SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
FORM F-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
HSBC Holdings plc
(Exact name of Registrant as specified in its charter)
England 98-0209906
(Jurisdiction of incorporation) (I.R.S. Employer Identification Number)
8 Canada Square
London E14 5HQ
England
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Tel. No.: (011-44-20) 7991-8888
(Address and telephone number of Registrant's principal executive offices)
Philip S Toohey
HSBC Bank USA
One HSBC Center
Buffalo, New York 14203
Tel. No.: (716) 841-2473
(Name, address and telephone number of agent for service)
Please send copies of all communications to:
Ashar Qureshi, Esq.
Cleary, Gottlieb, Steen & Hamilton
55 Basinghall Street
London EC2V 5EH
England
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. |_|
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement of the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. |_|
(1) In US dollars or their equivalent in foreign denominated currencies.
(2) This Registration Statement also covers an undeterminable amount of the
registered securities that may be reoffered and resold on an ongoing basis after
their initial sale in market-making transactions by affiliates of HSBC Holdings
plc.
(3) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933 and reflects the offering price rather than the
principal amount of any debt securities issued at a discount. The registration
fee of US$344,828 paid with respect to the Registration Statement on Form F-3
(No. 333-7186), which was initially filed with the Securities Exchange
Commission on 2 July 1997, is being offset pursuant to Rule 457(p) under the
Securities Exchange Act of 1933 against the currently due registration fee of
US$345,000. The registrant of such form was Midland Bank plc (which has since
changed its name to HSBC Bank plc), which is a wholly-owned subsidiary of the
Registrant.
(4) In no event will the aggregate initial public offering price of the
securities issued under this Registration Statement exceed US$3,750,000,000 or
if any debt securities are issued (i) at an original issue discount, such
greater amount as shall result in aggregate net proceeds not in excess of
US$3,750,000,000 to the Registrant or (ii) with a principal amount denominated
in a foreign currency, such amount as shall result in an aggregate initial
offering price equivalent to a maximum of US$3,750,000,000.
(5) Subject to note (4) above, there is being registered hereunder an
indeterminate principal amount of subordinated debt securities of HSBC Holdings
plc as may be issued from time to time at indeterminate prices. Such
subordinated debt securities may be convertible into other securities of HSBC
Holdings plc.
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
The prospectus contained herein relates to both of the following:
o the initial offering of dated debt securities, undated debt securities and dollar preference shares of HSBC Holdings plc on a continuous or delayed basis, at an aggregate initial public offering price of up to $3,750,000,000; and
o market-making transactions that may occur on a continuous or delayed basis in the dated debt securities and undated debt securities described above, after they are initially offered and sold.
When the prospectus is delivered to an investor in the initial offering described above, the investor will be informed of that fact in the confirmation of sale. When the prospectus is delivered to an investor who is not so informed, it is delivered in a market-making transaction.
The information contained in this prospectus is not complete and may be changed. This prospectus is not an offer to sell, and it is not soliciting nor is it seeking an offer to buy these securities, in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated 25 November 2002
Prospectus
[Logo Omitted]
HSBC Holdings plc
Subordinated Debt Securities and Non-cumulative Dollar-denominated Preference Shares American Depositary Shares
HSBC Holdings plc may offer the following securities for sale through this prospectus:
o subordinated debt securities; and
o non-cumulative dollar-denominated preference shares of $0.01 nominal value each. The dollar preference shares will be represented by American depositary shares.
The aggregate initial offering price of any combination of securities offered through this prospectus will not exceed $3,750,000,000 (or its foreign currency equivalent).
We will provide the specific terms of the securities that we are offering in supplements to this prospectus. You should read this prospectus and any prospectus supplement carefully before you invest.
This prospectus may not be used to consummate sales of debt securities or preference shares unless accompanied by a prospectus supplement.
THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES COMMISSION REGULATORS HAVE NOT APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
We may use this prospectus in the initial sale of these securities. In addition, HSBC Securities (USA) Inc. or another of our affiliates may use this prospectus in a market-making transaction in any of these securities after their initial sale. Unless we or our agent informs you otherwise in the confirmation of sale, this prospectus is being used in a market-making transaction.
The date of this prospectus is 2002.
This document is only being distributed to and is only directed at (i) persons who are outside the United Kingdom or (ii) to investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001 (the "Order") or (iii) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2) of the Order (all such persons together being referred to as "relevant persons"). Securities offered through this prospectus will only be available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such securities will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents.
Any securities offered through this prospectus may not be offered and sold to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or except otherwise in circumstances which do not, and will not, constitute an offer to the public in the United Kingdom for the purposes of the Public Offers of Securities Regulations 1995. All applicable provisions of the Public Offers of Securities Regulations 1995 must be complied with in respect of anything done in relation to any securities issued by HSBC Holdings plc in, from or otherwise involving the United Kingdom.
In connection with any issue of securities through this prospectus, a stabilising manager or any person acting for him may over-allot or effect transactions with a view to supporting the market price of such securities and any associated securities at a level higher than that which might otherwise prevail for a limited period after the issue date. However, there may be no obligation on the stabilising manager or any agent of his to do this. Such stabilising, if commenced, may be discontinued at any time, and must be brought to an end after a limited period.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the "SEC") using the "shelf" registration process. Under the shelf registration process, we may sell the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of the securities. The prospectus supplement may also add to or update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading "Where You Can Find More Information About Us".
