THE ROYAL BANK OF SCOTLAND GROUP plc [ ] American Depositary Shares, Series [ ] Representing [ ] Non-Cumulative Dollar Preference Shares, Series [ ] (Nominal Value $.01 each) Underwriting Agreement
Exhibit
1.2
[
] American Depositary Shares, Series [ ] Representing
[
] Non-Cumulative Dollar Preference Shares, Series [ ] (Nominal Value $.01
each)
_______________
__, ____
[NAMES OF
REPRESENTATIVES]
Ladies
and Gentlemen:
From time
to time The Royal Bank of Scotland Group plc, a public limited company
incorporated and registered in Scotland, United Kingdom (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), or to purchasers
procured by them, an aggregate number of American depositary shares representing
non-cumulative preference shares as specified in Schedule II to the Pricing
Agreement. It is contemplated hereby that a Pricing Agreement will be entered
into on the date hereof with respect to [ ] authorized but unissued Category II
Non-cumulative Dollar Preference Shares, Series [ ] in the capital of the
Company, having a nominal value of $.01 each (the “Series [ ] Preference
Shares”), to be represented by [ ] American Depositary Shares, Series [ ]
(the “ADSs”, and
together with the Series [ ] Preference Shares, the “Securities”). In accordance
with the Amended and Restated Nominee Agreement dated November 8, 2005 between
the Company and RBS Shelf Nominees Limited (as amended and/or supplemented from
time to time), the Series [ ] Preference Shares are to be issued to RBS Shelf
Nominees Limited in fully registered form, and then subsequently in the form of
share warrants to bearer. RBS Shelf Nominees Limited will deposit the Series [ ]
Preference Shares with The Bank of New York, as Depositary (the “ADR Depositary”), in bearer
form, on behalf of the Company pursuant to a deposit agreement, as amended and
restated as of November 2, 2001 (the “ADR Deposit Agreement”) among
the Company, the ADR Depositary and the holders from time to time of the
American Depositary Receipts to be issued thereunder representing the Series [ ]
Preference Shares. The American Depositary Receipts evidencing the ADSs are
herein referred to as the “ADRs.”
[Subject
to certain conditions, the Company may substitute the Series [ ] Preference
Shares in whole, but not in part, with Qualifying Non-Innovative Tier 1
Securities (as defined in the Prospectus) (the “Substituted Securities”), at
any time after [ ] (the “substitution date”) in
accordance with the terms of the Series [ ] Preference Shares without any
requirement for consent or approval of the holders of the Series [ ] Preference
Shares.]
The terms
of, and rights attached to, any particular issuance of Securities shall be as
specified in the Pricing Agreement relating thereto. The offering of the
Securities will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the Pricing
Agreement, this Agreement shall be deemed to incorporate the Pricing
Agreement.
1. Particular
sales of Securities may be made from time to time to the Underwriters of such
Securities, or to purchasers procured by them, 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, or procure purchasers for, the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase, or procure
purchasers for, any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Securities specified therein. Each Pricing
Agreement shall specify the aggregate number of shares of such Securities, the
initial public offering price of such Securities, the purchase price to the
Underwriters of such Securities, the names of the Underwriters of such
Securities, the names of the Representatives of such Underwriters and the number
of shares of such Securities to be purchased by each Underwriter, or by
purchasers procured by such Underwriter, and shall set forth the date, time and
manner of delivery of such Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Registration
Statement (as defined below), the Disclosure Package (as defined below) and
prospectus with respect thereto) the terms of such 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 facsimile communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not
joint.
The
Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) an
automatic shelf registration statement as defined under Rule 405 under the U.S.
Securities Act of 1933, as amended the (“1933 Act”) on Form F-3 (No.
333-_______) and related preliminary prospectus for the registration of, among
other securities, dollar preference shares of the Company, including the Series
[ ] Preference Shares, in accordance with the provisions of the 1933 Act and the
rules and regulations of the Commission thereunder (the “1933 Act Regulations”). In
addition, the Company has prepared and filed with the Commission a registration
statement on Form F-6 (No. 333-127867) and a related prospectus for the
registration under the 1933 Act of the ADSs.
The
registration statement on Form F-3, as amended to the date on which it became
effective prior to the date of this Agreement (including any prospectus
supplement relating to the Securities and any other information, if any, deemed
to be part of such registration statement pursuant to Rule 430B of the 1933 Act
Regulations), and the prospectus constituting a part thereof (including in each
case all documents, if any, incorporated by reference therein to such date) are
hereinafter referred to as the “Registration Statement” and
the “Prospectus”,
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respectively,
except that if any revised prospectus or prospectus supplement shall be provided
to the Underwriters by the Company for use in connection with the offering of
the Securities which differs from the Prospectus on file at the Commission at
the time the Registration Statement became effective (whether or not such
revised prospectus is required to be filed by the Company pursuant to Rule
424(b) of the 1933 Act Regulations), the term “Prospectus” shall refer to
such revised prospectus or include such prospectus supplement, as the case may
be, from and after the time such revised prospectus or prospectus supplement is
first provided to the Underwriters for such use and if the Company files any
documents pursuant to Section 13, 14 or 15 of the U.S. Securities Exchange Act
of 1934, as amended (the “1934
Act”), after the Registration Statement became effective and prior to the
termination of the offering of the Securities by the Underwriters, which
documents are deemed to be or, in the case of a Report on Form 6-K, are
designated as being incorporated by reference into the Prospectus pursuant to
Form F-3 under the 1933 Act Regulations, the term “Prospectus” shall refer to
said prospectus as modified to include the documents so filed from and after the
time said documents are filed with or furnished to the
Commission. The term “Preliminary Prospectus” means
any preliminary form of the Prospectus (including any preliminary prospectus
supplement) which is used prior to the filing of the Prospectus and first filed
with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations. The term “Free Writing Prospectus” has
the meaning set forth in Rule 405 of the 1933 Act Regulations. The term “Issuer Free Writing
Prospectus” means (i) any material that satisfies the conditions set
forth in Rule 433 of the 1933 Act Regulations and (ii) any roadshow
presentation, including any Bloomberg roadshow presentation. The term “Disclosure Package” means (i)
the Preliminary Prospectus, (ii) any Issuer Free Writing Prospectuses identified
in Annex II hereto, (iii) the final term sheet prepared and filed pursuant to
Section 5(d) of this Agreement (the “Term Sheet”) and (iv) any
other Free Writing Prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package.
The
registration statement on Form F-6 for the registration of the ADSs evidenced by
ADRs, in the form in which it became effective prior to the date of this
Agreement, and the prospectus included therein are hereinafter called the “ADR Registration Statement”
and the “ADR
Prospectus”, respectively.
“Applicable Time” means
[ ] p.m. (Eastern time) on the date hereof or such other time as
agreed by the Company and the Representatives.
2. The
Company represents and warrants to, and agrees with, each of the Underwriters,
as of the date hereof, as of the Applicable Time, and as of the Time of Delivery
referred to in Section 4 hereof that:
(a) (i)
An “automatic shelf registration statement” as defined under Rule 405 under the
1933 Act on Form F-3 (File No. 333-_____) in respect of the Securities has been
filed with the Commission not earlier than three years prior to the date hereof;
such registration statement, and any post-effective amendment thereto, became
effective on filing; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission, and no notice
of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act
has been received by the Company; (ii) No order
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preventing
or suspending the use of the Prospectus, any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission.
(b) (i)
The Disclosure Package does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (ii) any individual Issuer Free Writing Prospectus, when
considered together with the Disclosure Package, 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
representations and warranties in this subsection shall not apply to statements
in, or omissions from, the Disclosure Package or any Issuer Free Writing
Prospectus made in reliance upon, and in conformity with, information furnished
to the Company in writing by any Underwriter through the Representatives
expressly for use in the Disclosure Package.
(c) The
Prospectus does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to statements
in, or omissions from, the Prospectus made in reliance upon, and in conformity
with, information furnished to the Company in writing by any Underwriter through
the Representatives expressly for use in the Registration Statement or
Prospectus, provided, further, that the
representations and warranties in this subsection shall not apply to that part
of the Registration Statement that constitutes the Statement of Eligibility (the
“Form T-1”) under the
U.S. Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the
trustee (the “Trustee”).
(d) The
documents incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus, at the time they were filed with the
Commission or when they became effective, complied in all material respects with
the requirements of the 1934 Act and the rules and regulations of the Commission
thereunder (the “1934 Act
Regulations”), and, at each time the Registration Statement became
effective, the Registration Statement complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and did not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and any further documents deemed to be or, in the case of a Report on Form 6-K,
designated as being incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus after the date of this Agreement but prior
to the termination of the offering of Securities, will, when they are filed with
or furnished to the Commission, comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and, when read
together with the other information included or incorporated in the Registration
Statement, the Disclosure Package and the Prospectus, will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, provided that the
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representations
and warranties in this subsection shall not apply to the Form T-1 of the
Trustee.
