The Company is not entitled to any special immunity from proceedings in England with respect to the Indenture or the Securities. The Trustee could commence proceedings in an English court of competent jurisdiction against the Company in connection with the Indenture and such court would accept jurisdiction in respect of any such proceedings. The English courts will recognise and give effect to the choice of the laws of the State of New York as the governing law of the Securities and the Indenture (except for Sections 501(5)-(7) which are expressed to be governed by English law). Accordingly, under the principles of English conflicts of laws the existence and validity of the contract, and any term thereof (except as provided in the preceding sentence), between the parties is a matter of New York law.
13 [The statements of United Kingdom taxation law and HMRC practice contained under the heading “Taxation — United Kingdom Taxation — Debt Securities” in the Original Prospectus as amended, superseded or supplemented by the statements under the heading [“Taxation — United Kingdom Taxation”] in the Prospectus Supplement, insofar as such statements purport to summarise certain tax laws of the United Kingdom or HMRC practice, are, as at the date of this opinion and subject to the assumptions and qualifications in that section of the Prospectus Supplement, a correct summary in all material respects of the matters set out therein.](1)
(1) Subject to Tax’s review of disclosure.
7 The term “enforceable” as used in paragraph 6.6 means that the obligations assumed by the relevant party under the relevant document are of a type which the English courts enforce. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular:
1 Enforcement may be limited by (a) bankruptcy, insolvency, liquidation and moratorium laws, (b) laws relating to reorganisation and (c) laws of general application relating to or affecting the rights of creditors.
2 Enforcement may be limited by general principles of equity - for example, equitable remedies may not be available where damages are considered to be an adequate remedy.
3 Claims may become barred under the Limitation Act 1980 or may be or become subject to set-off or counterclaim.
8 This opinion is subject to the following:
1 Any certificate, determination, notification, opinion, minute or the like might be held by an English court not to be conclusive if it could be shown to have an unreasonable or arbitrary basis or in the event of manifest error despite any provision in the relevant agreement to the contrary.
2 Save to the limited extent specified in paragraph [6.13], we have not been responsible for investigating or verifying the accuracy of the facts, including statements of foreign law, or the reasonableness of any statements of opinion contained in the Prospectus or that no material facts have been omitted from it.
3 To the extent it relates to United Kingdom stamp duties, any undertaking or indemnity may be void under Section 117 of the Stamp Act 1891.
4 We express no opinion as to the compliance or otherwise with the financial limitations on borrowings or covenants by the Company contained in the Articles of Association of the Company.
5 An English court may, or may be required to, stay proceedings or decline jurisdiction in certain circumstances - for example, if proceedings are brought elsewhere.
9 This opinion is given on the basis of English law (or, insofar as this opinion relates to tax, to United Kingdom taxation law or our understanding of HMRC practice) in force as at the date of this opinion and on the basis that, since the date of, or as the case may be, date of certification of, the documents referred to in the Schedule to this opinion, there has been no amendment to, or termination or replacement of, such documents. This opinion is also given on the basis that we undertake no responsibility to notify you of any change in English law or United Kingdom taxation law or HMRC practice or otherwise to update this opinion in any respect after the date of this opinion.
10 This opinion is addressed to you solely for your benefit in connection with the issue of the Securities. It is not to be transmitted to anyone else nor is it to be relied upon by anyone else or for any other purpose or quoted or referred to in any public document or filed with anyone without our express consent. This opinion may, however, be disclosed by the addressees hereof to the extent required by law, regulation or any governmental or competent regulatory authority or in connection with legal proceedings relating to the issue of the Securities, provided that no such party to whom this opinion is disclosed may rely on this opinion without our express consent.
In addition, a copy of this opinion may be provided, for the purposes of information only, to:
1 your professional advisers, auditors and regulators; and
2 your affiliates involved in the offering, sale, distribution and/or issue of the Securities and their professional advisers, auditors and regulators,
since we understand that they may wish to know that an opinion has been given and to be made aware of its terms, but only on the basis that it will not be relied upon by any such person, that no such person may provide a copy of this opinion to any other person and that it will not be quoted or referred to in any public document or filed with anyone without our written consent.
We accept no responsibility or legal liability to any person other than the addressees in relation to the contents of this opinion.
Yours faithfully
SCHEDULE
to the Form of Opinion of English Counsel
1 Pricing Agreement dated [·] between the Company and the Underwriters (the “Pricing Agreement”), incorporating the terms of the Underwriting Agreement set out in Schedule III to the Pricing Agreement.
2 Indenture (the “Indenture”) dated 10 February 2000, between the Company and the Trustee (as successor trustee to Citibank, N.A. pursuant to an Agreement of Resignation, Appointment and Acceptance dated 24 July 2007 between the Company, The Bank of New York Mellon and Citibank N.A.), including forms of debt securities (incorporated by reference to Exhibit 4(a) of Post-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form F-3 (File No. 333-10762), filed with the Securities and Exchange Commission on 24 November 2000).
3 A certified copy of the Articles of Association of the Company.
4 A certified extract from the minutes of a meeting of the Board of Directors of the Company held on [·] [(the “Minutes”)] [and the indications of agreement in electronic form in respect thereof / and an e-mail from the [Chief Financial Officer] dated [·] approving the transaction] [and a copy of the minutes of a meeting of a committee duly authorised by the Board of Directors of the Company held on [·]] ([together,] the “Minutes”)].
5 Prospectus dated July 29, 2020 [(the “Original Prospectus”)] and Prospectus Supplement dated [·] ([the “Prospectus Supplement” and, together with the Original Prospectus], the “Prospectus”).
Schedule 8(e)
Form of Opinion of Vodafone General Counsel and Secretary
in connection with Section 8(e) of the Underwriting Agreement
[Date]
[Underwriters]
Dear Ladies and Gentlemen:
I am the Group General Counsel and Company Secretary of Vodafone Group Plc, a company organised under the laws of England and Wales (the “Issuer”), and have provided legal advice and assistance to the Issuer in connection with the issue and sale today by the Issuer through you as Underwriters (the “Underwriters”), pursuant to the Pricing Agreement, dated [·] (the “Pricing Agreement”), which incorporates by reference the provisions of the Underwriting Agreement attached thereto, by and between the Issuer and you, of the debt securities listed in Appendix A to Schedule II thereto (the “Securities”) issued pursuant to the Indenture, dated as of 10 February 2000 (the “Indenture”), between the Issuer and The Bank of New York Mellon (as successor trustee to Citibank, N.A. pursuant to an Agreement of Resignation, Appointment and Acceptance dated 24 July 2007 between the Company, The Bank of New York Mellon and Citibank N.A.), and offered pursuant to the Prospectus, dated 29 July 2020, as amended and supplemented by the Prospectus Supplement, dated [·] (including the documents incorporated by reference therein, the “Prospectus”).
I have examined such corporate records, certificates and other documents as I have considered necessary or appropriate for the purposes of this opinion. In such examination, the genuineness of all signatures of all parties (other than the Issuer) on all documents and the conformity with original documents of all copies submitted to me has been assumed. I have further assumed that such documents are within the capacity and powers of, and have been duly authorised, executed and delivered by, and are valid and binding upon, each party other than the Issuer under New York law.
In giving this opinion, I have made no investigation of the laws of any country other than the laws of England and Wales, and my opinion is confined to matters of English law as applied by the English courts. My opinion is given on the understanding that it will be governed by and construed in accordance with English law.
On the basis of the foregoing, having regard to such legal considerations as I deem relevant, I am of the opinion that, insofar as the present laws of England and Wales are concerned:
(1) The Issuer is duly incorporated as a public limited company under the laws of England and Wales and has the power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(2) All of the issued shares of capital stock of the Issuer have been duly and validly authorised and issued and are fully paid and non-assessable;
(3) To the best of my knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Issuer or any of its subsidiaries is a party or of which any property of the Issuer or any of its subsidiaries is the subject which, if determined adversely to the Issuer or any of its subsidiaries, would individually or, in the aggregate, have a material adverse effect on the current consolidated financial position or results of operations of the Issuer and its subsidiaries, taken as a whole; and, to the best of my knowledge, no such proceedings are threatened or contemplated;
(4) The Issuer is not in violation of its Articles of Association or other constituent documents, and, to the best of my knowledge, neither the Issuer nor any of its subsidiaries is in material default in the
performance or observance of any material obligation, agreement, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it is bound or to which any of its material properties or assets is subject, in each case except for conflicts, breaches, defaults or violations which would not affect the validity or enforceability of the Securities or have a material effect on the consolidated financial condition or results of operations of the Issuer and its subsidiaries, taken as a whole;
(5) The issue and sale of the Securities and the compliance by the Issuer with all of the provisions of the Securities, the Indenture and the Pricing Agreement, and the consummation of the transactions therein contemplated will not, to the best of my knowledge, conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the material property or assets of the Issuer is subject; and
(6) The Issuer and each of its material subsidiaries have all material telecommunications licences necessary to conduct their businesses as described in the Prospectus.