As used in this prospectus and in any prospectus supplement, the terms "HSBC Holdings" "we," "us" and "our" refer to HSBC Holdings plc, and the terms "HSBC Group" and "HSBC" mean HSBC Holdings plc and its subsidiary undertakings. In addition, the term "UK GAAP" means generally accepted accounting principles in the United Kingdom and the term "US GAAP" means generally accepted accounting principles in the United States.
Our consolidated financial statements are published in US dollars. In this prospectus and any prospectus supplement, "US dollars", US$ or "$" refers to US currency, "pounds sterling", "(pound)" or "pence" refers to UK currency, "euro" or "(euro)" refers to the single currency adopted by those states participating in the European Monetary Union from time to time and "HK$" or "Hong Kong dollars" refers to Hong Kong currency.
LIMITATIONS ON ENFORCEMENT OF US LAWS AGAINST US,
OUR MANAGEMENT AND OTHERS
We are an English public limited company. Most of our directors and executive officers (and certain experts named in this prospectus or in documents incorporated by reference) are resident outside the United States, and a substantial portion of our assets and the assets of such persons are located outside the United States. As a result, it may be difficult for you to effect service of process within the United States upon these persons or to enforce against them or us in US courts judgments obtained in US courts predicated upon the civil liability provisions of the federal securities laws of the United States. We have been advised by our English solicitors, Norton Rose, that there is doubt as to enforceability in the United Kingdom, in original actions or in actions for enforcement of judgments of US courts, of liabilities predicated solely upon the federal securities laws of the United States.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We file annual reports and special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at (800) SEC-0330 for further information on the public reference room.
The SEC allows us to "incorporate by reference" in this prospectus the information in the documents that we file with it, which means we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus. We incorporate by reference in this prospectus the documents listed below.
o Interim Report on Form 6-K dated 5 August 2002 for the six months ended 30 June 2002;
o Annual Report on Form 20-F, as amended, for the year ended 31 December 2001;
o Filing pursuant to Rule 425 dated 14 November 2002, corrected on a filing pursuant to Rule 425 dated 20 November 2002;
o Filing pursuant to Rule 425 dated 20 November 2002;
o Report of Foreign Issuer on Form 6-K dated 20 November 2002;
o any future Reports on Form 6-K that indicate they are incorporated into this registration statement; and
o any future Annual Reports on Form 20-F that we may file with the SEC under the Securities Exchange Act of 1934 (the "Exchange Act"), until we sell all of the securities that may be offered through this prospectus.
You may request a copy of these documents at no cost to you by writing or telephoning us at either of the following addresses:
Group Company Secretary
HSBC Holdings plc
8 Canada Square
London
E14 5HQ England
Tel: 011 (44-20) 7991-8888
HSBC Holdings plc
c/o HSBC Bank USA
452 Fifth Avenue
New York, New York, 10018
Attn: Regional Compliance Officer
Tel: (212) 525-5000
We will provide to the trustee referred to under "Description of Subordinated Debt Securities" and the depositary referred to under "Description of ADSs" our annual reports, which will include a description of operations and annual audited consolidated financial statements prepared under UK GAAP, together with a reconciliation of net income and shareholders' funds to amounts to US GAAP. We will also furnish the trustee and the depositary with interim reports which will include unaudited interim consolidated financial information prepared under UK GAAP and which may contain a reconciliation of net income and shareholders' funds to US GAAP. The trustee and the depositary, as appropriate, shall make such reports available for inspection by holders at their respective corporate trust offices.
HSBC
HSBC is one of the largest banking and financial services organisations in the world, with a market capitalisation of US$109 billion at 31 December 2001. At the end of 2001, HSBC had total assets of US$696 billion and shareholders' equity of US$46 billion. For the year ended 31 December 2001, HSBC's operating profit was US$7 billion on revenues of US$26 billion. HSBC is a strongly capitalised banking group with a total capital ratio of 13.0 per cent and a tier 1 capital ratio of 9.0 per cent as at 31 December 2001.
Headquartered in London, HSBC operates through long-established businesses in five regions: Europe; Hong Kong; rest of Asia-Pacific, including the Middle East and Africa; North America; and Latin America. Within each of these geographical regions, the principal businesses operate essentially as domestic banks and typically have a large retail deposit base, together with strong liquidity and capital ratios, and provide services to personal, commercial and large corporate and institutional customers. By using HSBC's highly efficient technological links, all businesses are able to access HSBC's wide range of products and services and adapt them to local customer needs. In addition, in certain key locations -- London, Hong Kong, New York, Geneva, Paris and Dusseldorf -- HSBC has significant investment and private banking operations which, together with its commercial banks, enable HSBC to service the full range of requirements of its high net worth personal and large corporate and institutional customers.
Through its global network of some 7,000 offices in 81 countries and territories, HSBC provides a comprehensive range of financial services to personal, commercial, corporate, institutional and investment and private banking clients. As part of its strategy, HSBC created a global brand in 1998, using HSBC and its hexagon symbol in most of its areas of operation.