(e) At
the time the ADR Registration Statement became effective, the ADR Registration
Statement and the ADR Prospectus complied in all material respects with the
provisions of the 1933 Act and the 1933 Act Regulations and the ADR Registration
Statement did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The ADR Prospectus, as amended or
supplemented, if applicable, will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they will be made, not
misleading.
(f) The
audited consolidated financial statements of the Company for the years ended
December 31, ____, and December 31, ____, were prepared in accordance with
International Financial Reporting Standards and give a true and fair view (in
conjunction with the notes thereto) of the state of the Company and its
subsidiaries’ affairs as at such dates and of its profit and cash flows for the
years then ended[, and the unaudited consolidated financial statements of the
Company for the six month periods ended June 30, ____ and June 30, ____ have
been stated on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration
Statement.]
(g) The
unaudited pro forma condensed combined financial information (the “Pro Forma Financial
Information”), comprising a balance sheet as at _____ and income
statements for the year ended _____ [and for the six months ended _____] and the
related notes included in the Prospectus, has been properly compiled on the
basis of the assumptions stated therein and the assumptions used in the
preparation of the Pro Forma Financial Information are reasonable.
(h) (i)
Since the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Prospectus, except as otherwise set
forth or contemplated therein, there has been no material adverse change in the
condition, financial or otherwise, or in the results of operations of the
Company and its subsidiaries, together considered as one
enterprise.
(i) The
Company (A) has been duly incorporated in, and is validly registered under the
laws of, Scotland; (B) has the requisite corporate power and authority to
execute and deliver this Agreement and the Pricing Agreement and had the
requisite corporate power and authority to execute and deliver the ADR Deposit
Agreement, to issue the Securities, and, in each case, to perform its
obligations hereunder and thereunder; (C) has the corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Disclosure Package and the Prospectus; (D) has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
or is subject to no material liability or disability by reason of the failure to
be so qualified in
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any such
jurisdiction; and (E) has duly authorized, executed and delivered this Agreement
and the Pricing Agreement and this Agreement and the Pricing Agreement
constitute the valid and legally binding agreement of the Company enforceable in
accordance with its terms, except as rights to indemnity or contribution may be
limited by applicable law and subject as to enforcement to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors’ rights generally and to general equity
principles.
(j) The
ADR Deposit Agreement has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the ADR
Depositary, constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors’ rights generally and to general equity
principles.
(k) The
Royal Bank of Scotland plc (the “Bank”) has been duly
incorporated in, and is validly registered under the laws of, Scotland, has
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Disclosure Package and the Prospectus;
and all of the issued and outstanding share capital or capital stock of the Bank
is owned, directly or indirectly, by the Company. National Westminster Bank Plc
(“NatWest”) has been
duly incorporated under the laws of England, has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Disclosure Package and the Prospectus; and all of the issued
and outstanding ordinary share capital of NatWest is owned, directly or
indirectly, by the Company. ABN AMRO Holding N.V. (“ABN AMRO”) has been duly
incorporated under the laws of the Netherlands, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Disclosure Package and the Prospectus.
(l) The
Series [ ] Preference Shares are to be represented by the ADSs and, when
allotted, issued and paid for in accordance with this Agreement and the Pricing
Agreement, the Series [ ] Preference Shares (a) will be validly issued in
accordance with the requirements of the Companies Act of 1985 of Great Britain
and will be fully paid and not subject to further call or contribution and (b)
no holder thereof will be subject to any personal liability to the Company or to
creditors of the Company solely by reason of being such a holder.
(m) Each
of the Series [ ] Preference Shares and the ADRs will conform in all material
respects to the descriptions thereof contained in the Disclosure Package and the
Prospectus.
(n) All
consents, approvals, authorizations, orders and decrees of any court or
governmental agency or body of the United States, the United Kingdom or the
Netherlands, having jurisdiction over the Company required for the consummation
by the Company of the transactions contemplated by this Agreement or the Pricing
Agreement or to permit the Company to effect dividend payments in U.S. dollars
on the Securities have been obtained and are in full force and effect, except as
may be required by United States state securities laws (the “Blue
Sky laws”).
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(o) The
execution, delivery and performance of this Agreement and the Pricing Agreement,
the allotment, issuance, authentication, sale and delivery of the Securities and
the compliance by the Company with the respective terms thereof, and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in a breach under any agreement or instrument to which
the Company is a party or by which the Company is bound that is material to the
Company and its subsidiaries, taken as a whole, nor will such action result in
any violation of the provisions of the Memorandum and Articles of Association of
the Company or any statute or any order, filing, rule or regulation of any
United States, English, Scottish or Dutch court or governmental agency or
regulatory body having jurisdiction over the Company.
(p) The
Company is not, and after giving effect to the offer and sales of the Securities
and application of the proceeds thereof as described in the Prospectus and the
Disclosure Package, will not be, required to register as an “investment
company,” as defined in the Investment Company Act of 1940, as
amended.
(q) There
is no action, suit, proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company, threatened against or affecting the Company or
any subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein).
(r) (A)
(i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934
Act or form of prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c)
under the ▇▇▇▇ ▇▇▇) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the 1933 Act, the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the 1933 Act; and (B) at the earliest time
after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the ▇▇▇▇ ▇▇▇) of the Securities, the Company was not an
“ineligible issuer” as defined in Rule 405 under the 1933 Act.
(s) Deloitte
LLP, who have certified certain financial statements of the Company and its
subsidiaries, and have audited the Company’s internal control over financial
reporting and management’s assessment thereof, are independent public
accountants as required by the 1933 Act and the rules and regulations of the
Commission thereunder.
(t) Neither
any Issuer Free Writing Prospectus nor the Term Sheet includes any information
that conflicts with the information contained in the Registration Statement, the
Disclosure Package and the Prospectus, including any document
7
incorporated
therein or any prospectus supplement deemed to be a part thereof that has not
been superseded or modified; provided, however, that the
representations and warranties in this subsection shall not apply to statements
in, or omissions from, any Issuer Free Writing Prospectus or the Term Sheet made
in reliance upon, and in conformity with, information furnished to the Company
in writing by any Underwriter through the Representatives expressly for use in
the Issuer Free Writing Prospectus.
(u) None
of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently included on the U.S. Treasury Department’s List of
Specially Designated Nationals or otherwise subject to any U.S. sanctions
administered by the U.S. Treasury Department’s Office of Foreign Assets Control
(“OFAC”); and the
capital raised by the issuance and sale of the Securities will not directly or
indirectly be lent, contributed or otherwise made available to:
(i) any
subsidiary, joint venture partner or other entity under the control of the
Company; or
(ii) to
the knowledge of the Company, any other person or entity,
in each
case for the purpose of financing the activities of any person, entity, or
government currently subject to any U.S. sanctions administered by
OFAC.
3. Upon
the execution of the Pricing Agreement applicable to any Securities and
authorization by the Representatives of the release of such Securities, the
several Underwriters propose to offer such Securities for sale upon the terms
and conditions set forth in the Prospectus (as amended or
supplemented).
4. The
Securities to be purchased by each Underwriter and/or by purchasers procured by
such Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, and registered in such names as the
Representatives may request upon at least forty-eight hours’ prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriters (which may include any
direction by the Underwriters to deposit the Series [ ] Preference Shares in
global form with the ADR Depositary), against payment by the Underwriters, or by
the Representatives on behalf of the Underwriters, of the purchase price
therefor by wire transfer of immediately available funds to an account
designated by the Company as specified in the 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 Securities
that:
(a) The
Company will notify the Representatives immediately on becoming aware of (i) any
request by the Commission for any amendment to the Registration Statement or the
ADR Registration Statement or any amendment or supplement to the Prospectus or
ADR Prospectus or for additional information relating to the Registration
Statement, the ADR Registration Statement or the offering of the Securities, and
(ii) the
8
issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the ADR Registration Statement or any order preventing
or suspending the use of any Preliminary Prospectus or other Prospectus in
respect of the Securities, or the issuance by the Commission of any notice of
objection to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any such stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) If
at any time prior to the filing of a final prospectus pursuant to Rule 424(b) of
the 1933 Act Regulations, any event occurs as a result of which the Disclosure
Package would then 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, the
Company will (i) promptly notify the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented; (ii) amend or
supplement the Disclosure Package to correct such statement or omission; and
(iii) supply any such amendment or supplement to the Underwriters in such
quantities as they may reasonably request.