Yours faithfully
Schedule 8(f)
Form of Independent Accountants’ Letter
in connection with Section 8(f) of the Underwriting Agreement
Pursuant to Section 8(f) of the Underwriting Agreement, each firm of independent accountants that has certified financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Underwriters and the directors of the Company a letter to the effect that:
(i) They are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary financial information and schedules (and, if applicable, financial forecasts and/or pro forma financial information) audited by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act or the Exchange Act, as applicable, and the related published rules and regulations thereunder; and, if applicable, they have made a review in accordance with standards established by the Public Company Accounting Oversight Board (United States) of the consolidated interim financial statements, selected financial data, pro forma financial information, financial forecasts and/or condensed financial statements derived from audited financial statements of the Company for the periods specified in such letter, as indicated in their reports thereon, copies of which have been [separately] furnished to the representative or representatives of the Underwriters (the “Representatives”) such term to include an Underwriter or Underwriters who act without any firm being designated as its or their representatives [and are attached hereto];
(iii) [They have made a review in accordance with standards established by the Public Company Accounting Oversight Board (United States) of the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus and/or included in the Company’s interim report on Form 6-K incorporated by reference into the Prospectus as indicated in their reports thereon copies of which [have been separately furnished to the Representatives][are attached hereto]; and on the basis of specified procedures including inquiries of officials of the Company who have responsibility for financial and accounting matters regarding whether the unaudited condensed consolidated financial statements referred to in paragraph (vi)(A)(i) below comply as to form in all material respects with the applicable accounting requirements of the [Act and the Exchange] Act and the related published rules and regulations, nothing came to their attention that caused them to believe that the unaudited condensed consolidated financial statements do not comply as to form in all material respects with the applicable accounting requirements of the [Act and the Exchange] Act and the related published rules and regulations;]
(iv) [The unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included in the Prospectus and included or incorporated by reference in Item 3 of the Company’s Annual Report on Form 20-F for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for five such fiscal years which were included or incorporated by reference in the Company’s Annual Reports on Form 20-F for such fiscal years];
(v) They have compared the information in the Prospectus under selected captions (if any) with the disclosure requirements of Regulation S-K and on the basis of limited procedures specified in such letter nothing came to their attention as a result of the foregoing procedures that caused them to believe that this information does not conform in all material respects with the disclosure requirements of Items 3 and 6 of Form 20-F and of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in accordance with generally accepted auditing standards, consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus and/or included or incorporated by reference in an interim report on Form 6-K incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations, or (ii) any material modifications should be made to the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus or included in an interim report on Form 6-K incorporated by reference in the Prospectus for them to be in conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company’s Annual Report on Form 20-F for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the Prospectus but from which were derived the unaudited condensed financial statements referred to in clause (A) and any unaudited income statement data and balance sheet items included in the Prospectus and referred to in clause (B) were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company’s Annual Report on Form 20-F for the most recent fiscal year;
(D) [any unaudited pro forma consolidated condensed financial statements included or incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the published rules and regulations thereunder or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements;]
(E) [for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus, to the most recently completed month end for which consolidated financial statements of the Company are available, there were any decreases in [consolidated net revenues or consolidated operating profit or the total or per share amounts of consolidated net income], in each case as compared with the comparable period of the preceding year, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur;]
(F) [as of the most recently completed month end for which consolidated financial statements of the Company are available, there were any [changes in the share capital or increase in long-term debt or decrease in consolidated net current assets or decrease in consolidated stockholders’ equity], in each case as compared with amounts shown in the latest balance sheet included or incorporated
by reference in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter;]
(G) [for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to a specified date not more than five days prior to the date of such letter, there were any decreases in [consolidated net revenues or consolidated operating profit or the total or per share amounts of consolidated net income], in each case as compared with the comparable period of the preceding year, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur;] and
(H) [as of a specified date not more than five days prior to the date of such letter, there have been any [changes in the share capital or increase in long-term debt or decrease in consolidated net current assets or decrease in consolidated stockholders’ equity], in each case as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter.]
(vii) In addition to the audit referred to in their report(s) included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they have carried out certain specified procedures, not constituting an audit in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Representatives which are derived from the general accounting records of the Company and its subsidiaries, which appear in the Prospectus (excluding documents incorporated by reference), or in Part II of, or in exhibits and schedules to, the Registration Statement specified by the Representatives or in documents incorporated by reference in the Prospectus specified by the Representatives, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement.
All references in this letter to the Prospectus shall be deemed to refer to the Prospectus (including the documents incorporated by reference therein) as defined in the Underwriting Agreement as of the date of the letter delivered on the date of the Pricing Agreement for purposes of such letter and to the Prospectus as amended or supplemented (including the documents incorporated by reference therein) in relation to the applicable Designated Securities for purposes of the letter delivered at the Time of Delivery for such Designated Securities.
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
CITIBANK, N.A.
As Book-Entry Depositary
and
THE OWNERS OF BOOK-ENTRY SECURITIES
in
Debt Securities
SECURITIES DEPOSITARY AGREEMENT
Dated as of February 10, 2000
DEPOSITARY AGREEMENT
THIS AGREEMENT is made as of this 10th day of February 2000, by and among Vodafone AirTouch Public Limited Company, a public limited company organized and existing under the laws of England and Wales (the “Company”), which is a party for the limited purposes referred to herein, Citibank, N.A., a national banking association duly organized and validly existing under the laws of the United States of America, as Book-Entry Depositary (the “Book-Entry Depositary”) and owners from time-to-time of Book-Entry Securities.
ARTICLE ONE
DEFINITIONS AND OTHER GENERAL PROVISIONS
SECTION 1.01 Definitions.
The following terms, as used herein, have the following meanings:
“Additional Amounts” shall have the meaning ascribed to it in Section 2.13 hereof.
“Affiliate” of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, “control”, when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Board Resolution” shall have the meaning ascribed to it in the Indenture.
“Book-Entry Depositary” means the party named as such in this Agreement or its nominee or the custodian of either until a successor shall have become such pursuant to Section 3.05 hereof, and thereafter “Book-Entry Depositary” shall mean such successor or its nominee or the custodian of either.
“Book-Entry Securities” means beneficial interests in any Certificateless Depositary Interest issued pursuant to this Agreement, which are eligible for trading through DTC’s book-entry system.
“Business Day” shall have the meaning ascribed to it in the Indenture.
“Certificateless Depositary Interest” means an interest in a Global Security held by the Book-Entry Depositary that (i) shall, at all times, represent the right to receive 100% of the principal and premium (if any) of and interest on such Global Security and the right to require the Book-Entry Depositary to procure the issue of one or more Registered Securities representing up to 100% of the principal amount at maturity represented by the Global Security and (ii) is issued by the Book-Entry Depositary to the Depositary or its nominee.
“Company” means the party named as such in this Agreement until a successor replaces it pursuant to the applicable provisions of the Securities and, thereafter, means the successor.
“Corporate Trust Office” means the principal office of the Book-Entry Depositary at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 111 Wall Street, 5th Floor, New York, New York 10005, Attention: Global Agency & Trust Services, or such other address as the Book-Entry Depositary may designate from time to time by written notice to the Holders and the Company or the principal corporate trust office of any successor Book-Entry Depositary (or such other address as a successor Book-Entry Depositary may designate from time to time by notice to the Holders and the Company).
“Depositary” means DTC, or any successor, as the owner of the Certificateless Depositary Interest and indicated as such in the records of the Book-Entry Depositary.
“DTC” means The Depository Trust Company or its nominee.
“DTC Participant” shall have the meaning ascribed to it in Section 2.02 hereof.
“Event of Default” shall have the meaning ascribed to it in the Indenture.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Exchange Offer” shall have the meaning ascribed to it in the Indenture.
“Global Security” shall have the meaning ascribed to it in the Indenture.
“Holder” has the meaning ascribed to it in the Indenture.
“Indenture” means the Indenture, dated as of February 10, 2000, between the Company and Citibank, N.A., as Trustee relating to the debt securities (the “Securities”) of the Company as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental thereto entered into pursuant to the applicable provisions thereof, including for all purposes the provisions of the TIA that are deemed to be a part of and govern such instrument.
“Letter of Representations” means a Letter of Representations to DTC from the Book-Entry Depositary pertaining to Certificateless Depositary Interests.
“Officer’s Certificate” shall have the meaning ascribed to it in the Indenture.
“Opinion of Counsel” means a written opinion from legal counsel, who may be counsel to the Company.
“Order” shall have the meaning ascribed to it in the Indenture.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Registered Securities” means the Securities issued in definitive form pursuant to the Indenture in substantially the form set forth in Article Two thereto.
“Regulation S Certificate” means the certificate, the form of which is set forth in Annex A hereto.
“Regulation S Global Security” shall have the meaning ascribed to it in the Indenture.
“Responsible Officer” shall mean, when used with respect to the Book-Entry Depositary, any officer within the corporate trust department of the Book-Entry Depositary, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Book-Entry Depositary who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Agreement.
“Restricted Global Security” shall have the meaning ascribed to it in the Indenture.
“Restricted Period” shall have the meaning ascribed to in the Indenture.
“Restricted Security” shall have the meaning ascribed to it in the Indenture.
“Restricted Securities Certificate” means the certificate, the form of which is set forth in Annex B hereto.
“Security” means any Debt Security of the Company in the form of a Global Security issued under the Indenture.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Taxes” shall have the meaning ascribed to it in Section 2.13 hereof.
“TIA” means the United States Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.
“Trustee” means the Person acting as Trustee under the Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“Unrestricted Global Security” means a Global Security other than a Restricted Global Security (but which may be a Regulation S Global Security), with respect to which Book-Entry Interests therein may be transferable without material restriction under the Securities Act.
SECTION 1.02 Rules of Construction.
Unless the context otherwise requires: (1) a term has the meaning assigned to it; (2) any capitalized term not otherwise defined herein shall have the meaning ascribed to it in the Indenture; (3) “or” is not exclusive; (4) “including” means including without limitation; (5) words in the singular include the plural and words in the plural include the singular; and (6) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision.
ARTICLE TWO
BOOK-ENTRY SECURITIES
SECTION 2.01 Deposit of the Global Securities.