HSBC's largest and best-known subsidiaries and their primary areas of operation are:
o The Hongkong and Shanghai Hong Kong SAR, with an
Banking Corporation Limited extensive network throughout
Asia-Pacific
o Hang Seng Bank Limited (`Hang Seng Bank') Hong Kong SAR
o HSBC Bank plc United Kingdom
o Credit Commercial de France (`CCF')1 France
o HSBC Bank USA New York State in the
United States
o HSBC Bank Brasil S.A.-Banco Brazil
Multiplo (`HSBC Bank Brasil')
o HSBC Private Banking Holdings (Suisse) S.A. Switzerland, France,
(`HSBC Republic Suisse') Luxembourg, Guernsey and
Monaco (through various
subsidiaries)
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Note:
1. On 3 June 2002, Credit Commercial de France changed its name to "CCF S.A."
USE OF PROCEEDS
Unless we otherwise disclose in the accompanying prospectus supplement, we will use the net proceeds from the sale of the securities to support the development of HSBC and to strengthen further the capital base of HSBC Holdings.
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERENCE SHARE DIVIDENDS
The ratios of earnings to combined fixed charges and preference share dividends for HSBC for the periods indicated, using financial information calculated in accordance with UK GAAP and estimated financial information adjusted to reflect US GAAP, are:
Year ended 31 December
----------------------
6 months ended
June 30, 2002 2001 2000 1999 1998 1997
------------- ------- ------ ------ ------ ------
Ratios in accordance with UK GAAP:
Excluding interest on deposits............. 6.88 5.00 5.86 7.84 6.77 8.63
Including interest on deposits............. 1.69 1.35 1.38 1.45 1.29 1.44
Estimated ratios in accordance with US GAAP:
Excluding interest on deposits............. 3.82 4.90 5.67 7.38 6.32 8.35
Including interest on deposits............. 1.33 1.34 1.37 1.42 1.26 1.43
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For the purpose of calculating the ratios of earnings to combined fixed charges and preference share dividends, earnings consist of income (loss) from continuing operations before taxation and minority interests, plus fixed charges and after deduction of the unremitted pre-tax income of associated undertakings. Fixed charges consist of total interest expense, including or excluding interest on deposits, as appropriate, preference share dividends, as applicable, and the proportion of rental expense deemed representative of the interest factor.
CONSOLIDATED CAPITALISATION AND INDEBTEDNESS OF HSBC HOLDINGS PLC
The following table shows the consolidated unaudited capitalisation and share
capital position of HSBC Holdings plc and its subsidiary undertakings as at 30 June 2002:
Authorised Issued and
fully paid
US$m US$m
Ordinary Share Capital:
Ordinary shares (of nominal value US$0.50 each) 7,500 4,725
===============
Amount
outstanding
US$m
Consolidated Loan Capital
Undated Subordinated Loan Capital of Subsidiary Undertakings
US$ 1,200m Primary capital subordinated undated floating rate notes 1,200
US$ 750m Undated floating rate primary capital notes 750
US$ 500m Undated floating rate primary capital notes 500
US$ 300m Undated floating rate primary capital notes (series 3) 300
(pound) 150m 9.25% step-up undated subordinated notes 229
(pound) 150m 8.625% step-up undated subordinated notes 229
Other undated subordinated liabilities less than US$200m 309
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3,517
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Subordinated Loan Capital of HSBC Holdings plc
US$ 1,000m 7.5% subordinated notes 2009 999
(pound) 413m 11.69% subordinated bonds 2002 632
(pound) 250m 9.875% subordinated bonds 2018 377
US$ 350m Subordinated step-up coupon floating rate notes 2010 349
(euro) 300m 5.5% subordinated notes 2009 297
US$ 250m Subordinated collared floating rate notes 2008 250
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2,904
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Subordinated Loan Capital of Subsidiary Undertakings
(pound) 350m 5.75% subordinated variable coupon notes 2017 535
US$ 500m 7.625% subordinated notes 2006 500
(pound) 300m 6 1/2% subordinated notes 2023 455
US$ 400m 8 5/8% subordinated notes 2004 400
HK$ 3,000m Subordinated collared (7% to 9%) floating rate notes 2003 385
US$ 375m Subordinated step-up coupon floating rate notes 2009 375
US$ 350m 7.4% subordinated guaranteed notes 2003 350
(pound) 225m 6.25% subordinated notes 2041 341
(pound) 200m 9% subordinated notes 2005 306
US$ 300m 6.95% subordinated notes 2011 300
US$ 300m 7.65% subordinated notes 2025 300
US$ 300m 7% fixed rate subordinated notes 2006 299
US$ 250m 7.25% subordinated notes 2002 250
US$ 250m 5.875% subordinated notes 2008 228
US$ 250m 7.2% subordinated notes 2097 215
US$ 200m 7.808% capital securities 2026 200
US$ 200m 8.38% capital securities 2027 200
US$ 200m 6.625% subordinated notes 2009 200
Other subordinated liabilities less than US$200m 3,456
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9,295
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Non-equity Minority Interest
US$ 1,350m 9.547% Non-Cumulative Step-up Perpetual
Preferred Securities, Series 1 1,337
US$ 900m 10.176% Non-Cumulative Step-up
Preferred Securities, Series 2 891
(pound) 500m 8.208% Non-Cumulative Step-up Perpetual Preferred Securities 757
(euro) 600m 8.03% Non-Cumulative Step-up Perpetual Preferred Securities 588
Other preference shares issued by subsidiary undertakings 779
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4,352
===============
Other Indebtedness
Deposits by banks 61,455
Customer accounts 470,778
Debt securities in issue 28,683
Other liabilities 111,920
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672,836
===============
Memorandum Items
Contingent liabilities
Acceptances and endorsements 4,191
Guarantees and assets pledged as collateral security 45,181
Other 14
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49,386
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Notes:
(1) The authorised ordinary share capital of HSBC Holdings plc as at 30 June 2002 was US$7,500 million divided into 15,000 million ordinary shares of US$0.50 each, and (pound)301,500 divided into 301,500 non-voting deferred shares of (pound)1 each. At 30 June 2002, the authorised and unissued preference share capital of HSBC Holdings plc was 10 million non-cumulative preference shares of US$0.01 each, 10 million non-cumulative preference shares of (pound)0.01 each and 10 million non-cumulative preference shares of (euro)0.01 each.