(c) The
Company will, for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 or
Rule 173(a) of the 1933 Act Regulations), file promptly all reports required to
be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or
15(d) of the 1934 Act and will give the Representatives notice of its intention
to file any amendment to the Registration Statement or any amendment to the ADR
Registration Statement or any amendment or supplement to the Disclosure Package,
the Prospectus or ADR Prospectus (including any prospectus which the Company
proposes for use by the Underwriters in connection with the offering of the
Securities which differs from the Prospectus, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations) and will furnish the Representatives with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus without prior consultation with the
Representatives.
(d) The
Company will prepare the Term Sheet, containing solely a description of the
final terms of the Securities and the offering thereof, in a form approved by
the Representatives and will file the Term Sheet not later than the time
required by Rule 433(d) of the 1933 Act Regulations.
(e) The
Company will prepare the Prospectus in relation to the Securities and file such
Prospectus pursuant to Rule 424(b) of the 1933 Act Regulations not later than
the time required by Rule 424(b) of the 1933 Act Regulations following the
execution and delivery of the Pricing Agreement relating to the
Securities.
9
(f) The
Company will deliver to each Representative a conformed copy of the Registration
Statement and the ADR Registration Statement in each case, as originally filed,
and of each amendment thereto (including exhibits and documents filed therewith
or incorporated by reference, as the case may be, into the Registration
Statement).
(g) The
Company will furnish the Underwriters with copies of the Preliminary Prospectus,
the Prospectus and each Issuer Free Writing Prospectus (including, in each case,
any supplement thereto) in such quantities as the Representatives may from time
to time reasonably request, and will use all reasonable efforts to make the
initial delivery of the Prospectus (or in lieu thereof, the notice referred to
in Rule 173(a) under the ▇▇▇▇ ▇▇▇) by no later than 9:00 a.m. on the second
business day prior to the Time of Delivery and, if the delivery of a Prospectus
is required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering and sale of the
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 (or in lieu thereof, the notice
referred to in Rule 173(a) under the ▇▇▇▇ ▇▇▇) is delivered, not misleading, or,
if for any reason it shall be necessary during such period to amend or
supplement the Prospectus, or to file under the 1934 Act any document
incorporated by reference in the Prospectus, in order to comply with the 1933
Act, notify the Underwriters and upon the Representatives’ request prepare and
furnish without charge to each Underwriter as many copies as the Representatives
may from time to time reasonably request of an amended Prospectus or supplement
to the Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a Prospectus (or
in lieu thereof, the notice referred to in Rule 173(a) under the ▇▇▇▇ ▇▇▇) in
connection with sales of the Securities (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 or 173(a) of the 1933 Act
Regulations) at any time nine months or more after the time of issue of the
Prospectus, upon the Representatives’ request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as the
Representatives may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the ▇▇▇▇ ▇▇▇.
(h) The
Company agrees that, unless it has obtained or will obtain (as the case may be)
the prior written consent of the Representatives, and each Underwriter,
severally and not jointly, agrees with the Company that, unless it has obtained
or will obtain (as the case may be) the prior written consent of the Company, it
has not made and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or Free Writing Prospectus required
to be filed by the Company with the Commission or retained by the Company under
Rule 433 of the 1933 Act Regulations, other than the information contained in
the Term Sheet provided, however, that the
prior written consent of the parties hereto shall be deemed to have been given
in respect of the Free Writing Prospectuses included in Annex II hereto. Any
such free writing prospectus consented to by the parties is hereinafter referred
to as a “Permitted Free Writing
Prospectus.” The Company agrees that (i) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (ii)
10
it has
complied and will comply, as the case may be, with the requirements of Rules 164
and 433 of the 1933 Act Regulations applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.
(i) The
Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Disclosure Package or the Prospectus or would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the
Representative and, if requested by the Representatives, will prepare and
furnish without charge to each Underwriter an Issuer Free Writing Prospectus or
other document which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through the Representatives expressly for use
therein.
(j) The
Company will endeavour to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and will maintain such qualifications for as long as the
Representatives shall reasonably request; provided that in
connection with any such qualification the Company shall not be required to
qualify as a foreign corporation in any such jurisdiction or to file a general
consent to service of process in any such jurisdiction.
(k) The
Company will 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, an earnings statement of the Company and its
subsidiaries on a consolidated basis (which need not be audited) complying with
Section 11(a) of the 1933 Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158 of the 1933 Act
Regulations).
(l) During
the period beginning from the date of the Pricing Agreement for such Securities
and continuing to and including the Time of Delivery, the Company will not
offer, sell, contract to sell or otherwise dispose of any securities of the
Company which are substantially similar to such Securities (other than (i) the
Securities, (ii) securities previously agreed to be sold by the Company and the
Group and (iii) commercial paper issued in the ordinary course of business),
except as otherwise may be provided in this Agreement, without the prior written
consent of the Representatives, which consent shall not be unreasonably
withheld.
(m) The
Company will cooperate with the Underwriters and use its best efforts to permit
the ADRs to be eligible for clearance and settlement through the facilities of
The Depository Trust Company (“DTC”).
11
(n) Prior
to the issuance of the Securities, the Company will have obtained all consents,
approvals, authorizations, orders, registrations, qualifications and decrees of
any court or governmental agency or body of the United States and the United
Kingdom necessary or required for the valid issuance of the Securities and to
permit the Company to make dividend payments on the Securities in U.S.
dollars.
(o) [In
the event the Company elects to substitute the Series [ ] Preference Shares in
accordance with the terms of issue thereof, the Company shall have in place at
the time of substitution the necessary corporate authorizations necessary to
effect a substitution. The Company shall ensure that any Substituted Securities
so issued upon substitution will be validly issued in accordance with the
requirements of the relevant laws and regulations governing the issuance of such
Substituted Securities in the jurisdiction in which the issuer of such
Substituted Securities is organized.]
6. The
Company will pay all expenses incident to the performance of its obligations
under this Agreement, any Pricing Agreement and the Securities, including (i)
the printing and filing of the Registration Statement as originally filed and of
each amendment thereto, the ADR Registration Statement, any Issuer Free Writing
Prospectus, the Prospectus and any related preliminary prospectus (or any
amendments or supplements thereto), and the cost of furnishing copies thereof to
the Underwriters; (ii) the printing, if any, of this Agreement, the Pricing
Agreement, the ADR Deposit Agreement, the ADRs and the Blue Sky Survey; (iii)
the printing or reproduction, preparation, issuance and delivery of the
certificates, if any, for the Securities to (or at the direction of) the
Underwriters or the ADR Depositary, including any stock transfer or other taxes
or duties payable upon the delivery of the Series [ ] Preference Shares to the
ADR Depositary or the sale of the Securities to the Underwriters; (iv) the fees
and disbursements of the Company’s counsel and accountants; (v) the
qualification of the Securities under the applicable securities laws in
accordance with the provisions of Section 5(i) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith in an aggregate amount not in excess of $5,000 with respect to a
particular issue of the Securities and in connection with the preparation of any
Blue Sky Survey and any Legal Investment Survey; (vi) the delivery to the
Underwriters of copies of such Blue Sky Survey, if any; (vii) any costs, fees
and charges of the ADR Depositary in connection with the issuance and delivery
of Series [ ] Preference Shares to the ADR Depositary and ADSs to the registered
holders thereof and all other costs, fees and charges of the ADR Depositary and
any transfer agent or registrar; (viii) all expenses and listing fees in
connection with the listing of the Securities, if any, and the clearance and
settlement of the Securities through the facilities of DTC; (ix) any fees
charged by securities rating services for rating the Securities; (x) the fees
and expenses incurred in connection with the filing of any materials with the
Financial Industry Regulatory Authority (“FINRA”), if any; (xi) any fees
associated with a Bloomberg roadshow presentation; (xii) any United Kingdom
stamp duty, stamp duty reserve tax or similar tax or duty imposed by the United
Kingdom or any political subdivision thereof upon the original issuance by, or
on behalf of, the Company of the Securities, the initial delivery of the
Securities, the deposit of Series [ ] Preference Shares under the ADR Deposit
Agreement by the Company, the purchase by the Underwriters of the Securities,
the sale and delivery of the Securities by the Underwriters to the initial
purchasers thereof, and the execution and delivery of this Agreement, the
Pricing Agreement and the ADR Deposit Agreement; and (xiii) any value added
taxes payable in the United Kingdom in respect of any of the above
expenses.
12
If this
Agreement is terminated by the Representatives in accordance with the provisions
of Section 7 or Section 11(a)(i), (v) and (ix) hereof, the Company shall
reimburse the Underwriters for their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters, except that
in the case of a termination in accordance with Section 11(a)(i), (v) and (ix)
hereof, such reimbursement shall include only any expenses actually incurred
(not to exceed $[ ]).