The Book-Entry Depositary hereby agrees to accept custody of the Global Securities and shall act as Book-Entry Depositary in accordance with the terms of this Agreement. The Book-Entry Depositary shall hold such Global Securities at its Corporate Trust Office in the Borough of Manhattan, The City of New York or at such place or places as it shall determine from time to time with the prior written consent of the Company for the purposes of Section 2.04 below and shall issue a Certificateless Depositary Interest with respect to each such Global Security in accordance with the Letter of Representations.
SECTION 2.02 Book-Entry System.
(a) Upon acceptance by DTC of a Certificateless Depositary Interest for entry into its book-entry settlement system in accordance with the terms of the Letter of Representations, the Book-Entry Securities will be traded through DTC’s book-entry system, and ownership of such Book-Entry Securities shall be shown in, and the transfer of such ownership shall be effected only through, records maintained by (i) DTC or its successors or (ii) institutions that are members of or have accounts with DTC or its successors (“DTC Participants”). Book-Entry Securities shall be transferable only as units in the same authorized denominations as the Securities.
(b) The Certificateless Depositary Interests shall be issuable only to DTC, or successors of DTC or their respective nominees. Except as provided in Section 2.05 or Section 2.09 hereof, no owner of Book-Entry Securities shall be entitled to receive a Registered Security on account of such ownership, and such owner’s interest therein shall be shown only in accordance with the procedures of DTC as set forth in the Letter of Representations.
SECTION 2.03 Procedures in the Event of an Exchange Offer.
Upon receipt by the Book-Entry Depositary as Holder of a Global Security of notice of either the commencement of an Exchange Offer or the implementation of arrangements permitting the resale by holders of Securities of any series pursuant to the registration provisions of the Securities Act, the Book-Entry Depositary will forward to each Depositary materials relating to such Exchange Offer or other arrangements with any additional instructions applicable to owners of Book-Entry Securities. In the case of an Exchange Offer, upon notice by each Depositary of the principal amount of Book-Entry Securities in the Regulation S Global Security or the Restricted Global Security of any series (as applicable) tendered in response to the Exchange Offer, the Global Depositary shall (i) in accordance with Section 305 of the Indenture, deliver to the Trustee that portion of the Global Security of such series (as applicable) with respect to which Book-Entry Securities have been tendered and receive in exchange therefor (to the extent such portions of the Global Security are accepted pursuant to the Exchange Offer) a new Unrestricted Global Security (or an increase in an existing Unrestricted Global Security) of the applicable series and in like principal amount as the Book-Entry Securities tendered, (ii) to the extent the Unrestricted Global Security is new, issue to the applicable Depositary or its nominee a new Certificateless Depositary Interest in the new Unrestricted Global Security, (iii) record any changes in the principal amount of the Depositary Interests in each of the Regulation S Global Security, the Restricted Global Security and the Unrestricted Global Security of such series, and (iv) notify the applicable Depositary of any such changes. Book-Entry Securities in each Unrestricted Global Security shall be assigned a CUSIP, ISIN and common code number different from those assigned to Book-Entry Securities in the Restricted Global Securities or the Regulation S Global Securities (if such Unrestricted Global Security is not a Regulation S Global Security).
SECTION 2.04 Records of Transfers of the Certificateless Depositary Interests.
The Company appoints the Book-Entry Depositary as its agent for the sole purpose of maintaining at the Corporate Trust Office records in which the Book-Entry Depositary shall (i) record DTC as the initial owner of each Certificateless Depositary Interest and (ii) record the increases and decreases in the principal amount represented by each Certificateless Depositary Interest. Transfer of the Certificateless Depositary Interests must be noted in the records of the Book-Entry Depositary to be effective. The Book-Entry Depositary shall treat the Person in whose name the Certificateless Depositary Interests are recorded in the records of the Book-Entry Depositary as the owner thereof for all purposes whatsoever and shall not be bound or affected by any notice to the contrary, other than an order of a court having jurisdiction over the Book-Entry Depositary.
The foregoing paragraph shall not (i) impose an obligation on the Book-Entry Depositary to record the interests in or transfers of Book-Entry Securities held by DTC Participants or Persons that may hold Book-Entry Securities through DTC Participants or (ii) restrict transfers of such Book-Entry Securities held by DTC Participants or such Persons.
In connection with the Book-Entry Depositary’s appointment as the Company’s agent under this Section 2.04, the Company shall have such rights and obligations as regards removal of the Book-Entry Depositary and appointment of a successor as are specified in Section 3.05 hereof.
SECTION 2.05 Transfer of the Global Securities.
The Book-Entry Depositary shall hold each Global Security in custody for the benefit of the Depositary. The Book-Entry Depositary shall not transfer or lend any Global Security or any interest
therein except that the Book-Entry Depositary may transfer the Global Securities to a successor Book-Entry Depositary in accordance with Section 3.05 or deliver any Global Securities to any Trustee pursuant to the Exchange Offer in accordance with Section 2.03. Notwithstanding the foregoing, the Book-Entry Depositary shall not under any circumstances surrender or deliver any Global Securities to the Depositary. If (i) the Book-Entry Depositary notifies the Company and the Trustee under Section 3.05 hereof that it is unwilling or unable to continue as Book-Entry Depositary and no successor Book-Entry Depositary has been appointed by the Company within 120 days after such notification, (ii) DTC notifies the Book-Entry Depositary that it is unwilling or unable to continue as Depositary with respect to the Certificateless Depositary Interests or if at any time it is unable to or ceases to be a clearing agency registered under the Exchange Act and a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Book-Entry Depositary at the written request of the Company within 120 days, or (iii) the Company determines pursuant to Section 305(a) of the Indenture that the Global Securities should be exchanged (in whole but not in part) for Registered Securities, then the Book-Entry Depositary shall promptly notify the Depositary that the Global Securities will be exchanged in whole for Registered Securities pursuant to Section 305(a) of the Indenture, and at the option of the Depositary, either (1) one or more Registered Securities shall be issued pursuant to the Indenture and deposited with the Depositary in exchange for the corresponding Certificateless Depositary Interest held by the Depositary, whereupon all outstanding Book-Entry Securities with respect thereto will represent interests in such Registered Securities, or (2) Registered Securities shall be issued in such names and denominations as the Depositary shall specify upon cancellation of the corresponding Certificateless Depositary Interests and all Book-Entry Securities with respect thereto. The Book-Entry Depositary agrees that in either such event it will promptly surrender the corresponding Global Securities held by it to the Trustee in connection with such exchange for cancellation pursuant to the Indenture.
SECTION 2.06 Cancellation.
If a Global Security is surrendered for payment or for redemption or purchase in full of all the Securities evidenced thereby or for exchange for Registered Securities to any Person other than the Trustee, then such Global Security shall, subject to Sections 2.08 and 2.09 hereof, become void and be delivered to the Trustee for cancellation.
SECTION 2.07 Payments in Respect of the Certificateless Depositary Interests and Global Securities.
(a) Whenever the Book-Entry Depositary shall receive from any Paying Agent appointed under the Indenture any payment on any Global Security, the amount so received shall be made promptly to the Depositary entitled thereto, on the corresponding payment date for such Global Security. So long as DTC is the Depositary, such payments shall be made in accordance with the Letter of Representations.
(b) The Book-Entry Depositary shall forward to the Company, or its agents, such information from its records as the Company may reasonably request to enable the Company or its agents to file necessary reports with governmental agencies, and the Book-Entry Depositary, the Company or their agents may (but shall not be required to) file any such reports necessary to obtain benefits under any applicable tax treaties for the Depositary or beneficial owners of Book-Entry Securities.
(c) None of the Company, the Trustee, the Book-Entry Depositary or any agent of the Company or the Trustee or the Book-Entry Depositary shall have any responsibility or liability for any aspect of the records relating to payments made by the Depositary (or its direct or indirect participants) on account of Book-Entry Securities or for maintaining, supervising or reviewing any records relating to such Book-Entry Securities.
(d) Notwithstanding any other provision of this Agreement, the Book-Entry Depositary shall be required to pay to the Depositary only amounts (including Additional Amounts) received by the Book-Entry Depositary under a Global Security.
SECTION 2.08 Redemption of Securities and Book-Entry Securities.
In the event that the Company exercises any right of redemption under the Indenture and the Securities in respect of all or any part of a Global Security, the Book-Entry Depositary shall promptly deliver such Global Security to the Trustee and request the Trustee to endorse Schedule A to such Global Security to reflect the reduction in the principal amount at maturity of such Global Security as a result of such redemption. In addition, the Book-Entry Depositary shall notify the Depositary of the principal amount at maturity redeemed and of a corresponding reduction of the principal amount at maturity of the corresponding Certificateless Depositary Interest. The Book-Entry Depositary shall pay all such amounts received by it in connection with such redemption to the Depositary.
SECTION 2.09 Exchange for Registered Securities; Transfers and Transfer Restrictions.
If, upon an Event of Default, the owner of a Book-Entry Security shall request of the Depositary and the Book-Entry Depositary that all or a part of its Book-Entry Security be exchanged for Registered Securities (such request of the owner to be given in writing only through the Depositary), upon transferor surrender of such owner’s Book-Entry Security to the account of the Book-Entry Depositary maintained with the Depositary, the Book-Entry Depositary shall (a) promptly deliver the applicable Global Security to the Trustee and request that the Trustee exchange the part of such Global Security to be so exchanged for one or more Registered Securities of the same type registered in the names specified by the Depositary and endorse Schedule A to such Global Security to reflect the reduction in principal amount of such Global Security resulting from such exchange, provided that the principal amount at maturity of such Registered Securities and of such Global Security after such exchange shall be in authorized denominations and (b) notify the Depositary of a reduction in the principal amount at maturity of the applicable Certificateless Depositary Interest, and instruct the Depositary to cancel the Book-Entry Security transferred or surrendered to the account of the Book-Entry Depositary maintained with the Depositary.