(2) The Non-Cumulative Step-up Perpetual Preferred Securities each have the benefit of a subordinated guarantee of HSBC Holdings plc. None of the other above Consolidated Loan Capital is secured or guaranteed. No account has been taken of liabilities or guarantees between undertakings within the group, comprising HSBC Holdings plc and its subsidiary undertakings.
(3) On 9 October 2002, HSBC Holdings plc paid its first interim dividend for 2002. Ordinary shares with a value of US$166 million were issued to those existing shareholders who had elected to receive new shares at market value in lieu of cash. As the full amount of the dividend was accrued as payable at 30 June 2002, shareholders' funds increased by US$166 million as a result of these elections.
(4) Since 30 June 2002, 15,276,184 ordinary shares of US$0.50 each have been allotted and issued as a result of the exercise of employee share options.
(5) HSBC Holdings plc redeemed (pound)413 million 11.69% subordinated notes on 31 July 2002.
(6) HSBC USA Inc. redeemed US$250 million 7.25% subordinated notes on 15 July 2002, US$100 million floating rate subordinated notes on 7 August 2002 and US$150 million floating rate subordinated notes on 28 October 2002.
(7) As at 30 June 2002, HSBC had pledged assets of US$40,845 million as security for liabilities of US$12,233 million.
Save as disclosed in the above notes, there has been no material change in the authorised and issued share capital of HSBC Holdings plc or the loan capital, other indebtedness, contingent liabilities or third party guarantees of HSBC Holdings plc and its subsidiary undertakings since 30 June 2002.
The following exchange rates as at 30 June 2002 have been used in the table above:
US$1.00 = Hong Kong dollars 7.79995; (euro)1.00 = US$0.99030; (pound)1.00 = US$1.52855.
DESCRIPTION OF SUBORDINATED DEBT SECURITIES
Debt securities offered through this prospectus will be issued under one of two indentures to be entered into between HSBC Holdings, as issuer, and The Bank of New York, as trustee. The dated debt securities will be issued under the indenture for dated debt securities and the undated securities will be issued under the indenture for undated debt securities. The following summary of certain provisions of the debt securities and the indentures and any such summary in any prospectus supplement do not purport to be complete and are subject to and are qualified by reference to, all the provisions of the debt securities and the relevant indenture. Defined terms used in this section but not otherwise defined in this prospectus have the meanings assigned to them in the relevant indenture.
General
The indentures do not limit the amount of debt securities that we may issue under them and provide that we may issue debt securities from time to time in one or more series.
The debt securities will be our direct and unsecured subordinated obligations. The debt securities of each series will rank pari passu among themselves, without any preference one over the other by reason of the date they were issued or otherwise.
Please refer to the prospectus supplement relating to the particular series of debt securities offered through this prospectus for the following terms, where applicable, of the debt securities:
o whether such debt securities will be dated debt securities with a specified maturity date or undated debt securities with no specified maturity date;
o the title and series of such debt securities;
o the aggregate principal amount of such debt securities, and the limit, if any, on the aggregate principal amount of the debt securities of that series that may be issued under the relevant indenture;
o the issue date or dates and the maturity date or dates, if any;
o the rate or rates, at which such debt securities will bear interest or the method by which interest will be determined, and the dates and mechanics of payment of interest, including record dates;
o any optional redemption terms;
o whether such debt securities, if dated, are to be issued as discount securities and the terms and conditions of any such discount securities;
o the place or places where any principal, premium or interest in respect of debt securities of the series shall be payable;
o whether payments are subject to a condition that we are able to make such payment and remain able to pay our debts as they fall due and our assets continue to exceed our liabilities (other than subordinated liabilities), or a solvency condition;
o whether there are any other conditions to which payments with respect to such debt securities are subject;
o provisions, if any, for the discharge and defeasance of such dated debt securities;
o the form in which such debt securities are to be issued;
o if other than in authorised denominations, the denominations in which such debt securities will be issuable;
o if other than the principal amount thereof, the portion of the principal amount of debt securities of the series that shall be payable upon declaration of acceleration of the payment of such principal pursuant to the relevant indenture;
o the currency in which such debt securities are to be denominated;
o the currency in which payments on such debt securities will be made;
o if payments on debt securities may be made in a currency other than US dollars, or a foreign currency or a foreign currency other than the foreign currency in which such debt securities are denominated or stated to be payable, the periods within which and the terms and conditions upon which such election may be made and the time and manner of determining the relevant exchange rate;
o whether any debt securities of the series are to be issued as indexed securities and, if so the manner in which the principal of (and premium, if any, on) or interest thereon shall be determined and the amount payable upon acceleration under the relevant indenture and any other terms in respect thereof;
o any restrictive covenants provided for with respect to such debt securities;
o any other events of default;
o provisions, if any, for the exchange or conversion of such debt securities; and
o any other terms of the series.
Dated debt securities of any series may be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate that at the time of issuance is below market rates, may be redeemable at a premium, or may be otherwise designated by us as issued with original issue discount. We will discuss certain tax considerations that may be relevant to holders of such discount securities, undated or perpetual debt securities and debt securities providing for indexed, contingent or variable payments or payments in a currency other than the currency in which such debt securities are denominated in the prospectus supplement relating to such securities.