7. The
obligations of the Underwriters of any Securities under the Pricing Agreement
relating to such Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties of the
Company in or incorporated by reference in the Pricing Agreement relating to
such Securities are, at and as of the Time of Delivery for such Securities, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The
Registration Statement is effective and at the Time of Delivery no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission and no notice of objection of the Commission to the use of the
Registration Statements or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the 1933 Act shall have been received. The Prospectus shall have
been transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the time period prescribed by Rule 424(b) of the
1933 Act Regulations; the Term Sheet and any other material required to be filed
by the Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have
been transmitted to the Commission for filing pursuant to Rule 433(d) of the
1933 Act Regulations; and, in each case, prior to the Time of Delivery the
Company shall have provided evidence satisfactory to the Representatives of such
timely filing and no stop order suspending or preventing the use of the
Prospectus or any Issuer Free Writing Prospectus shall have been initiated or
threatened by the Commission and all requests for additional information on the
part of the Commission have been complied with.
(b) At
the Time of Delivery, the Representatives shall have received:
(i) The
opinion and 10b-5 letter, each dated as of the Time of Delivery, of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company, with respect to the matters
set forth in Annex III hereto in form and substance reasonably satisfactory to
the representatives.
(ii) The
opinion, dated as of the Time of Delivery, of Dundas & ▇▇▇▇▇▇ ▇▇ LLP,
Scottish solicitors to the Company, with respect to the matters set forth in
Annex IV hereto in form and substance reasonably satisfactory to the
representatives.
(iii) The
opinion, dated as of the Time of Delivery, of Linklaters LLP, English solicitors
to the Company, with respect to the matters set forth in Annex V hereto in form
and substance reasonably satisfactory to the representatives.
13
(iv) The
opinion, dated as of the Time of Delivery, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
counsel to the ADR Depositary with respect to the matters set forth in Annex VI
hereto in form and substance reasonably satisfactory to the
representatives.
(v) The
opinion and 10b-5 letter, each dated as of the Time of Delivery, of Shearman
& Sterling LLP, counsel for the Underwriters, with respect to the matters
set forth in Annex VII in form and substance reasonably satisfactory to the
representatives.
(c) The
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement, the Disclosure Package and the
Prospectus (the “Independent
Accountants”) shall have furnished to the Representatives a letter
delivered at a time prior to the execution of the Pricing Agreement and dated
the date of delivery thereof, with regard to matters customarily covered by
accountants’ “comfort letters” and otherwise in form and substance satisfactory
to the Representatives.
(d) The
Independent Accountants shall have furnished to the Representatives a letter,
dated at the Time of Delivery, to the effect that it reaffirms the statements
made in the letter furnished pursuant to Section 7(c), except that the specified
“cut-off” date referred to therein shall be a date not more than three business
days prior to the Time of Delivery.
(e) If
required pursuant to the Pricing Agreement, the Securities shall have been duly
authorized for listing by the New York Stock Exchange, Inc.
(f) At
the Time of Delivery (1) there shall not have been, since the date of the
Pricing Agreement or since the respective dates as of which information is given
in the Registration Statement, the Disclosure Package and the Prospectus, except
as otherwise set forth or contemplated therein, any material adverse change in
the condition, financial or otherwise, or in the results of operations of the
Company and its subsidiaries considered as one enterprise, and (2) the
Representatives shall have received a certificate of the Company executed on its
behalf by an officer of the Company, dated as of the Time of Delivery, to the
effect that (i) the representations and warranties in Section 2 hereof are true
and correct in all material respects as though expressly made at and as of the
Time of Delivery; (ii) the Company has complied in all material respects with
all agreements hereunder and satisfied in all material respects all conditions
on its part to be performed or satisfied hereunder at or prior to the Time of
Delivery; and (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of the Company, no
proceedings for that purpose have been initiated or threatened by the
Commission.
(g) The
Company shall have furnished to the Underwriters a certificate, dated the Time
of Delivery, of a deputy secretary of the Company stating that to the best
knowledge and belief of the deputy secretary signing such certificate after
reasonable inquiry, the issue and sale of the Securities in the manner
contemplated in the Disclosure
14
Package
and Prospectus do not and will not result in a breach, default or acceleration
of any payment or amount under any contract, agreement or undertaking to which
the Company or any of its subsidiaries is a party (or by which any such entity
is bound), which breach, default or acceleration would have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(h) If
an affiliate (as defined in applicable NASD rules) of the Company is
participating in the offering of the Securities, FINRA shall not have raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
If any
condition specified in this Section 7 shall not have been fulfilled when and as
required to be fulfilled and not otherwise waived by the Underwriters, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to the Time of Delivery, and such termination shall be
without liability of any party to any other party except as provided in Section
6 hereof. Notwithstanding any such termination, the provisions of Sections 6, 8,
10 and 14 herein shall remain in effect.
8.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, each of the
Underwriters’ affiliates, directors, officers and employees, and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
including the information deemed to be part of the Registration Statement
pursuant to Rule 430A(b) of the 1933 Act Regulations or, if applicable, the ADR
Registration Statement, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus, the Preliminary
Prospectus, the Term Sheet, any Issuer Free Writing Prospectus or the ADR
Prospectus or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and
(iii) against
any and all expense whatsoever, as reasonably incurred (including, subject to
Section 8(c) hereof, the fees and disbursements of counsel chosen by the
Representatives), in investigating, preparing or defending against
15
any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under clause (i) or (ii)
above;
provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), the ADR Registration Statement (or any amendment thereto),
the Prospectus, the Preliminary Prospectus, the Term Sheet, any Issuer Free
Writing Prospectus or the ADR Prospectus.
(b) Each
Underwriter severally agrees to indemnify and hold harmless each of the Company,
its directors, each of the officers of the Company who signed the Registration
Statement or the ADR Registration Statement, the Company’s authorized
representative in the United States and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section 8 as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
documents referred to in subsection (a) of this Section 8 in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use in such
documents.
(c) Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. Any indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. In the case of parties
indemnified pursuant to Section 8(a) above, counsel to the indemnified parties
shall be selected by the Underwriters, and, in the case of parties indemnified
pursuant to Section 8(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an
16
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 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Securities on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall, if permitted by
applicable law, contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts, concessions
and commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Securities in this
17
subsection
(d) to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The
obligations of the Company under this Section 8 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of Section 15 of the
▇▇▇▇ ▇▇▇.
9. If
one or more of the Underwriters shall fail at the Time of Delivery to purchase
the Securities which it is or they are obligated to purchase under this
Agreement and the Pricing Agreement (the “Defaulted Securities”), the
Representatives shall have the right, within 48 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase, or procure purchasers for, all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; provided, however, that if the Representatives shall
not have completed such arrangements within such 48-hour period,
then:
(a) if
the number of Defaulted Securities does not exceed 10% of the Securities which
the Underwriters are obligated to purchase at the Time of Delivery, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations under
the Pricing Agreement relating to such Securities bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if
the number of Defaulted Securities exceeds 10% of the Securities which the
Underwriters are obligated to purchase or procure purchasers for at the Time of
Delivery, the Pricing Agreement relating to such Securities shall terminate
without liability on the part of any non-defaulting Underwriter.
No action
taken pursuant to this Section 9 shall relieve any defaulting Underwriter from
liability in respect of its default.
In the
event of any such default which does not result in a termination of the relevant
Pricing Agreement, either the Representatives or the Company shall have the
right to postpone the Time of Delivery for a period not exceeding seven days in
order to effect any required changes in the Registration Statement, the ADR
Registration Statement or Prospectus or in any other documents or
arrangements.
10. All
representations, warranties and agreements contained in this Agreement and any
Pricing Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person, or by or on
18
behalf of
the Company, and shall survive delivery of the Securities to the Underwriters
pursuant to this Agreement.