Thereafter, if any Global Security is still outstanding, then at the request of any holder of Registered Securities of the same type and upon surrender by such holder of such Registered Securities to the Registrar for registration of transfer of such Registered Securities to the Book-Entry Depositary, the Book-Entry Depositary shall promptly (a) surrender such Registered Securities to the Registrar for cancellation, deliver the applicable Global Security held by the Book-Entry Depositary to the Trustee and request that the Trustee endorse Schedule A thereof to increase the principal amount at maturity of such Global Security by an amount equal to the principal amount at maturity of the Registered Securities delivered to the Registrar for cancellation and (b) notify the Depositary of an increase in the applicable
Certificateless Depositary Interest for the account of such holder equal in principal amount at maturity to the principal amount at maturity of such Registered Securities.
If the owner of a Book-Entry Security in relation to a Global Security of the series wishes at any time to transfer such interest to a Person who wishes to take delivery thereof in the form of a Book-Entry Security in relation to a second Global Security of such series, then upon receipt by the Book-Entry Depositary of (A) an order given by the Depositary or its authorized representative directing that a Book-Entry Security in relation to the second Global Security of such series in a specified principal amount at maturity be credited to a specified DTC Participant’s account and that a Book-Entry Security in relation to the first Global Security in an equal principal amount be debited from another specified DTC Participant’s account, and (B) if applicable (see below), a Restricted Securities Certificate or a Regulation S Certificate satisfactory to the Book-Entry Depositary and duly executed by the owner of such Book-Entry Security or his attorney in fact duly authorized in writing then the Book-Entry Depositary shall (i) promptly deliver the applicable Global Securities to the Trustee and request that the Trustee endorse Schedule A to such Global Securities to reflect the reduction in principal amount at maturity of the first Global Security and the corresponding increase in the second Global Security resulting from such transfer and (ii) notify the Depositary of the corresponding adjustments in the principal amount at maturity of the Certificateless Depositary Interests.
Reference is made to Section 305(c) of the Indenture which sets forth certain transfer restrictions and certification requirements relating to exchanges or transfers between Holders of the Global Securities and/or Registered Securities. Owners of Book-Entry Securities acknowledge that analogous transfer restrictions and certification shall apply to transfers and exchanges described in this Section 2.09. Accordingly, in the circumstances where a Restricted Securities Certificate or a Regulation S Certificate is required under Section 305(c) of the Indenture to be delivered to the Trustee in connection with any transfer or exchange involving a Global Security, a Restricted Securities Certificate (as defined herein) or a Regulation S Certificate (as defined herein) as applicable shall be delivered to the Book-Entry Depositary in connection with any analogous transfer or exchange involving a Book-Entry Security in such Global Security.
The parties hereto acknowledge that pursuant to arrangements with the Depositary, during the Restricted Period, any trades in Book-Entry Securities in a Regulation S Global Security will only occur in or through accounts maintained at DTC by Euroclear and Clearstream, Luxembourg.
Each owner of Book-Entry Interests in the Restricted Global Security understands that the Securities have not been and will not be registered under the Securities Act and the Book-Entry Securities may not be reoffered, resold, pledged or otherwise transferred by such owner except (a)(i) to a person who such owner reasonably believes is a qualified institutional buyer in a transaction meeting the requirements of Rule 144A, (ii) in an offshore transaction meeting the requirements of Rule 903 or Rule 904 of Regulation S, (iii) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available) or (iv) to an institutional accredited investor in a transaction exempt from the registration requirements of the Securities Act and (b) in accordance with all applicable securities laws of the states of the United States.
SECTION 2.10 Record Date.
Whenever (i) the Book-Entry Depositary shall receive notice of any action to be taken by the holder of a Global Security, or (ii) the Book-Entry Depositary otherwise deems it appropriate in respect of any other matter, the Book-Entry Depositary shall fix a record date for the determination of the principal amount at maturity represented by a Certificateless Depositary Interest at such record date, with respect to which the Depositary shall be entitled to take any such action or to act in respect of any such matter, which record date shall be the same date as that fixed with respect to the holder of the Global Security or holders, if any, of Registered Securities under the Indenture; provided, however, that the Book-Entry Depositary shall initially fix the Business Day (as defined in the Indenture) immediately preceding each Stated Maturity (as defined in the Indenture) as the record date with respect to payments of interest and principal relating to the Certificateless Depositary Interests and the Book-Entry Securities (the “Stated Maturity Record Date”); provided, further, that in the event the Book-Entry Depositary changes the Stated Maturity Record Date, the Book-Entry Depositary shall give notice to the Depositary and owners of Book-Entry Securities pursuant to Section 4.02 of this Agreement 30 days prior to such new Stated Maturity Record Date. Subject to the provisions of this Agreement, only the Depositary in whose name a Certificateless Depositary Interest is recorded in the records of the Book-Entry Depositary at the close of business on such record date shall be entitled to receive any payment, to give instructions as to such action or to act in respect of any such matter.
SECTION 2.11 Action in Respect of Certificateless Depositary Interests.
As soon as practicable after receipt by the Book-Entry Depositary of notice of any solicitation of consents or request for a waiver or other action by the holder of a Global Security under the Indenture or by the Book-Entry Depositary under this Agreement, the Book-Entry Depositary shall mail to the Depositary a notice containing (a) such information as is contained in the notice received, (b) a statement that the Depositary at the close of business on a specified record date (established in accordance with Section 2.10 hereof) will be entitled, subject to the provisions of or governing such Certificateless Depositary Interest or Global Security, to instruct the Book-Entry Depositary as to the consent, waiver or other action, if any, pertaining to this Agreement or the Indenture and (c) a statement as to the manner in which such instructions may be given. In addition, the Book-Entry Depositary will forward to the Depositary or, based upon instructions received from the Depositary, to owners of Book-Entry Securities, all materials pertaining to any such solicitation, request, offer or other action. Upon the written request of the Depositary received on or before the date established by the Book-Entry Depositary for such purpose, the Book-Entry Depositary shall endeavor insofar as practicable and permitted under the provisions of this Agreement or the Indenture, as the case may be, to take such action regarding the requested consent, waiver or other action in respect of all or only a portion of the principal amount at maturity of the Certificateless Depositary Interest or Global Security, as the case may be, in accordance with any instructions set forth in such request; provided, however, in no event shall the Book-Entry Depositary exercise any fiduciary or enforcement powers under this Agreement or the Indenture. The Book-Entry Depositary agrees that the Depositary may grant proxies or otherwise authorize DTC Participants (or persons owning Book-Entry Securities through such DTC Participants) to provide such instructions to the Book-Entry Depositary so that it may exercise any rights of a holder or take any other actions which a holder is entitled to take under the Indenture. The Book-Entry Depositary shall not itself exercise any discretion in the granting of consents or waivers or the taking of any other action in respect of a Global Security. Without prejudice to Section 2.07(c), the records of the Depositary shall, absent manifest error, be conclusive evidence of the owners of Book-Entry Securities and the principal amount at maturity represented by such Book-Entry Securities.
SECTION 2.12 Changes Affecting a Global Security.
Upon any reclassification of any Global Security, or upon any recapitalization, reorganization, merger or consolidation or sale of assets affecting the Company or to which the Company is a party, any securities that shall be received by the Book-Entry Depositary in exchange for or in respect of a Global Security shall be treated as a new Global Security or as part of such Global Security under this Agreement and any corresponding Certificateless Depositary Interest shall thenceforth represent such Global Security, including such new securities so received.
SECTION 2.13 Reports.
The Book-Entry Depositary shall promptly send to the Depositary any notices, reports and other communications received from the Company that are received by a Responsible Officer of the Book-Entry Depositary as holder of any Global Securities.
SECTION 2.14 Additional Amounts.
All payments made on Book-Entry Securities will be made free and clear of and without deduction or withholding for any present or future taxes, duties, assessments or governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Company is incorporated. If any such deduction or withholding is required for any present or future taxes, duties, assessments or governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Company is incorporated (“Taxes”), each owner of Book-Entry Securities shall, subject to the limitations contained in the Indenture, be entitled to receive from the Book-Entry Depositary additional amounts (“Additional Amounts”) with respect to any such payment, such limitations to be applied for these purposes by treating the owner of any Book-Entry Securities as a Holder or beneficiary of such payments (referred to in Section 1004 of the Indenture). At least 10 days prior to the first date on which withholding on account of Taxes would be required under applicable law or payment of Additional Amounts would be required pursuant to this Section 2.14 to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to such matters, the Company will furnish the Book-Entry Depositary with an Officer’s Certificate that shall specify by country the amount, if any, required to be withheld on such payments to the Depositary and the amount of Additional Amounts payable to the Depositary, net of amounts to which the Depositary or any owner of a Book-Entry Security is not entitled. The Book-Entry Depositary shall have no responsibility for determining whether the Depositary or any owner of a Book-Entry Security is entitled to the payment of Additional Amounts, but shall be entitled to rely conclusively for this purpose on the Officer’s Certificate or on certifications from the Depositary. The Company shall indemnify the Book-Entry Depositary for, and hold it harmless against, any loss, liability or expense reasonably and properly incurred without negligence or bad faith on its part arising out of or in connection with actions taken or omitted by it in reliance on any Officer’s Certificate furnished to it pursuant to this Section 2.14 or failure to furnish any such Officer’s Certificate. Notwithstanding anything to the contrary provided above, the Book-Entry Depositary shall pay or cause to be paid all Additional Amounts only out of funds that shall be received by it from the Company for that purpose.