Debt securities and any coupons relating to such debt securities will become void unless presented for payment within ten years with respect to a payment of principal and premium, if any, and five years with respect to a payment of interest. All monies paid by us to a paying agent or the trustee for the payment of principal of (and premium, if any, on) or any interest on any debt security that remain unclaimed at the end of two years after such principal, premium, or interest shall have become due and payable will be repaid to us, and the holder of such debt security must look to us for payment thereof.
Form, Settlement and Clearance
General. Unless otherwise indicated in the applicable prospectus supplement, debt securities of a series will be issued only as a global security in bearer form and will be payable only in US dollars and title to this global security will pass by delivery. The form of the debt securities is described below, and references in this description to debt securities shall be to debt securities of such series and references to the global security and book-entry debt securities will be to the related global security and related book-entry debt securities.
The global security will be deposited on issue with a book-entry depositary, as appointed from time to time, which will hold the global security for the benefit of The Depository Trust Company or its nominee ("DTC") and its participants pursuant to the terms a debt security deposit agreement among us, the book-entry depositary and the holders and beneficial owners from time to time of book-entry debt securities. Pursuant to the debt security deposit agreement, the book-entry depositary will issue one or more certificateless depositary interests which together will represent a 100 per cent interest in the underlying global security. These book-entry debt securities will be issued to DTC, which will operate a book-entry system for the book-entry debt securities.
Ownership of interests in the book-entry debt securities will be limited to persons that have accounts with DTC or persons that hold interests through such DTC participants. Ownership of book-entry debt securities will be shown on, and the transfer of such book-entry debt securities will be effected only through, records maintained by DTC and its participants. The laws of some states may require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability of such purchasers to own, transfer or pledge book-entry debt securities or interests therein.
As long as the book-entry depositary is the holder of the global security, the book-entry depositary or its nominee will be considered the sole holder of such global security for all purposes under the relevant indenture. Accordingly, each person owning an interest in a book-entry debt security must rely on the procedures of the book-entry depositary and DTC and on the procedures of the DTC Participant through which such person owns its interest to exercise any rights and obligations of a holder under the relevant indenture or the Deposit Agreement. See "--Action by Holders of Debt Securities".
DTC has advised us that: DTC is a limited-purpose trust company organised under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants deposit with DTC. DTC also facilitates settlement among participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerised book-entry changes in participants' accounts thereby eliminating the need for physical movement of securities certificates. Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organisations. DTC is owned by a number of its participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly.
Payments on the Global Debt Security. Payments of any amounts in respect of the global security will be made through a paying agent to the book-entry depositary. The book-entry depositary will pay this amount to DTC, which will distribute such payments to its Participants. All such payments will be distributed without deduction or withholding for any UK taxes or other governmental charges, or if any such deduction or withholding is required to be made under the provisions of any applicable UK law or regulation, then, except as described under "Additional Amounts," such additional amounts will be paid as may be necessary in order that the net amounts received by any holder of the global security and by the owners of book-entry debt securities, after such deduction or withholding, will equal the net amounts that such holder and owners would have otherwise received in respect of the global security or book-entry debt securities, as the case may be, if such deduction or withholding had not been made. DTC, upon receipt of any such payment, will immediately credit participants' accounts with payments in amounts proportionate to their respective ownership of book-entry debt securities, as shown on the records of DTC. We expect that payments by participants to owners of book-entry debt securities held through such participants will be governed by standing customer instructions and customary practices and will be the responsibility of such participants.
None of us, the trustee, the book-entry depositary or any their agents will have any responsibility or liability for any aspect of the records relating to or payments made by DTC on account of a participant's ownership of interests in the book-entry debt securities or for maintaining, supervising or reviewing any records relating to a participant's interests in book-entry debt securities.
Redemption. In the event the global security (or any portion thereof) is redeemed, the book-entry depositary will redeem, from the amount received by it in respect of the redemption of the global security, an equal amount of the book-entry debt securities. The redemption price payable in connection with the redemption of book-entry debt securities will be equal to the amount received by the book-entry depositary in connection with the redemption of the global security (or any part of a global security).
Action by Holders of Debt Securities. We understand that under existing industry practices, if we request any action of holders of debt securities or if an owner of a book-entry debt security desires to give or take any action that a holder is entitled to give or take under the relevant indenture or the owner of a book-entry debt security is entitled to give or take under the deposit agreement, DTC would authorise the participants owning the relevant book-entry debt securities to give or take such action, and such participants would authorise indirect participants to give or take such action or would otherwise act upon the instructions of owners holding through them.
As soon as practicable after receipt by the book-entry depositary of notice of any solicitation of consents or request for a waiver or other action by the holders of debt securities, the book-entry depositary will mail to DTC a notice containing
o such information as is contained in the notice received from us;
o a statement that at the close of business on a specified record date DTC will be entitled, subject to the provisions of or governing the relevant book-entry debt securities or debt securities, to instruct the book-entry depositary as to the consent, waiver or other action, if any, pertaining to the debt securities; and
o a statement as to the manner in which such instructions may be given.
Upon the written request of DTC, the book-entry depositary shall endeavor to take such action regarding the requested consent, waiver or other action in respect of the debt securities in accordance with any instructions set forth in such request. DTC is expected to follow the procedures described above with respect to soliciting instructions from its participants. The book-entry depositary will not exercise any discretion in the granting of consents or waivers or the taking of any other action relating to the debt security deposit agreement, the DTC agreement or the indenture.