11. (a) The
Representatives may terminate this Agreement, immediately upon notice to the
Company, at any time prior to the Time of Delivery (i) if there has been, since
the date of the Pricing Agreement or the respective dates as of which
information is given in the Registration Statement, the ADR Registration
Statement, the Disclosure Package and the Prospectus, except as otherwise set
forth or contemplated therein, any material adverse change in the condition,
financial or otherwise, or in the results of operations, of the Company and its
subsidiaries considered as one enterprise, or (ii) if there has occurred any
outbreak or escalation of hostilities 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 (iii) the occurrence of another calamity or crisis
or any change in financial, political or economic conditions or currency
exchange rates or controls in the United States, the United Kingdom or
elsewhere, if the effect of any such event specified in clause (ii) and (iii) in
the judgment of the Representatives (after consultation with the Company if
practicable) makes it impracticable or inadvisable to market the Securities or
enforce contracts for the sale of the Securities in the manner contemplated in
the Prospectus, or (iv) if there has occurred a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
London Stock Exchange or any other stock exchange on which the Company’s
securities are listed, or (v) if there has occurred a suspension or material
limitation in trading the Company’s securities on the New York Stock Exchange or
the London Stock Exchange, or (vi) if there has occurred a material adverse
change in the financial markets in the United States or in the international
financial markets, or (vii) if a banking moratorium on commercial banking
activities has been declared by the relevant authorities in New York or London,
or a material disruption in commercial banking or securities settlement or
clearance services in the United States or the United Kingdom has occurred, or
(viii) if there has occurred a change or development involving a prospective
change in the United States or the United Kingdom taxation which has, or will
have, a material adverse effect on the Company or the Securities or the transfer
thereof, or (ix) if there is any lowering of the rating of any of the Company’s
debt securities, preference shares, ADSs or ADRs, or a public announcement that
such rating is under surveillance or review, with possible negative implication,
in each case, by ▇▇▇▇▇’▇ Investors Service, Inc., Standard and Poor’s Rating
Services, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or Fitch,
Inc.
(b) If
this Agreement is terminated pursuant to Sections 7, 9 or 11 hereof, such
termination shall be without liability of any party to any other party except as
provided in Section 6 or Section 9 hereof. Notwithstanding any such termination,
the provisions of Sections 6, 8, 10 and 14 shall remain in effect.
12. In
all dealings hereunder, the Representatives of the Underwriters of the
Securities shall act on behalf of each of such Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by such Representatives
jointly or by such of the Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the address
19
of the
Representatives as set forth in the Pricing Agreement; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Company Secretary; provided, however, that any notice to an Underwriter pursuant
to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters’
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This
Agreement and any Pricing Agreement shall each inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement or any Pricing Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and the
controlling persons and officers, directors and authorized representative of the
Company referred to in Section 8 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any Pricing Agreement or any provision herein or therein contained. This
Agreement and any Pricing Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Company and their respective successors, and said
controlling persons and officers, directors and authorized representative of the
Company and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
14. (a) The
Company irrevocably consents and agrees, for the benefit of the Underwriters,
that any legal action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter arising out of or in connection
with this Agreement or the Pricing Agreement may be brought in the courts of the
State of New York or the courts of the United States of America located in the
Borough of Manhattan, The City of New York and hereby irrevocably consents and
submits to the non-exclusive jurisdiction of each such court in personam, generally
and unconditionally with respect to any action, suit or proceeding for itself
and in respect of its properties, assets and revenues.
(b) The
Company hereby irrevocably designates, appoints, and empowers ▇▇▇▇ ▇▇▇▇▇▇▇,
Chief Financial Officer, Citizens Financial Group, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, as its designee, appointee and agent to
take process, receive and forward process or to be served with process for and
on its behalf of any and all legal process, summons, notices and documents which
may be served in any such action, suit or proceeding brought in any such United
States or State court which may be made on such designee, appointee and agent in
accordance with legal procedures prescribed for such courts. If for any reason
such designee, appointee and agent hereunder shall cease to be available to act
as such, the Company agrees to designate a new designee, appointee and agent in
The City of New York on the terms and for the purposes of this Section 14
satisfactory to the Representatives. The Company further hereby irrevocably
consents and agrees to the service of any and all legal process, summons,
notices and documents out of any of the aforesaid courts in any such action,
suit or proceeding by serving a copy thereof upon the relevant agent for service
of
20
process
referred to in this Section 14 (whether or not the appointment of such agent
shall for any reason prove to be ineffective or such agent shall accept or
acknowledge such service) or by mailing copies thereof by registered or
certified air mail, first class, postage prepaid, to each of them at their
respective addresses specified in or designated pursuant to this Agreement. The
Company agrees that the failure of any such designee, appointee and agent to
give any notice of such service to it shall not impair or affect in any way the
validity of such service or any judgment rendered in any action or proceeding
based thereon. Nothing herein shall in any way be deemed to limit the ability of
any Underwriter to serve any such legal process, summons, notices and documents
in any other manner permitted by applicable law or to obtain jurisdiction over
the undersigned or bring actions, suits or proceedings against the undersigned
in any jurisdictions, and in any manner, as may be permitted by applicable law.
The Company hereby irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions, suits or proceedings arising out of or
in connection with this Agreement or the Pricing Agreement brought in the United
States federal courts or the courts of the State of New York located in the
Borough of Manhattan, The City of New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
15. Each
Underwriter severally represents and agrees that: (a) 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 Financial Services and Markets ▇▇▇ ▇▇▇▇
(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 would not, if the Company was not an authorized
person, apply to the Company; and (b) it has complied and will comply with all
applicable provisions of the FSMA (and all rules and regulations made pursuant
to the FSMA) with respect to anything done by it in relation to the Securities
in, from or otherwise involving the United Kingdom.
16. In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
Underwriter severally represents and agrees that with effect from and including
the date on which the Prospectus Directive is implemented in that Relevant
Member State (the “Relevant
Implementation Date”), it has not made and will not make an offer of
Securities to the public in that Relevant Member State prior to the publication
of a prospectus in relation to the Securities which has been approved by the
competent authority in that Relevant Member State or where appropriate, approved
in another Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus Directive, except
that it may, with effect from and including the Relevant Implementation Date,
make an offer of Securities to the public in that Relevant Member State: (a) to
legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities; (b) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a total
balance sheet of more than EUR 43,000,000; and (3) an annual net turnover of
more than EUR 50,000,000, as shown in its last annual or consolidated accounts;
(c) to fewer than 100 natural or legal persons
21
(other
than qualified investors as defined in the Prospectus Directive) subject to
obtaining the prior consent of the Underwriters; or (d) in any other
circumstances falling under Article 3(2) of the Prospectus Directive, provided
that no such offer of Securities requires the publication by the Company of a
prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes
of this Section 16 of this Agreement, the expression “an offer of Securities to
the public” in relation to any Securities in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Securities to be offered so as to enable an investor
to decide to purchase or subscribe the Securities, as the same may be varied in
that Member State by any measure implementing the Prospectus Directive in that
Member State and the expression “Prospectus Directive” means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
17. The
Company hereby acknowledges that (a) the purchase, or procurement of purchasers
of, and sale of the Securities pursuant to this Agreement is an arm’s-length
commercial transaction between the Company, on the one hand, and the
Underwriters and any affiliate through which any Underwriter may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or
fiduciary of the Company and (c) the Company’s engagement of the Underwriters in
connection with the
offering and the process leading up to the offering is as independent
contractors and not in any other capacity. Furthermore, the Company agrees that
it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The
Company agrees that it will not claim that the Underwriters have rendered
advisory services of any nature or respect, or owe an agency, fiduciary or
similar duty to the Company, in connection with such transaction or the process
leading thereto.
18. 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.
19. This
Agreement and each Pricing Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to conflict
of laws provisions thereof. Specified times of day refer to New York City
time.
20. This
Agreement may be executed in one or more counterparts and, when a counterpart
has been executed by each party, all such counterparts taken together shall
constitute one and the same agreement.
22
If the
foregoing is in accordance with your understanding, please sign and return to
us
[ ]
counterparts hereof.
|
Very
truly yours,
|
|||
|
By:
|
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|
|
|||
|
Name:
|
|||
|
Title:
|
|||
[The rest
of this page is intentionally left blank.]
23
Accepted
as of the date hereof:
[NAMES OF REPRESENTATIVES]
|
By:
|
||
|
|
||
|
Name:
|
||
|
Title:
|
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For
themselves and as representatives of the several Underwriters
24
ANNEX
I
Pricing
Agreement
[Names of
Representatives]
[As
Representatives of the several
Underwriters
named in Schedule I hereto,]
___________
__, ____
Ladies
and Gentlemen:
The Royal
Bank of Scotland Group plc, a public limited company incorporated under the laws
of, and registered in, Scotland (the “Company”), proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated ___________ __, ____ (the “Underwriting Agreement”),
between the Company on the one hand and the several Underwriters on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
“Underwriters”), or to
purchasers procured by them, the securities specified in Schedule II hereto (the
“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 Disclosure Package and/or the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Disclosure Package and/or the Prospectus (each as therein
defined), as the case may be, and also a representation and warranty as of the
date of this Pricing Agreement in relation to the Disclosure Package and/or the
Prospectus (as amended or supplemented), as the case may be, relating to the
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Securities
pursuant to Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An
amendment to the Registration Statement, or a supplement to the Prospectus, as
the case may be, relating to the Securities, in the form heretofore delivered to
you is now proposed to be filed with the Commission.