ARTICLE THREE
THE BOOK-ENTRY DEPOSITARY
Section 3.01 Prevention or Delay in Performance by the Book-Entry Depositary.
The Book-Entry Depositary shall not incur any liability to any Holder of the Certificateless Depositary Interests, any beneficial owner or any other person hereunder or in connection herewith if, by reason of any provision of any present or future law or regulation, of any governmental or regulatory authority or securities exchange, or by reason of any act of God or war or other circumstance beyond the control of the Book-Entry Depositary, the Book-Entry Depositary shall be prevented or forbidden from doing or performing any act or thing that the terms of this Agreement provide shall be done or performed; and the Book-Entry Depositary shall not incur any liability to any Holder of the Certificateless Depositary Interests, any beneficial owner or any other person hereunder or in connection herewith by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or thing that the terms of this Agreement provide shall or may be done or performed, or by reason of any exercise of or failure to exercise, in each case in good faith, any discretion provided for in this Agreement.
Section 3.02 Compliance with Letter of Representations.
The Book-Entry Depositary agrees to comply with all of the provisions set forth in the Letter of Representations so long as DTC is the Holder.
Section 3.03 Charges of Book-Entry Depositary.
In order to facilitate the issue of the Securities, the Company agrees to pay promptly the Book-Entry Depositary such compensation to be agreed upon in writing from time to time for all services rendered by the Book-Entry Depositary under this Agreement and to reimburse the Book-Entry Depositary for reasonable out of pocket expenses incurred in connection with the preparation and delivery of this Agreement and the performance of its duties hereunder (including the reasonable and documented fees and expenses of its counsel). The obligations of the Company under this Section 3.03 shall survive the termination of this Agreement. The Book-Entry Depositary shall not be responsible for taxes and other governmental charges.
Section 3.04 Duties and Liabilities of Book-Entry Depositary.
The Book-Entry Depositary shall not be liable under this Agreement other than by reason of its own bad faith or negligence in the performance of such duties as are specifically set forth in this Agreement. The Book-Entry Depositary shall not be liable for any damages resulting from the transfer or delivery of the Global Securities in accordance with the terms of this Agreement. The Book-Entry Depositary shall not be liable for any action or inaction by it done in good faith reliance upon the advice of its accountants or legal counsel. The Book-Entry Depositary may request and rely and shall be protected in acting in reliance upon any written notice, request, direction or other document (whether in its original or facsimile form) believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties.
Section 3.05 Resignation or Removal of Book-Entry Depositary.
(a) No resignation or removal of the Book-Entry Depositary and no appointment of a successor Book-Entry Depositary pursuant to this Article shall become effective until (i) the acceptance of appointment by the successor Book-Entry Depositary in accordance with this Section 3.05 or (ii) the issuance of Registered Securities in accordance with the Indenture.
(b) The Book-Entry Depositary may at any time resign as Book-Entry Depositary hereunder by written notice of its election to do so delivered to the Trustee and the Company. If at the end of 120 days after delivery of such notice, no successor depositary has been appointed or accepted such appointment, the Book-Entry Depositary may terminate this Agreement by requesting the Company to issue Registered Securities in accordance with the Indenture and such termination shall become effective when Registered Securities shall have been so issued.
(c) The Book-Entry Depositary may be removed at any time upon not less than 30 days’ notice by the filing with it of an instrument in writing signed on behalf of the Company and specifying such removal and the date on which it is intended to become effective.
(d) If at any time
(i) the Book-Entry Depositary shall fail to resign after written request therefor by the Company or by the Depositary, or
(ii) the Book-Entry Depositary shall become incapable of acting with respect to any Certificateless Depositary Interest or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Book-Entry Depositary or of its property shall be appointed or any public officer shall take charge or control of the Book-Entry Depositary or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may immediately remove the Book-Entry Depositary and appoint a successor Book-Entry Depositary or (ii) the Depositary or Book-Entry Depositary may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Book-Entry Depositary and the appointment of a successor Book-Entry Depositary unless Registered Securities have been issued in accordance with the Indenture. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Book-Entry Depositary and appoint a successor Book-Entry Depositary.
(e) If the Book-Entry Depositary shall resign, be removed, or become incapable of acting or if a vacancy shall occur in the office of Book-Entry Depositary for any cause, the Company shall promptly appoint a successor Book-Entry Depositary (other than the Company). If no successor Book- Entry Depositary shall have been so appointed by the Company and accepted appointment in the manner required by this Section 3.05, the Depositary or Book-Entry Depositary may, on behalf of itself and all others similarly situated, petition (in the event of the Book-Entry Depositary’s removal pursuant to subsection 3.05(c) above, at the expense of the Company) any court of competent jurisdiction for the
appointment of a successor Book-Entry Depositary unless Registered Securities have been issued in accordance with the Indenture.
(f) In the event that the Company determines that it would become obligated to pay Additional Amounts under Section 2.14, the Book-Entry Depositary may be removed by the Company by written notice of such removal effective upon the appointment of a successor depositary, and its acceptance of such appointment as herein provided.
(g) Every successor Depositary shall execute and deliver to its predecessor and the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor Depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor.
(h) The Company shall give, or shall cause such successor Book-Entry Depositary to give, notice of each resignation and each removal of a Book-Entry Depositary and each appointment of a successor Book-Entry Depositary to the Depositary in accordance with Section 4.02 hereof. Each notice shall include the name and address of the successor Book-Entry Depositary. If the Company fails to give notice within ten days after acceptance of appointment by the successor Book-Entry Depositary, the successor Book-Entry Depositary shall cause such notice to be given at the expense of the Company.
(i) Any corporation into or with which the Book-Entry Depositary may be merged or consolidated shall be the successor of the Book-Entry Depositary, as the case may be, without the execution or filing of any document or of any further act.
Section 3.06 Obligations of the Book-Entry Depositary.
Without prejudice to Section 3.04, the Book-Entry Depositary assumes no obligation nor shall it be subject to any liability under this Agreement to the Holder or any beneficial owner (including, without limitation, liability with respect to the validity or worth of the Global Securities), other than that they agree to use their good faith and reasonable care in the performance of such duties as are specifically set forth in this Agreement.
The Book-Entry Depositary makes no representation or warranty and shall at no time have any responsibility for, or liability or obligation in respect of, the legality, validity, binding effect, adequacy or enforceability of the Global Securities, the performance and observance by the Company of its obligations under the Global Securities or the recoverability of any sum of interest or principal due or to become due from the Company in respect of the Global Securities.
The Book-Entry Depositary shall at no time have any responsibility for, or obligation or liability in respect of, the financial condition, credit worthiness, affairs, status or nature of the Company.
The Book-Entry Depositary shall at no time be liable for any act, default or omission of the Company under or in respect of the Global Securities.
Payments in respect of the Certificateless Depositary Interests will only be made to the extent of any amounts actually received by or on behalf of the Book-Entry Depositary in respect of the Global Securities.
The Book-Entry Depositary shall not be required to give notice to the Company or the Holder that the Global Securities are repayable or that any Event of Default in relation to the Global Securities has occurred pursuant to Article Five of the Indenture or take any proceedings to enforce payment under the Indenture, except as expressly provided otherwise in this Agreement.
The Book-Entry Depositary shall not be under any obligation to exercise in favor of the Holder any rights or set-off or of bankers’ lien or of counterclaims that may arise out of any other transaction between the Company and the Book-Entry Depositary.
The Book-Entry Depositary shall not be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Global Security, or take any other action or omit to take any action under this Agreement, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
The Book-Entry Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Book-Entry Depositary or in connection with a matter arising wholly after the removal or resignation of the Book-Entry Depositary, provided that the Book-Entry Depositary exercised its good faith and reasonable care while it acted as Book-Entry Depositary.
The Book-Entry Depositary shall have no liability for the calculation, timing or appropriateness of any interest, principal or other payment or distribution to be made in connection with the Global Securities, and the Company shall have sole responsibility therefor, provided that, the Book-Entry Depositary shall be liable for its own negligence or bad faith in connection with the foregoing.
The Book-Entry Depositary shall not be under any liability for interest on, or any obligation to invest or segregate, any monies at any time received by each of them pursuant to the terms and conditions of this Agreement except as required by law, provided that, the Book-Entry Depositary shall be liable for its own negligence or bad faith in connection with the foregoing.
The Book-Entry Depositary may own and deal in any class of securities of the Company and its affiliates.
The Book-Entry Depositary may enter into other dealings with the Company or any of its affiliates of any nature whatsoever.
Section 3.07 Indemnification.
(a) The Company shall fully indemnify the Book-Entry Depositary, any of its agents, officers, directors or employees for, and hold them harmless against any and all loss, liability, claim, damage or expense incurred (including the reasonable and documented fees, expenses and disbursements of its counsel) without its or their own negligence or bad faith, arising out of or in connection with the
acceptance, administration and performance of their duties hereunder, as well as the reasonable costs and expenses (including the reasonable and documented fees, expenses and disbursements of its counsel) of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder. Without limiting the generality of the foregoing, except as provided herein, the Book-Entry Depositary shall not have any duty or responsibility for and shall not be deemed to have been negligent with respect to, and the Company shall indemnify and hold harmless the Book-Entry Depositary against, any claim (i) that the Global Securities are not genuine or (ii) that disclosure with respect to applicable laws was not made in connection with the offering of the Securities. Notwithstanding any provisions of this Agreement to the contrary, the obligations of the Company to indemnify the Book-Entry Depositary under this Section 3.07 shall survive the termination of this Agreement and the resignation and removal of the Book-Entry Depositary and the payment of the Securities.