Reports. The book-entry depositary will as promptly as practicable send to DTC a copy of any notices, reports and other communications received by it as holder of the debt securities from us or the trustee.
Amendment and Termination. The debt security deposit agreement may be amended by agreement between us and the book-entry depositary and the consent of DTC or the owners of book-entry debt securities shall not be required in connection with any amendment to the debt security deposit agreement
o to cure any ambiguity, omission, defect or inconsistency in the debt security deposit agreement;
o to add to our covenants and agreements or those of the book-entry depositary;
o to evidence or effect the assignment of the book-entry depositary's rights and duties to a qualified successor;
o to comply with the US Securities Act of 1933, as amended, the Exchange Act, the US Investment Company Act of 1940, as amended, the Trust Indenture Act of 1940 or any other applicable law, rule or regulation; and
o to modify, alter, amend or supplement the debt security deposit agreement in any other manner that is not adverse to DTC or the beneficial owners of book-entry debt securities.
No amendment that adversely affects DTC may be made to the debt security deposit agreement without the consent of DTC.
If we issue definitive debt securities in exchange for the entire global security, the book-entry depositary will surrender the global security against receipt of the definitive debt securities, distribute the definitive debt securities to the persons and in the amounts as specified by DTC and the debt security deposit agreement will terminate with respect to such series of debt securities. The debt security deposit agreement may also be terminated upon the resignation of the book-entry depositary if no successor has been appointed within 90 days as set forth under "--Resignation of Book-Entry Depositary" below. Any definitive debt securities will be issued in accordance with the provisions described under "--Definitive Debt Securities" below.
Resignation of Book-Entry Depositary. The book-entry depositary may at any time resign. If a successor depositary is appointed in accordance with the debt security deposit agreement, upon our request or request of the successor, the retiring book-entry depositary must, subject to certain conditions, deliver the global security to that successor. If no such successor has so agreed within 90 days, the book-entry depositary may petition court for the appointment of a successor unless definitive debt securities have been issued in accordance with the relevant indenture, DTC or the depositary.
Settlement. Initial settlement for the debt securities and settlement of any secondary market trades in the debt securities will be made in same-day funds. The book-entry debt securities will settle in DTC's Same-Day Funds Settlement System.
Definitive Debt Securities. Owners of interests in the book-entry debt securities or debt securities will be entitled to receive definitive debt securities in registered form in respect of such interest if (1) (i) DTC notifies the book-entry depositary or the book-entry depositary notifies us in writing that it is unwilling to or unable to continue as a depositary for the book-entry debt securities of such series or the debt securities, as the case may be, or (ii) if at any time DTC ceases to be eligible as a "clearing agency" registered under the Exchange Act or we become aware of such ineligibility and, in either case, a successor is not appointed by the book-entry depositary within 90 days or (2) an Event of Default has occurred and is continuing and the registrar has received a request from the book-entry depositary or DTC, as the case may be or (3) the applicable prospective supplement provides otherwise with respect to a particular series. Unless otherwise indicated in the applicable prospectus supplement, definitive debt securities will not be issued in bearer form.
Unless otherwise indicated in the applicable prospectus supplement, definitive debt securities will be issued in denominations of $1,000 or integral multiples of $1,000 and will be issued in registered form. Such definitive debt securities shall be registered in the name or names of such person or persons as the book-entry depositary shall notify the trustee based on the instructions of DTC.
Payments
Any payments of interest and, in the case of dated debt securities, principal and premium (if any), on any particular series of debt securities will be made on such dates and, in the case of payments of interest, at such rate or rates, as are set forth in, or as are determined by the method of calculation described in, the prospectus supplement relating to the debt securities of such series.
Dated Debt Securities. Unless otherwise provided in a prospectus supplement relating to any series of dated debt securities, and subject also to the following paragraph, if we do not make a payment with respect to any dated debt securities on any relevant payment date, our obligation to make such payment will be deferred until (and the payment will not be due and payable until):
o in the case of a payment of interest, the date on which a dividend is paid on any class of our share capital; and
o in the case of a payment of principal, the first business day after the date that falls six months after the original payment date.
Failure by us to make any such payment prior to such deferred date will not constitute a default by us or allow any holder to sue us for such payment or take any other action. Each payment so deferred will accrue interest at the rate prevailing in accordance with the terms of such series of dated debt securities immediately before the original payment date for such payment. Any payment so deferred will not be treated as due for any purpose (including, without limitation, for the purposes of ascertaining whether or not an event of default has occurred) until the relevant deferred date. The term "business day" means, with respect to any particular series of debt securities, except as may otherwise be provided in the prospectus supplement relating to such series of debt securities, a weekday that is not a day on which banking institutions are authorised or obligated by law or executive order to close in any jurisdiction in which payments with respect to such series are payable.
Undated Debt Securities. We are not required to make payments with respect to any series of undated debt securities on any payment date specified for such payment in the prospectus supplement relating to the debt securities of such series. Failure to make any such payment on any such payment date will not constitute a default by us for any purpose. Any payment not made by us in respect of any series of undated debt securities on any applicable Payment Date, together with any other unpaid payments, will, so long as they remain unpaid, constitute "missed payments" and will accumulate until paid. Missed payments will not bear interest.