Subject to the terms and
conditions set forth herein (including Schedules I and II hereto) and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, or to purchasers procured by them,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, or to procure purchasers 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 number of Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
25
If the
foregoing is in accordance with your understanding, please sign and return to us
[ ] counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
[The rest
of this page is intentionally left blank.]
26
[The rest
of this page is intentionally left blank.]
27
Accepted
as of the date hereof:
[NAMES OF REPRESENTATIVES]
|
By:
|
||
|
|
||
|
Name:
|
||
|
Title:
|
||
For
themselves and as representatives of the several Underwriters
28
SCHEDULE
I
|
Number
of
Securities
to be Purchased
|
|||
|
[Names of
Representatives]
|
[ ]
|
||
|
[Names of other
Underwriters]
|
[ ]
|
||
|
Total:
|
[_____]
|
29
SCHEDULE
II
Capitalized
terms used herein, unless otherwise stated, shall have the meaning set forth in
the Underwriting Agreement.
Title
of Securities:
Category
II Non-cumulative Dollar Preference Shares, Series [ ], to be represented by
American Depositary Shares, Series [ ], to be evidenced by American Depositary
Receipts, with one American Depositary Share representing one Non-cumulative
Dollar Preference Share
Number of
Shares:
[ ]
Price
to Public:
Underwriting
Commission:
Form
of Securities:
American
Depositary Receipts evidencing American Depositary Shares, Series [ ]
representing Non-cumulative Dollar Preference Shares, Series [ ], to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery at the office of the Representatives.
Listing:
Specified
Funds for Payment of Purchase Price:
Wire
transfer of immediately available funds
Account
for Payment of Purchase Price:
Time
of Delivery:
9:30 a.m.
(New York time) on __________ __, ____
Redemption
Provisions:
Initial
Dividend Payment Date:
__________
__, ____
30
Dividends:
[$[ ]
annually per Series [ ] Preference Share, payable quarterly on each March 31,
June 30, September 30 and December 31.]
Votes
per Preference Share:
One in
certain circumstances only
Closing
Location:
Offices
of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Names
and Addresses of Representatives:
Designated
Representatives:
Address
for Notices, etc.:
Other
Terms:
The
Securities will have additional terms as more fully described in the Disclosure
Package and the Prospectus.
31
ANNEX
II
Issuer Free
Writing Prospectuses Included in Disclosure
Package
32
ANNEX
III
FORM
OF OPINION OF
▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. COUNSEL
FOR
THE COMPANY
[To be
included as a Statement of Fact before the opinion: The Registration
Statement became effective under the 1933 Act and the Indenture qualified under
the Trust Indenture Act upon the filing of the Registration Statement with the
Commission on [date of
filing] pursuant to Rule 461(e)].
Based
upon the foregoing, we are of the opinion that:
1. Assuming
that the Underwriting Agreement (including the Pricing Agreement) has been duly
authorized, executed and delivered by the Company insofar as Scots law is
concerned, the Underwriting Agreement (including the Pricing Agreement) has been
duly executed and delivered by the Company.
2. Assuming
that the ADR Deposit Agreement has been duly authorized, executed and delivered
by the Company insofar as Scots law is concerned, the ADR Deposit Agreement has
been duly executed and delivered by the Company, and the ADR Deposit Agreement
is a valid and binding agreement of the Company, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, concepts of reasonableness and equity
principles of general applicability.
3. Upon
due issuance by the ADR Depositary of the ADRs evidencing ADSs being delivered
on the date hereof against the deposit of the Series [ ] Preference Shares in
respect thereof in accordance with the provisions of the ADR Deposit Agreement
and due execution of such ADRs by one of the ADR Depositary’s authorized
officers, such ADRs will be duly and validly issued and the person in whose
names such ADRs are registered will be entitled to the rights specified therein
and in the ADR Deposit Agreement.
4. Assuming
that the Underwriting Agreement (including the Pricing Agreement) has been duly
authorized, executed and delivered by the Company insofar as Scots law is
concerned, under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 14 of the Underwriting
Agreement validly and irrevocably submitted to the personal jurisdiction of any
New York state or U.S. federal court located in the State of New York, Borough
of Manhattan in the City of New York (each a “New York Court”), in any
action arising out of or relating to the Underwriting Agreement and the Pricing
Agreement or the transactions contemplated thereby, has validly and irrevocably
waived to the fullest extent it may effectively do so any objection to the venue
of a proceeding in any such New York Court, and has validly and irrevocably
appointed ▇▇▇▇ ▇▇▇▇▇▇▇ as its initial authorized agent for the purposes
described in Section 14 of the Underwriting Agreement; and service of process
effected on such agent in the manner set forth in Section 14 of the Underwriting
Agreement will be effective service of process in any such action upon the
Company.
33
5. The
Company is not and, after giving effect to the offering and sale of the Series [
] Preference Shares and the application of the proceeds thereof as described in
the Prospectus will not be, required to register as an “investment company”, as
such term is defined in the Investment Company Act of 1940, as
amended.
6. Except
as disclosed in the Prospectus, the execution and delivery by the Company of,
and the performance by the Company of its obligations under, the Underwriting
Agreement (including the Pricing Agreement) will not contravene any provision of
the laws of the State of New York or any federal law of the United States of
America that in our experience is normally applicable to general business
corporations in relation to transactions of the type contemplated thereby,
provided that we express no opinion as to federal or state securities
laws.
7. No
consent, approval, authorization or order of, or qualification with, any state
governmental body or agency under the laws of the State of New York or any
federal law of the United States of America that in our experience is normally
applicable to general business corporations in relation to transactions of the
type contemplated by the Underwriting Agreement (including the Pricing
Agreement), is required for the execution, delivery and performance by the
Company of its obligations under the Underwriting Agreement (including the
Pricing Agreement), except such as may be required under state securities or
Blue Sky laws as to which we express no opinion.
The
statements included in the Prospectus under the caption “Certain U.S. Federal
and U.K. Tax Consequences,” insofar as they purport to describe provisions of
U.S. federal income tax laws or legal conclusions with respect thereto, fairly
and accurately summarize the matters referred to therein in all material
respects.
In
rendering the opinions in paragraphs (1), (2) and (3) above, we have assumed
that each party to the Underwriting Agreement (including the Pricing Agreement),
the ADR Deposit Agreement and the ADRs has been duly incorporated and is validly
existing under the laws of the jurisdiction of its organization. In addition, we
have assumed that (i) the execution, delivery and performance by each party
thereto of the Underwriting Agreement (including the Pricing Agreement), the ADR
Deposit Agreement and the ADRs (a) are within its corporate powers, (b) do not
contravene, or constitute a default under, the certificate of incorporation or
bylaws or other constitutive documents of such party, (c) require no action by
or in respect of, or filing with, any governmental body, agency or official and
(d) do not contravene, or constitute a default under, any provision of
applicable law or regulation or any judgment, injunction, order or decree or any
agreement or other instrument binding upon such party and (ii) each of the ADR
Deposit Agreement and ADRs is a valid, binding and enforceable agreement of each
party thereto, (other than as expressly covered above in respect of the
Company).
34
FORM
OF ▇▇▇-▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. COUNSEL
FOR
THE COMPANY
On the basis of the information gained
in the course of the performance of the services rendered above, but without
independent check or verification except as stated:
1. The
Registration Statement, the ADR Registration Statement and the Prospectus appear
on their face to be appropriately responsive in all material respects to the
requirements of the 1933 Act and the applicable rules and regulations of the
Commission thereunder; and
2. nothing
has come to our attention that causes us to believe that, insofar as relevant to
the offering of the Series [ ] Preference Shares:
(a) on
the date of the Underwriting Agreement, the Registration Statement or the ADR
Registration Statement contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading,
(b) at
the [Time of Sale], the Disclosure Package 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, or
(c) the
Prospectus as of the date of the Underwriting Agreement or as of the date hereof
contained or contain any untrue statement of a material fact or omitted or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
In
providing this letter to you and the other several Underwriters, we have not
been called to pass upon, and we express no view regarding, the financial
statements or financial schedules or other financial or accounting data included
in the Registration Statement, the ADR Registration Statement, the Disclosure
Package or the Prospectus. It is understood, for the purpose of this letter,
that any data furnished in accordance with “Guide 3. Statistical
Disclosure by Bank Holding Companies” under the 1933 Act and the pro forma
accounts of the Company and ABN AMRO Holdings N.V. is financial data. In
addition, we express no view as to the conveyance of the Disclosure Package or
the information contained therein to investors.