(b) In case any claim shall be made or action brought against the Book-Entry Depositary for any reason for which indemnity may be sought against the Company as provided above, the Book-Entry Depositary shall promptly notify the Company in writing setting forth the particulars of such claim or action and the Company may assume the defense thereof. In the event that the Company assumes the defense, the Book-Entry Depositary shall have the right to retain separate counsel in any such action but shall bear the fees and expenses of such counsel unless (i) the Company shall have specifically authorized the retaining of such counsel at its expense or (ii) the parties to such suit include the Book-Entry Depositary and the Company and the Book-Entry Depositary, has been advised in writing by such counsel that one or more legal defenses may be available to it which may not be available to the Company. The Book-Entry Depositary agrees to give all assistance reasonably required in connection with the conduct of any such claim or action, including permitting proceedings to be brought in its name.
(c) As used in this Section 3.07, the term “liability” shall include any losses, claims, damages, expenses (including without limitation the Book-Entry Depositary’s reasonable and documented costs and expenses in defending itself against any losses, claims or investigations of any nature whatsoever) or other liabilities, joint or several, arising for any reason under this Agreement.
(d) The obligations of the Company under this Section 3.07 shall be in addition to any liability which it may otherwise have and shall extend, upon the same terms and conditions, to each officer, director, employee and agent of the Book-Entry Depositary and to each person, if any, who controls the Book-Entry Depositary.
(e) The obligations set forth in this Section 3.07 shall survive the termination of this Agreement.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 Notices to Book-Entry Depositary or Company.
Any request, demand, authorization, direction, notice, consent, or waiver or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with,
(a) the Book-Entry Depositary by the Depositary, the Trustee or the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and faxed or delivered or mailed and received, first-class postage prepaid, to the Book-Entry Depositary at its Corporate Trust Office, Attention: Global Agency & Trust Services, or at any other address previously furnished in writing by the Book-Entry Depositary to the Depositary, the Trustee and the Company, or
(b) the Company by the Book-Entry Depositary shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and faxed or delivered or mailed and received, first-class postage prepaid to Vodafone AirTouch Public Limited Company, Attention: Group Treasury, The Courtyard, 2-4 London Road, Newbury, Berkshire, RG14 1JX, England, or at any other address previously furnished in writing to the Book-Entry Depositary by the Company.
SECTION 4.02 Notice to Depositary and Owners; Waiver.
Where this Agreement provides for notice to the Depositary or owners of Book-Entry Securities of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided or as provided in the Letter of Representations) if in writing and faxed or mailed, first-class postage prepaid, to the Depositary at the facsimile number or address notified to the Book-Entry Depositary, in each case not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Where this Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by the Depositary shall be filed with the Book-Entry Depositary, but such filing shall not be a condition precedent to the validity of any such action taken in reliance upon such waiver.
In case by reason of the suspension of phone or regular mail service or by reason of any other cause it shall be impracticable to give such notice by facsimile or mail, then such notification as shall be made with the approval of the Book-Entry Depositary shall constitute a sufficient notification for every purpose hereunder.
SECTION 4.03 Effect of Headings.
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 4.04 Successors and Assigns.
All covenants and agreements by the Company in this Agreement and the Securities shall bind the Company’s successors and assigns, whether so expressed or not.
SECTION 4.05 Separability Clause.
In case any provision in this Agreement or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.
SECTION 4.06 Benefits of Agreement.
Nothing in this Agreement, the Securities, or the Indenture, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefits or any legal or equitable right, remedy or claim under this Agreement. The owners from time to time of the Book-Entry Securities shall be parties to this Agreement and, by their acceptance of delivery of the Book-Entry Securities, shall be bound by all of the terms and conditions hereof and of the Indenture and the Securities.
SECTION 4.07 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
SECTION 4.08 Jurisdiction.
By the execution and delivery of this Agreement, the Company (i) acknowledges that it has, by separate written instrument, irrevocably designated and appointed CT Corporation System at 111 8th Avenue, 13th Floor, New York, New York 10011 as its authorized agent upon which process may be served in any suit or proceeding by the Book-Entry Depositary arising out of this Agreement that may be instituted in any Federal or State court in the Borough of Manhattan, The City of New York, and acknowledges that CT Corporation System has accepted such designation, (ii) submits to the jurisdiction of any such court in any such suit or proceeding, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding or any claim of inconvenient forum and (iii) agrees that service of process upon CT Corporation System and written notice of said service to it (mailed or delivered to its Secretary at its principal office) shall be deemed in every respect effective service of process upon it in any such suit or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation System in full force and effect so long as this Agreement shall be in full force and effect and so long as any Global Security shall be outstanding.
To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution or otherwise) with respect to itself or its property, hereby
irrevocably waives such immunity in respect of its respective obligations under this Agreement to the fullest extent permitted by law.
SECTION 4.09 Counterparts.
This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.
SECTION 4.10 Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office for inspection by any owner of Book-Entry Securities.
SECTION 4.11 Satisfaction and Discharge.
This Agreement upon an Order of the Company shall cease to be of further effect, and the Book-Entry Depositary, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Agreement, when (i) the Indenture has been satisfied and discharged pursuant to the provisions thereof or Registered Securities have been issued and the Global Securities have been canceled in accordance with the provisions of Section 2.05 or 2.06 hereof, (ii) the Company has paid or caused to be paid all sums payable hereunder by the Company and (iii) the Company has delivered to the Book-Entry Depositary an Officer’s Certificate and an Opinion of Counsel, stating that all conditions precedent herein provided relating to the satisfaction and discharge of this Agreement have been complied with.
SECTION 4.12 Amendments.
The Company and the Book-Entry Depositary may amend this Agreement without the consent of the Depositary or the owners of Book-Entry Securities:
(a) to cure any inconsistency, omission, defect or ambiguity in this Agreement;
(b) to add to, or remove from, the covenants and agreements of the Book-Entry Depositary or the Company;
(c) to evidence or effectuate the assignment of the Book-Entry Depositary’s rights and duties to a qualified successor, as provided herein;
(d) to evidence the succession of another person to the Company (when a similar amendment with respect to the Indenture is being executed) and the assumption by any such successor of the covenants of the Company herein;
(e) to comply with any requirements of the Securities and Exchange Commission and the TIA; or
(f) to modify, alter, amend or supplement this Agreement in any other manner that is not adverse to the Depositary or the owners of Book-Entry Securities.
No amendment that adversely affects the Depositary or the holders of Book-Entry Securities may be made to this Agreement or the Book-Entry Securities without the consent of the Depositary.
SECTION 4.13 Book-Entry Depositary to Sign Amendments.
The Book-Entry Depositary shall sign any amendment authorized pursuant to Section 4.12 if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Book-Entry Depositary. If it does, the Book-Entry Depositary may, but need not, sign it. In signing such amendment, the Book-Entry Depositary shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and shall be fully protected in reasonably relying upon, an Officer’s Certificate (which need only cover the matters set forth in clause (a) below) and an Opinion of Counsel stating that:
(a) such amendment is authorized or permitted by this Agreement;
(b) the Company has all necessary corporate power and authority to execute and deliver the amendment and that the execution, delivery and performance of such amendment has been duly authorized by all necessary corporate action;
(c) the execution, delivery and performance of the amendment do not conflict with, or result in a material breach of or constitute a default under any of the terms, conditions or provisions of (i) this Agreement or (ii) the Memorandum and Articles of Association of the Company; and
(d) such amendment has been duly and validly executed and delivered by the Company, and this Agreement together with such amendment constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.
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Group Treasurer |
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CITIBANK, N.A. | |
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.
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VODAFONE AIRTOUCH PUBLIC LIMITED | |
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CITIBANK, N.A. | |
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ANNEX A — Form of
Regulation S Certificate
REGULATION S CERTIFICATE
Citibank, N.A., as Book-Entry Depositary
111 Wall Street, 5th Floor
New York, New York 10005
Re: [·%] Notes due · of Vodafone AirTouch Public Limited Company (the “· Securities”)
Reference is made to the Depositary Agreement, dated as of February 10, 2000 (the “Deposit Agreement”), among Vodafone AirTouch Public Limited Company (the “Company”), Citibank, N.A., as Book-Entry Depositary, and the owners of Book-Entry Securities. Terms used herein and defined in the Deposit Agreement or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined.
This certificate relates to U.S. $· principal amount of Securities, or Book-Entry Interests therein (the “Specified Securities”):
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The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities or (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are represented by a Global Security, Book-Entry Securities therein are held through The Depository Trust Company or an agent member in the name of the Undersigned, as or on behalf of the Owner. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a person (the “Transferee”) who will take delivery in the form of a Regulation S Security. In connection with such transfer, the Owner hereby certifies that, unless such transfer is being effected pursuant to an effective registration statement under the Securities Act, it is being effected in accordance with Rule 904 or Rule 144
under the Securities Act and with all applicable securities laws of the states of the United States and other jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an affiliate of the Company or any such distributor or a person acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a person in the United States or for the account or benefit of a U.S. Person;
(C) either:
(i) at the time the buy order was originated, the Transferee was outside the United States or the Owner and any person acting on its behalf reasonably believed that the Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through the facilities of the Eurobond market, as regulated by the International Securities Market Association, or another designated offshore securities market and neither the Owner nor any person acting on its behalf knows that the transaction has been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a selling concession, fee or other renumeration in respect of the Specified Securities, and the transfer is to occur during the Restricted Period, then the requirements of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after February 10, 2001 and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after February 10, 2002 and the Owner is not, and during the preceding three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the Purchasers.