Missed payments, if any, may be paid at our option in whole or in part at any time on not less than 14 days' notice to the trustee, but all missed payments in respect of all undated debt securities of a particular series at the time outstanding will (subject to any solvency condition) become due and payable in full on whichever is the earliest of
o the date upon which a dividend is next paid on any class of our share capital;
o the date fixed for any redemption of such undated debt securities; and
o the commencement of our winding up in England.
If we give notice of our intention to pay the whole or part of the missed payments on the undated debt securities of any series, we will be obliged, subject to any solvency condition, to do so upon the expiration of such notice. Where missed payments in respect of undated debt securities of any series are paid in part, each part payment will be deemed to be in respect of the full amount of missed payments accrued relating to the earliest payment date or consecutive payment dates in respect of such undated debt securities.
If we are unable to make any payment on or with respect to the undated debt securities of any series because we are not able to satisfy a solvency condition, the amount of any such payment which would otherwise be payable will be available to meet our losses. In the event of our winding up, the right to claim for interest, including missed payments, and any other amount payable on such undated debt securities may be limited by applicable insolvency law.
Computation of Interest. Except as otherwise specified in the prospectus supplement with respect to the debt securities of any series, any interest on the debt securities of each series, which is not denominated in Euro, will be computed on the basis of a 360-day year of twelve 30-day months. Interest on debt securities of each series denominated in Euro will be computed on the basis of the actual number of days in the calculation period divided by 365 (or, if any portion of that calculation period falls in a leap year, the sum of (a) the actual number of days in that portion of the calculation period falling in a leap year, divided by 366 and (b) the actual number of days in that portion of the calculation period falling in a non-leap year, divided by 365).
Subordination
Dated Debt Securities. The rights of holders of dated debt securities will, in the event of our winding up, be subordinated in right of payment to claims of our depositors and all our other creditors other than claims which are by their terms, or are expressed to be, subordinated to the dated debt securities (including the undated debt securities). The subordination provisions of the dated indenture, and to which the dated debt securities are subject, are governed by English law.
Holders of dated debt securities and the trustee, by their acceptance of the dated debt securities, will be deemed to have waived any right of set-off or counterclaim that they might otherwise have.
Undated Debt Securities. The rights of holders of undated debt securities will, in the event of our winding up, be subordinated in right of payment to claims of our depositors and all our other creditors other than claims which are by their terms, or are expressed to be, subordinated to the undated debt securities. The subordination provisions of the undated indenture, and to which the undated debt securities are subject, are governed by English law. In the event of our winding up, holders of undated debt securities will be treated in the same way as they would be treated if they were holders of a class of preference shares in us; they will receive an amount equal to the principal amount of the undated subordinated debt securities of such series then outstanding together with accrued interest, if any, to the extent that a holder of such class of preference shares would receive an equivalent amount.
Holders of undated debt securities and the trustee, by their acceptance of the undated debt securities, will be deemed to have waived any right of set-off or counterclaim that they might otherwise have.
Additional Amounts
Unless otherwise specified in the prospectus supplement with respect to the debt securities of any series all amounts of principal of (and premium, if any, on) and interest and related deferred payments and missed payments on debt securities will be paid by us without deducting or withholding any present and future taxes, levies, imposts, duties, charges, fees, deductions, or withholdings whatsoever imposed, levied, collected, withheld or assessed by or for the account of the United Kingdom or any political subdivision or taxing authority thereof or therein, or if such deduction or withholding shall at any time be required by the United Kingdom or any such subdivision or authority, we will pay such additional amounts as may be necessary so that the net amounts paid to the holders of the debt securities or the trustee, after such deduction or withholding, shall equal the respective amounts to which the holders of the debt securities or the trustee would have been entitled had no deduction or withholding been made, provided that the foregoing will not apply to any such tax, levy, impost, duty, charge, fee, deduction or withholding which:
o would not be payable or due but for the fact that the holder or beneficial owner of the debt securities is domiciled in, or is a national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the United Kingdom or such political subdivision, or otherwise has some connection or former connection with the United Kingdom or such political subdivision other than the holding or ownership of a debt security, or the collection of principal, premium, if any, interest and related deferred payments and missed payments on, or the enforcement of, a debt security; or
o would not be payable or due but for the fact that the relevant debt security or coupon or other means of payment of interest or related deferred payments or missed payments in respect of debt securities (i) is presented for payment in the United Kingdom or (ii) is presented for payment more than 30 days after the date payment became due or was provided for, whichever is later, except to the extent that the holder would have been entitled to such additional amount on presenting the same for payment at the close of such 30 day period; or
o is imposed on a payment to an individual and is required to be made pursuant to any European Union directive on the taxation of savings income relating to the proposal for a directive on the taxation of savings income published by the ECOFIN Council on 13 December 2001 or otherwise implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000, or any law implementing or complying with, or introduced in order to conform to, such a directive; or
o would not have been imposed if presentation for payment of the relevant debt securities had been made to a paying agent other than the paying agent to which the presentation was made; or
o is imposed because of the failure to comply by the holder or the beneficial owner of the debt securities or the beneficial owner of any payment on such debt securities with a request from us addressed to the holder or the beneficial owner, including a request from us related to a claim for relief under any applicable double tax treaty:
(a) to provide information concerning the nationality, residence, identity or connection with a taxing jurisdiction of the holder or the beneficial owner; or
(b) to make any declaration or other similar claim to satisfy any information or reporting requirement,
if the information or declaration is required or imposed by a statute, treaty, regulation, ruling or administrative practice of the taxing jurisdiction as a precondition to exemption from withholding or deduction of all or part of the tax, duty, assessment or other governmental charge; or
o is imposed in respect of any estate, inheritance, gift, sale, transfer, personal property, wealth or similar tax, duty assessment or other governmental charge; or
o is imposed in respect any combination of the above items.