35
ANNEX
IV
FORM
OF OPINION OF
DUNDAS
& ▇▇▇▇▇▇ ▇▇ LLP, SCOTTISH SOLICITORS
TO
THE COMPANY
Based
upon and subject to the foregoing and subject to the qualifications set out
below and to any matters not disclosed to us, it is our opinion that so far as
the present law of Scotland is concerned:
1. The
Company and the Bank have been duly incorporated in Scotland as limited
liability companies and are validly registered under the law of Scotland, are
not in liquidation, and have the corporate power and authority under such law to
conduct their respective businesses as described in the Prospectus and/or the
Prospectus Supplement.
2. The
Series [ ] Preference Shares have been duly created and, when allotted, issued
and paid for in accordance with the Pricing Agreement, the Underwriting
Agreement (including payment in full of premium) and the Nominee Agreement (a)
will be validly issued, fully paid and not subject to further calls or
contribution and (b) no holder thereof will be subject to personal liability to
the Company or any creditors thereof by reason only of being such a holder, and
the issue of Preference Shares will not be subject to the pre-emptive rights of
any shareholder of the Company.
3. The
statements made in the Disclosure Package and the Prospectus with regard to
Scots law under the heading “Description of Dollar Preference Shares”, and in
the Disclosure Package and the Prospectus Supplement with regard to Scots law
under the heading “Certain Terms of the Series [ ] Preference Shares” insofar as
such statements constitute a summary of certain of the rights and privileges of
the holders of the Series [ ] Preference Shares under Scots law or a summary of
the documents, legal matters or proceedings under Scots law referred to therein,
are accurate in all material respects, provided that we express no opinion as to
the reasonableness, completeness or fairness of such statements as an indication
of shareholder rights generally in the context of a prospectus issued publicly
in the United States of America.
4. The
creation and issue of the Series [ ] Preference Shares and the execution,
delivery and performance by the Company of the Agreements and the Nominee
Agreement is within the corporate power of the Company and have been duly
authorised by all necessary corporate action of the Company.
5. The
obligations on the part of the Company under the Deposit Agreement and the
Nominee Agreement are valid and legally binding against the Company, subject as
to enforcement to bankruptcy, insolvency, re-organisation and other laws of
general applicability relating to or affecting creditors’ rights generally and
to general equity principles.
6. No
authorisations, approvals, consents or licences of governmental, judicial or
public bodies or authorities of or in Scotland (together “consents”),
except such consents as may be required under statutory provisions (other than
the Companies Acts, 1985, 1989 and 2006 as they apply to a company having its
registered office in Scotland) or regulations or practices applying in Great
Britain as a whole, are required by the Company as a result of the Company being
a Scottish registered company for the valid creation, allotment, issue and
delivery of the Series [ ] Preference Shares.
36
7. Neither
the execution, delivery and performance by the Company of the Agreements and the
Nominee Agreement, nor the creation, allotment and issue of the Series [
] Preference Shares will of itself result in any violation in any
material respect of:-
(a) the
Memorandum or Articles of Association of the Company or the Bank;
or
(b) any
existing applicable mandatory provision of Scots law or regulation;
or
(c) any
existing judgment, order of decree or any Scottish court.
8. The
Underwriters would under current practice of the Scottish courts (assuming the
effect of Section 14 of the Underwriting Agreement is not to prorogate the
exclusive jurisdiction of the United States courts or the courts of or in the
State of New York) be permitted to commence proceedings in the Scottish courts
for enforcement of the Underwriting Agreement and the Scottish courts would
accept jurisdiction in any proceedings for so long as the Company remained
domiciled in Scotland and, upon proper averments being made in a Scottish court
in any such proceedings, the choice of the law of the State of New York as the
proper law of the Underwriting Agreement would be upheld as a valid choice of
law by that court.
9. The
Agreements and the Nominee Agreement have, insofar as Scots law governs the
formalities of execution and delivery thereof, been duly executed by or on
behalf of the Company.
10. The
submission by the Company in Section 14 of the Underwriting Agreement to the
jurisdiction of the courts of or in New York, and the designation, appointment
and empowerment by the Company under the said Section 14 of an agent for
service, would be upheld by the Scottish courts as valid and
effective.
11. In
relation to any Agreement which is expressed to be governed by the law of the
State of New York as its proper law, a judgment of the courts of the State of
New York as the relevant forum would be recognised in Scotland through an action
of decree–conform under common law in the Court of Session in Scotland, assuming
that (i) the court which issued the judgment had jurisdiction and acted
judicially with no element of unfairness, (ii) such judgment was final, not
obtained by fraud, or a revenue or penal action, remained capable of enforcement
in the place it was pronounced and was not contrary to natural justice, and
(iii) enforcement of the judgment is not contrary to Scottish public
policy.
37
ANNEX
V
FORM
OF OPINION OF LINKLATERS LLP
ENGLISH
SOLICITORS TO THE COMPANY
On the
basis of, and subject to, the foregoing assumptions and subject as set out below
and to any matters not disclosed to us and having regard to such considerations
of English law and United Kingdom tax law in force and our understanding of the
practice of H.M. Revenue and Customs applying as at the date of this opinion as
we consider relevant, and assuming that the Company is resident in the United
Kingdom for the purposes of United Kingdom taxation, we are of the opinion
that:
1. It
is not necessary to obtain any approval, consent, order or permission of, or to
effect any further filing, recording or registration with, any public authority
or governmental agency in England or authorisation from any regulatory
authority, government department or court in England (other than any consents,
approvals or authorisations required under the Companies ▇▇▇ ▇▇▇▇ and/or the
Companies ▇▇▇ ▇▇▇▇ as they apply to a company having its registered office in
Scotland - as to which we understand that you are relying on an opinion of
Dundas & ▇▇▇▇▇▇ ▇▇ LLP) in respect of the execution, delivery or performance
of the Securities, the ADR Deposit Agreement, the Underwriting Agreement, the
Pricing Agreement, the Nominee Agreement.
[ADDITIONAL
LANGUAGE TO BE ADDED IF NOTES ARE LISTED IN LONDON]
2. No
filing or registration of the Registration Statement, the Disclosure Package,
the Prospectus and Prospectus Supplement, the ADR Registration Statement, the
ADR Prospectus, or any other prospectus or circular is necessary under
legislation of general application in the United Kingdom (other than any filings
or registrations required under the Companies ▇▇▇ ▇▇▇▇ and/or the Companies ▇▇▇
▇▇▇▇ as they apply to a company having its registered office in Scotland - as to
which we do not express an opinion) in connection with the allotment, issue and
delivery of the Preference Shares or the sale of Preference Shares to the
Underwriters.
3. The
statements in the Disclosure Package and the Prospectus Supplement under the
section headed “Certain U.S. Federal and U.K. Tax Consequences”, insofar as such
statements constitute a general summary of both current United Kingdom tax law
and United Kingdom H.M. Revenue & Customs’ practice relevant to the issue of
the Securities, if any, fairly and accurately summarise the matters referred to
therein; provided however that we express no opinion as to the reasonableness,
completeness or fairness of such statements in the context of a prospectus
issued publicly in the United States of America or as to the compliance of such
statements with the requirements of the securities laws of the United States of
America or any part thereof.
4. Subject
as described under the heading “Stamp Duty and Stamp Duty Reserve Tax” in the
section of the Disclosure Package and the Prospectus Supplement headed “Certain
U.S. Federal and U.K. Tax Consequences”, no United Kingdom stamp duty, stamp
duty reserve tax, capital duty, registration or other issue or documentary taxes
are payable in the United Kingdom on (i) the creation, issue or delivery by, or
on behalf of, the Company of the Preference Shares in bearer form or (ii) the
deposit with the Depositary of the Preference Shares in
38
bearer
form, or (ii) the deposit with the Depository of the Preference Shares in bearer
form, the execution and delivery of the Pricing Agreement, the Underwriting
Agreement, the Nominee Agreement or the Deposit Agreement or the consummation of
the transactions contemplated thereby.
5. No
United Kingdom value added tax will be payable by the Underwriters in respect of
their underwriting commissions under the Underwriting Agreement and the Pricing
Agreement.