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(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.) |
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(If the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.) |
ANNEX B — Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
Citibank, N.A., as Book-Entry Depositary
111 Wall Street, 5th Floor
New York, New York 10005
Re: ·% Notes due · of Vodafone AirTouch Public Limited Company, (the “· Securities”)
Reference is made to the Depositary Agreement, dated as of February 10, 2000 (the “Deposit Agreement”), among Vodafone AirTouch Public Limited Company (the “Company”), Citibank, N.A., as Book-Entry Depositary, and the owners of Book-Entry Securities. Terms used herein and defined in the Deposit Agreement or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the “Securities Act”) are used herein as so defined.
This certificate relates to U.S. $· principal amount of Securities, or Book-Entry Securities therein (the “Specified Securities”):
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The person in whose name this certificate is executed below (the “Undersigned”) hereby certifies that either (i) it is the sole beneficial owner of the Specified Securities or (ii) it is acting on behalf of all the beneficial owners of the Specified Securities and is duly authorized by them to do so. Such beneficial owner or owners are referred to herein collectively as the “Owner”. If the Specified Securities are represented by a Global Security, Book-Entry Securities therein are held through [The Depository Trust Company] [Euroclear and Clearstream, Luxembourg] or an agent member in the name of the Undersigned, as or on behalf of the Owner. If the Specified Securities are not represented by a Global Security, they are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a person (the “Transferee”) who will take delivery in the form of a Restricted Security. In connection with such transfer,
the Owner hereby certifies that, unless such transfer is being effected pursuant to an effective registration statement under the Securities Act, it is being effected in accordance with Rule 144A or Rule 144 under the Securities Act and all applicable securities laws of the states of the United States and other jurisdictions. Accordingly, the Owner hereby further certifies as:
(1) Rule 144A Transfers. If the transfer is being effected in accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person that the Owner and any person acting on its behalf reasonably believe is a “qualified institutional buyer” within the meaning of Rule 144A, acquiring for its own account or for the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken reasonable steps to ensure that the Transferee is aware that the Owner may be relying on Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after February 10, 2001 and is being effected in accordance with the applicable amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after February 10, 2002 and the Owner is not, and during the preceding three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the Purchasers.
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(Print the name of the Undersigned, as such term is defined in the second paragraph of this certificate.) |
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(If the Undersigned is a corporation, partnership or fiduciary, the title of the person signing on behalf of the Undersigned must be stated.) |
Exhibit 5.1
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Linklaters LLP One Silk Street London EC2Y 8HQ Telephone (+44) 20 7456 2000 Facsimile (+44) 20 7456 2222 DX Box Number 10 CDE
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The Directors Vodafone Group Plc Vodafone House The Connection Newbury Berkshire RG14 2FN |
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29 July 2020 | |
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Our Ref |
L-291356 | |
Ladies and Gentlemen:
Vodafone Group Plc (the “Issuer”)
Registration Statement on Form F-3 in respect of debt securities (the “Debt Securities”), debt warrants (the “Debt Warrants”), preference shares (the “Preference Shares”), equity warrants (the “Equity Warrants”) and ordinary shares (the “Ordinary Shares” which, together with the Debt Securities, Debt Warrants, Equity Warrants and Preference Shares, are referred to herein as the “Securities”)
1 This opinion is furnished to you in connection with the Registration Statement on Form F-3 (the “Registration Statement”) filed with the United States Securities and Exchange Commission (the “Commission”) on 29 July 2020. We have acted as your English legal advisers in connection with the registration of the Securities under the United States Securities Act of 1933 (the “Securities Act”).
2 This opinion is limited to English law as applied by the English courts and HM Revenue & Customs (“HMRC”) practice and in each case, in effect on the date of this opinion. Such laws and practice are subject to change, possibly with retrospective effect. HMRC’s practice may not be binding on HMRC and there can be no assurance that HMRC will not depart from such practice, either because of the presence of particular factual circumstances or generally. This opinion is given on the basis that it, and all matters relating to it, will be governed by, and that it (including all terms used in it) will be construed in accordance with, English law. In particular, we express no opinion on matters of federal law of the United States or the laws of any State of the United States or the laws of any other jurisdiction. Save for paragraph 5.5 below, we do not express (i) any opinion as to any taxes or duties that will or may arise as a result of any other transaction effected in connection with the Securities or (ii) any opinion as to any other taxation matter which will or may arise as a result of any transaction effected in connection with the Securities.
3 For the purpose of this opinion we have examined the documents listed and, where appropriate, defined in the Schedule to this opinion.
4 We have assumed that:
4.1 all copy documents conform to the originals and all originals are genuine and complete;
4.2 each signature is the genuine signature of the individual concerned;
4.3 (except in the case of the Issuer) all relevant documents are within the capacity and powers of, and have been validly authorised by, each of the respective parties thereto;
4.4 (in the case of each party) those documents have been or (in the case of the Securities) will be validly executed and delivered by the relevant party;
4.5 each of the documents which are the subject of this opinion is valid and binding on each party under the law to which it is expressed to be subject where that is not English law and that words and phrases used in those documents have the same meaning and effect as they would if those documents were governed by English law;
4.6 the meeting of the Board of Directors of the Issuer held on 27 July 2020 (in respect of which a certified copy of the Minutes has been supplied to us) was duly convened, constituted and quorate and the resolutions referred to in the Minutes were validly passed and remain in full force and effect without modification;
4.7 the terms of any series of Debt Securities will not be inconsistent with the provisions of the Indenture and there will be no provision in any supplement to the prospectus dated 29 July 2020 (the “Prospectus”) or the Registration Statement or any other document which would affect the content of this opinion; and
4.8 each issue of Securities will be duly authorised and in respect of each issue of Ordinary Shares, Equity Warrants or Preference Shares, the Issuer will have sufficient authorised but unissued share capital and the directors of the Issuer will have been granted the necessary authority to allot the relevant Securities.
5 Based on the documents referred to, and assumptions made, in paragraphs 3 and 4 above, and subject to the qualifications in paragraphs 6 to 10 below and to any matters not disclosed to us, we are of the following opinion:
5.1 The Issuer has been incorporated and is existing as a company with limited liability under the laws of England.
5.2 The Issuer has corporate power to enter into, and perform its obligations under, the Indenture and the Securities Depositary Agreement and has taken all necessary corporate action to authorise its execution, delivery and performance of the Indenture and the Securities Depositary Agreement.
5.3 Sections 501(5), 501(6) and 501(7) of the Indenture, which are expressed to be governed by English law, constitute valid, binding and enforceable terms.
5.4 When the Ordinary Shares and the Preference Shares are issued and delivered against payment therefor as contemplated in the Registration Statement and in conformity with the Articles and so as not to violate any applicable law, such Ordinary Shares and Preference Shares will be validly issued and fully paid up and no further contributions in respect of such Ordinary Shares and Preference Shares when issued as contemplated in the Registration Statement will be required to be made to the Issuer by the holders thereof, by reason solely of their being such holders.
5.5 The statements of United Kingdom law and HMRC practice contained in the Registration Statement under the heading “Taxation — United Kingdom Taxation”, insofar as such statements purport to summarise certain tax laws of the United Kingdom or HMRC practice, were, at the date of the Registration Statement and subject to the assumptions and qualifications in that section of the Registration Statement, a correct summary in all material respects of the matters set out therein.
6 We express no opinion as to the compliance or otherwise with (i) any financial limitations on borrowings or covenants by the Issuer contained in the Articles and (ii) any limitations on the maximum aggregate principal amount of Securities which may be issued by the Issuer as contemplated by the Registration Statement.
7 The term “enforceable” as used in paragraph 5.3 means that the obligations assumed by the relevant party under the relevant document are of a type which the English courts enforce. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular:
7.1 Enforcement may be limited by (a) bankruptcy, insolvency, liquidation and moratorium laws, (b) laws relating to reorganisation and (c) laws of general application relating to or affecting the rights of creditors.
7.2 Enforcement may be limited by general principles of equity - for example, equitable remedies may not be available where damages are considered to be an adequate remedy.
7.3 Claims may become barred under the Limitation Act 1980 or may be or become subject to set-off or counterclaim.
8 This opinion is given on the basis of English law in force, and as it affects the obligations under the Indenture and/or the Securities, as at the date of this opinion. This opinion is given on the basis that there will be no amendment to or termination or replacement of the documents, authorisations and consents referred to in the Schedule to this opinion. This opinion is also given on the basis that we undertake no responsibility to notify you of any change in English law or otherwise to update this opinion in any respect after the date of this opinion.
9 This opinion is addressed to you in connection with the filing of the Registration Statement. It is not to be transmitted to anyone else for any purpose or quoted or referred to in any public document or filed with anyone without our express consent.
10 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us made under the headings “Taxation” and “Validity of Securities” in the Registration Statement. In giving this consent we do not admit that we are within the category of persons whose consent is required within Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Yours faithfully
/s/ Linklaters LLP
Linklaters LLP
SCHEDULE
1 A certified copy of the Articles of Association of the Issuer (the “Articles”).
2 A certified copy of certain resolutions passed by the Board of Directors of the Issuer on 27 July 2020 (the “Minutes”).
3 A copy of certain resolutions passed at the Annual General Meeting of the shareholders of the Issuer held on 28 July 2020.
4 The Registration Statement, including the form of Prospectus.
5 The Indenture dated 10 February 2000 (the “Indenture”) between the Issuer and The Bank of New York Mellon (as successor trustee to Citibank, N.A. pursuant to an Agreement of Resignation, Appointment and Acceptance dated 24 July 2007 between the Issuer, The Bank of New York and Citibank, N.A.).
6 The securities depositary agreement dated 10 February 2000 (the “Securities Depositary Agreement”) between the Issuer and The Bank of New York Mellon (as successor book-entry depositary to Citibank, N.A. pursuant to an Agreement of Resignation, Appointment and Acceptance dated 24 July 2007 between the Issuer, The Bank of New York and Citibank, N.A.).
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Linklaters LLP |
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The Directors |
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July 29, 2020 |
Ladies and Gentlemen:
We have acted as United States counsel to Vodafone Group Plc, a public limited company organized under the laws of England and Wales (the “Issuer”) in connection with the automatic shelf registration statement on Form F-3 (the “Registration Statement”) filed with the United States Securities and Exchange Commission on July 29, 2020, relating to the registration under the United States Securities Act of 1933 (the “Securities Act”) of an indeterminate amount of the Issuer’s (i) debt securities (the “Debt Securities”), (ii) debt warrants (the “Debt Warrants”), (iii) equity warrants and (iv) preference shares. The Debt Securities may be issued from time to time pursuant to the indenture dated February 10, 2000 between Vodafone and The Bank of New York Mellon (as successor trustee to Citibank, N.A. pursuant to an Agreement of Resignation, Appointment and Acceptance dated July 24, 2007 between Vodafone, The Bank of New York Mellon and Citibank N.A. (the “Trustee”)) (the “Indenture”).
This opinion is limited to the federal law of the United States and the laws of the State of New York, and we express no opinion as to the effect of the laws of any other State of the United States or any other jurisdiction.
We have examined the Indenture, such certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion. We have assumed that the Issuer has the power to execute and deliver the Debt Securities and the Indenture, and perform its obligations thereunder, that the Indenture has been duly and validly authorized, executed and delivered under the laws of England and Wales by the Issuer, that the Debt Securities conform to the form examined by us and that the signatures on all documents examined by us are genuine, assumptions that we have not independently verified.
In our opinion:
1 The Indenture has been duly executed and delivered by the Issuer and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Issuer enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; provided, however, that we
Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC326345. It is a law firm authorised and regulated by the Solicitors Regulation Authority. The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP together with a list of those non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ or on www.linklaters.com and such persons are either solicitors, registered foreign lawyers or European lawyers.
Please refer to www.linklaters.com/regulation for important information on our regulatory position.
express no opinion as to the provisions relating to events of default under Sections 501(5), 501(6) and 501(7) of the Indenture, which are governed by English law.
2 The Debt Securities, when executed and delivered by the Issuer against payment therefor pursuant to the terms of the Indenture and when authenticated in accordance with the terms of the Indenture, will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
3 The Debt Warrants, when the debt warrant agreements relating to the Debt Warrants have been duly authorized, executed and delivered, the terms of the Debt Warrants and of their issuance and sale have been duly established in conformity with the applicable debt warrant agreements so as not to violate any applicable law or result in a default under, or breach of, any agreement or instrument binding upon the Issuer and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Issuer, and the Debt Warrants have been duly executed and authenticated in accordance with the applicable debt warrant agreements, will constitute valid and legally binding obligations of the Issuer, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
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 Securities Act.
Very truly yours,
/s/ Linklaters LLP
Linklaters LLP
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Linklaters LLP |
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The Directors |
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July 29, 2020 |
Ladies and Gentlemen:
We have acted as United States tax counsel to Vodafone Group Plc (the “Issuer”) in connection with the registration statement on Form F-3 under the United States Securities Act of 1933 (the “Securities Act”) filed with the United States Securities and Exchange Commission (the “Commission”) on the date hereof (the “Registration Statement”). We hereby confirm to you that our opinion is as set forth under the heading “Taxation — U.S. Federal Income Taxation” in the Registration Statement, subject to the limitations set forth therein.
We hereby consent to the filing with the Commission of this opinion as an exhibit to the Registration Statement and the reference to us under the heading “Taxation” in the Registration Statement. By giving the foregoing consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Linklaters LLP
Linklaters LLP
Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC326345. It is a law firm authorised and regulated by the Solicitors Regulation Authority. The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP together with a list of those non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ or on www.linklaters.com and such persons are either solicitors, registered foreign lawyers or European lawyers.
Please refer to www.linklaters.com/regulation for important information on our regulatory position.
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 Vodafone Group Plc for the registration of debt securities, warrants, and preference shares and to the incorporation by reference therein of our reports dated 2 July 2020, with respect to the consolidated financial statements of Vodafone Group Plc, and the effectiveness of internal control over financial reporting of Vodafone Group Plc, included in its Annual Report (Form 20-F) for the year ended 31 March 2020, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
London, United Kingdom
29 July 2020
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of Vodafone Group plc of our report dated June 7, 2019 relating to the consolidated financial statements, which appears in Vodafone Group plc’s Annual Report on Form 20-F for the year ended March 31, 2020. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
London, United Kingdom
July 29, 2020
Exhibit 25
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) o
The Bank of New York Mellon
(Exact name of trustee as specified in its charter)
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New York |
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13-5160382 |
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(Jurisdiction of incorporation |
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(I.R.S. Employer |
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if not a U.S. national bank) |
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Identification No.) |
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240 Greenwich Street |
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New York, New York |
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10286 |
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(Address of principal executive offices) |
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(Zip code) |
Legal Department
The Bank of New York Mellon
240 Greenwich Street
New York, NY 10286
(212) 635-1270
(Name, address and telephone number of agent for service)
Vodafone Group Public Limited Company
(Exact name of obligor as specified in its charter)
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England and Wales |
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Not Applicable |
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(State or other jurisdiction of |
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(I.R.S. Employer |
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incorporation or organization) |
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Identification No.) |
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Vodafone House |
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The Connection |
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Newbury, Berkshire |
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England |
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RG14 2FN |
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(Address of principal executive offices) |
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(Zip code) |
Debt Securities
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the Trustee:
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(a) |
Name and address of each examining or supervising authority to which it is subject. |
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Superintendent of Banks of the State of New York |
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One State Street, New York, N.Y. 10004-1417 and Albany, N.Y. 12203 |
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Federal Reserve Bank of New York |
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33 Liberty Plaza, New York, N.Y. 10045 |
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Federal Deposit Insurance Corporation |
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550 17th Street, N.W., Washington, D.C. 20429 |
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New York Clearing House Association |
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New York, N.Y. 10005 |
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(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.
None.
Item 16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
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1. |
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– |
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A copy of the Organization Certificate of The Bank of New York Mellon (formerly The Bank of New York (formerly Irving Trust Company)) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735.) |
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4. |
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– |
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A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 with Registration Statement No. 333-207042.) |
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6. |
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– |
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The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382.) |
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7. |
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– |
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A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, 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 London, England, on the 29th day of July, 2020.
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THE BANK OF NEW YORK MELLON | ||
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By: |
/s/ Marilyn Chau | |
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Name: |
Marilyn Chau |
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Title: |
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 2020, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
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Dollar amounts in thousands |
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ASSETS |
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Cash and balances due from depository institutions: |
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Noninterest-bearing balances and currency and coin |
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4,072,000 |
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Interest-bearing balances |
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165,889,000 |
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Securities: |
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Held-to-maturity securities |
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37,050,000 |
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Available-for-sale securities |
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99,180,000 |
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Equity securities with readily determinable fair values not held for trading |
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56,000 |
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Federal funds sold and securities purchased under agreements to resell: |
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Federal funds sold in domestic offices |
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0 |
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Securities purchased under agreements to resell |
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13,340,000 |
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Loans and lease financing receivables: |
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Loans and leases held for sale |
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0 |
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Loans and leases held for investment |
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32,279,000 |
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LESS: Allowance for loan and lease losses |
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124,000 |
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Loans and leases held for investment, net of allowance |
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32,155,000 |
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Trading assets |
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6,612,000 |
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Premises and fixed assets (including capitalized leases) |
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2,967,000 |
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Other real estate owned |
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1,000 |
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Investments in unconsolidated subsidiaries and associated companies |
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1,680,000 |
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Direct and indirect investments in real estate ventures |
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0 |
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Intangible assets: |
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6,963,000 |
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Other assets |
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17,072,000 |
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Total assets |
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387,037,000 |
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LIABILITIES |
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Deposits: |
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In domestic offices |
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207,668,000 |
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Noninterest-bearing |
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96,706,000 |
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Interest-bearing |
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110,962,000 |
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In foreign offices, Edge and Agreement subsidiaries, and IBFs |
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130,088,000 |
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Noninterest-bearing |
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3,997,000 |
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Interest-bearing |
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126,091,000 |
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Federal funds purchased and securities sold under agreements to repurchase: |
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Federal funds purchased in domestic offices |
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524,000 |
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Securities sold under agreements to repurchase |
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3,654,000 |
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Trading liabilities |
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5,061,000 |
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Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
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3,415,000 |
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Not applicable |
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Not applicable |
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Subordinated notes and debentures |
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0 |
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Other liabilities |
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9,664,000 |
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Total liabilities |
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360,074,000 |
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EQUITY CAPITAL |
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Perpetual preferred stock and related surplus |
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0 |
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Common stock |
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1,135,000 |
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Surplus (exclude all surplus related to preferred stock) |
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11,489,000 |
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Retained earnings |
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15,814,000 |
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Accumulated other comprehensive income |
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-1,475,000 |
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Other equity capital components |
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0 |
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Total bank equity capital |
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26,963,000 |
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Noncontrolling (minority) interests in consolidated subsidiaries |
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0 |
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Total equity capital |
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26,963,000 |
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Total liabilities and equity capital |
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387,037,000 |
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I, Michael Santomassimo, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Michael Santomassimo
Chief Financial Officer
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
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Thomas P. Gibbons |
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Samuel C. Scott |
Directors | |
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Joseph J. Echevarria |
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