6. Neither
the execution and delivery of the Underwriting Agreement, the Pricing Agreement,
the Nominee Agreement and the ADR Deposit Agreement by the Company, nor the
compliance by the Company with its obligations under the Underwriting Agreement,
the Pricing Agreement, the Nominee Agreement or the ADR Deposit Agreement will,
of itself, breach (A) any mandatory provision of English law of general
application binding on the Company, or (B) any covenant of the Company (other
than any financial or similar covenant) contained in any of the following
documents:
(a) Trust
Deed dated 11 December 1985 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$350,000,000 undated floating rate primary
capital notes;
(b) [Trust
Deed dated 24 August 1989 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting U.S. $400,000,000 undated floating rate primary
capital notes;]1
(c) First
Supplemental Trust Deed dated 1 March 1993 between The Royal Bank of Scotland
plc, the Company and The Law Debenture Trust Corporation p.l.c. constituting
£150,000,000 10½% subordinated bonds 2013;
(d) Second
Supplemental Trust Deed dated 12 August 1993 between The Royal Bank of Scotland
plc, the Company and The Law Debenture Trust Corporation p.l.c. constituting
£200,000,000 9½% undated subordinated bonds;
(e) Trust
Deed dated 10 June 2002 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting €1,250,001,000 fixed/floating rate callable
subordinated notes due 2042;
(f) Trust
Deed dated 5 December 2002 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$750,001,000 fixed rate callable
subordinated notes due 2042;
(g) Trust
Deed dated 21 May 2003 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$850,001,000 fixed/floating rate callable
subordinated notes due 2043;
(h) Trust
Deed dated 10 December 2003 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$650,001,000 fixed/floating rate callable
subordinated notes due 2043;
1 To be confirmed.
39
(i)
Trust Deed dated 24 August 2004 between the
Company and The Law Debenture Trust Corporation p.l.c. constituting
U.S.$950,001,000 fixed/floating rate callable subordinated notes due
2044;
(j) Trust
Deed dated 24 August 2004 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$550,001,000 floating rate callable
subordinated notes due 2044, [as supplemented by a supplemental Trust Deed dated
27 September 2004 constituting an additional U.S.$450,001,000 floating rate
callable subordinated notes due 2044;]1
(k) Trust
Deed dated 12 December 2005 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting €500,001,000 fixed/floating rate callable
subordinated notes due 2046;
(l)
Trust Deed dated 8 December 2006 between the Company and The Law Debenture
Trust Corporation p.l.c. constituting £400,001,000 fixed/floating rate callable
subordinated notes due 2047; and
(m) Trust
Deed dated 4 October 2007 between the Group and BNY Corporate Trustee Services
Limited constituting U.S.$1,600,000,000 6.990 per cent. fixed/floating rate
preferred capital securities.
[Add any subsequent Trust
Deeds]
7. The
Nominee Agreement constitutes valid and binding obligations of the Company and
RBS Nominee, enforceable against each such company in accordance with its terms.
Clause 2 of the Nominee Agreement is sufficient to create a valid trust under
English law and to ensure that no Group Company (as defined therein) will be
beneficially interested under that trust.
For the
purposes of the opinion contained in paragraph 6 above we have interpreted the
effect of the Underwriting Agreement, the Pricing Agreement and the ADR Deposit
Agreement as if they were governed by and construed in accordance with English
law. Such opinion should not be taken as expressing an opinion as to the
observance of any financial or similar covenant contained in the documents
listed above.
1 To be confirmed.
40
ANNEX
VI
FORM
OF OPINION OF ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
COUNSEL
TO THE ADR DEPOSITARY
1. The
Deposit Agreement has been duly authorized, executed and delivered by the
Depositary and, assuming due authorization, execution and delivery of the
Deposit Agreement by the Company and further assuming that the Deposit Agreement
is a valid and binding agreement of the Company, constitutes a valid and legally
binding obligation of the Depositary enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws of general
application relating to or affecting creditors’ rights and by general principles
of equity;
2. Upon
the issuance by the Depositary of ADRs evidencing ADSs against the deposit of
Shares in accordance with the provisions of the Deposit Agreement (assuming such
Shares were, at the time of such deposit, (a) duly authorized and validly
issued, fully paid and not subject to further calls or contribution and (b)
registered in compliance with the Securities Act of 1933, as amended), such ADRs
will be duly and validly issued; and
3. The
ADRs issued under and in accordance with the provisions of the Deposit Agreement
will entitle the holders thereof to the rights specified therein and in the
Deposit Agreement.
41
ANNEX
VII
FORM
OF OPINION OF SHEARMAN & STERLING LLP,
COUNSEL
FOR THE UNDERWRITERS
1. The
ADR Deposit Agreement constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms.
2. Assuming
the ADRs are issued in conformity with the Deposit Agreement, the statements in
the Disclosure Package and the Prospectus under the caption “Certain Terms of
the Series [ ] Preference Shares,” insofar as such statements
constitute summaries of the ADRs, fairly summarize the ADRs in all material
respects as to legal matters.
3. Upon
due issuance by the ADR Depositary of the ADRs evidencing the ADSs against
deposit of the Series [ ] Preference Shares in accordance with
the provisions of the ADR Deposit Agreement, such ADRs will be validly issued
and persons in whose names such ADRs are registered will be entitled to the
rights of registered holders of ADRs specified therein and in the ADR Deposit
Agreement.
4. Assuming
that the Underwriting Agreement (including the Pricing Agreement) has been duly
authorized, executed and delivered by the Company insofar as Scots law is
concerned, the Underwriting Agreement (including the Pricing Agreement) has been
duly executed and delivered by the Company.
5. Assuming
the validity of such action under Scots law, under the laws of the State of New
York relating to submission to jurisdiction, pursuant to Section 14 of the
Underwriting Agreement, the Company has (i) validly and irrevocably submitted to
the jurisdiction of the federal courts of the United States of America located
in the Borough of Manhattan, the City of New York and the courts of the State of
New York located in the Borough of Manhattan, the City of New York, for the
purposes specified therein, (ii) to the fullest extent permitted by law, waived
any objection which it may now or hereafter have to the laying of venue in any
legal suit, action or proceeding in any federal or state court in the Borough of
Manhattan, the City of New York and (iii) validly and, to the extent stated
therein, irrevocably appointed ▇▇▇▇ ▇▇▇▇▇▇▇ as its initial authorized agent for
the purpose described in Section 14 of the Underwriting
Agreement. Service of process effected on such agent in the manner
set forth in Section 14 of the Underwriting Agreement will be effective to
confer valid personal jurisdiction over the Company.
6. Insofar
as the statements in the Disclosure Package and the Prospectus (i) under the
caption “Certain U.S. Federal and U.K. Tax Consequences” purport to describe
certain U.S. federal income tax laws as they relate to US Holders (as defined
therein) and (ii) under the caption “Certain ERISA Considerations” constitute
summaries of legal matters referred to therein, such statements fairly and
accurately summarize in all material respects the matters referred to
therein.
42
FORM
OF 10b-5 LETTER OF
SHEARMAN
& STERLING LLP,
COUNSEL
FOR THE UNDERWRITERS
Subject
to the limitations set forth in the immediately preceding paragraph, we advise
you that, on the basis of the information we gained in the course of performing
the services referred to above, in our opinion, (a) each of the documents
incorporated by reference in the Disclosure Package and the Prospectus (other
than the financial statements and other financial or statistical data contained
therein or omitted therefrom, as to which we express no opinion) at the time it
was filed with the Commission, appears on its face to have been appropriately
responsive in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended, and the applicable rules and regulations of
the Commission thereunder and (b) each of the Registration Statement, the
Preliminary Prospectus and the Prospectus (other than the financial statements
and other financial or statistical data contained therein or omitted therefrom,
as to which we express no opinion), appears on its face to be appropriately
responsive in all material respects to the requirements of the 1933 Act and the
applicable rules and regulations of the Commission thereunder.
We
further advise you that, subject to the limitations set forth in the second
preceding paragraph, on the basis of the information we gained in the course of
performing the services referred to above, no facts came to our attention which
gave us reason to believe that (i) the Registration Statement (other than the
financial statements and other financial or statistical data contained therein
or omitted therefrom, as to which we have not been requested to comment), as of
the date of the Pricing Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Disclosure
Package (other than the financial statements and other financial or statistical
data contained therein or omitted therefrom, as to which we have not been
requested to comment), as of the Applicable Time, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or (iii) the Prospectus (other than the financial
statements and other financial or statistical data contained therein or omitted
therefrom, as to which we have not been requested to comment), as of its date or
the date hereof, contained or contains an untrue statement of a material fact or
omitted or omits 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. In expressing the foregoing opinions and belief, we have
not been called to pass upon, and we express no opinion or belief as to, any
Statement of Eligibility of the Trustee on Form T-1. For the purposes of this
and the preceding paragraph, the term “financial data” includes, without
limitation, the pro forma accounts of the Company and ABN AMRO Holdings N.V. and
the data required to be included in the Registration Statement and the
Prospectus under the 1933 Act by Guide 3, Statistical Disclosure by Bank Holding
Companies.
43