We have agreed in each indenture that at least one paying agent for each series of debt securities will be located outside the United Kingdom. We undertake that, if the conclusions of the ECOFIN Council meeting of November 26-27, 2000 are implemented, we will ensure that we maintain a paying agent in a European Union member state that will not be obliged to withhold or deduct taxes pursuant to the European Union Directive on the taxation of savings proposed at the ECOFIN Council meeting of 26-27 November 2000 if there is at least one Member State which does not require a paying agent to withhold or deduct pursuant to such Directive.
References in this prospectus to principal of (and premium, if any, on) and interest on debt securities shall be deemed also to refer to any additional amounts which may be payable under the foregoing provisions.
Redemption
In addition to the redemption provisions set forth in the prospectus supplement relating to the debt securities of a series, the debt securities of any series may be redeemed, in whole but not in part, at our option, on not less than 30 nor more than 60 days' notice, at any time at a redemption price equal to the principal amount (or in the case of principal indexed debt securities, face amount) thereof (or premium, if any), together with accrued interest, if any, to the date fixed for redemption (or, in the case of discounted securities, the accreted face amount thereof, together with accrued interest, if any, or, in the case of an index-linked debt security, the amount specified in the related prospectus supplement) and any debt securities convertible into preference shares or other securities may, at our option, be converted as a whole, if, at any time, we determine that:
(a) in making payment under such debt securities in respect of principal (or premium, if any), interest or related deferred payment or missed payment we have or will or would become obligated to pay additional amounts as provided in the relevant indenture and as described under "--Additional Amounts" above as a result of a change in or amendment to the laws of the United Kingdom or any political subdivision or taxing authority thereof or therein affecting taxation, or change in the official application or interpretation of such laws, or any change in, or in the official application or interpretation of, or execution of, or amendment to, any treaty or treaties affecting taxation to which the United Kingdom is a party, which change, amendment or execution becomes effective on or after the date of original issuance of the debt securities of such series; or
(b) the payment of interest in respect of such debt securities would be treated as a "distribution" within the meaning of Section 209 of the Income and Corporation Taxes Act 1988 of the United Kingdom (or any statutory modification or reenactment thereof for the time being) as a result of a change in or amendment to the laws of the United Kingdom or any such political subdivision or tax authority, or any change in the official application or interpretation of such laws, including a decision of any court, which change or amendment becomes effective on or after the date of original issuance of the debt securities of such series;
provided, however, that, in the case of (a) above, no notice of redemption shall be given earlier than 90 days prior to the earliest date on which we would be obliged to pay such additional amounts were a payment in respect of such debt securities then due.
Any redemption of the undated debt securities may be subject to one or more solvency conditions, as specified in the relevant prospectus supplement.
We and any of our subsidiary undertakings may, in accordance with applicable law, repurchase debt securities for our or their account. Under the practices of the Financial Services Authority, (the "FSA") at the date of this prospectus, any optional tax redemption and any other optional redemption or repurchase requires the prior consent of the FSA.
Modification and Waiver
Modifications of and amendments to the relevant indenture with respect to the debt securities may be made by us and the trustee, without the consent of the holders of the debt securities of such series for certain purposes and otherwise with the consent of the holders of a majority in principal amount (or in the case of index-linked debt securities, face amount) of the debt securities of such series then outstanding; provided, however, that no such modification or amendment may, without the consent of the holder of each outstanding debt security affected thereby:
o change the stated maturity of the principal of, or any installment of interest or additional amounts payable on, any dated debt security or change the terms of any undated debt security to include a stated maturity of the principal or change the payment dates for payment of additional amounts on any undated debt security;
o reduce the principal amount (or in the case of index-linked debt securities, face amount), including the amount payable on a discount security upon the acceleration of the maturity thereof, of any interest or any related deferred payment, missed payment or the rate of interest on any of the foregoing, on or any premium payable upon redemption of, or additional amounts payable on, any debt security;
o change the manner in which the amount of any principal, premium or interest in respect of index-linked debt securities is determined;
o except as permitted by the relevant indenture, change our obligation to pay additional amounts;
o reduce the amount of the principal of a discount security that would be due and payable upon an acceleration of the maturity of it;
o change the place of payment or currency in which any payment of the principal (any premium, if any), any interest or any related deferred payment or missed payment is payable on any debt security, or the rate of interest on any of the foregoing;
o impair the right to institute suit for the enforcement of any payment on or with respect to any debt security;
o reduce the percentage of the aggregate principal amount (or in the case of index-linked debt securities, face amount) of the outstanding debt securities of such series, the consent of whose holders is required for any such modification or amendment, or the consent of the holders of which is required for waiver of compliance with certain provisions of the applicable indenture or waiver of certain defaults, as provided in that indenture;
o change any of the provisions relating to modifications of and amendments to the relevant indenture, waivers of past defaults, or waivers of certain covenants except to increase the relevant percentages or to provide that certain other provisions of the relevant indenture cannot be modified or waived without the consent of all holders of affected debt securities;
o change the terms and conditions of the preference shares or conversion securities into which undated debt securities may be convertible;
o change any of our obligations to maintain an office or agency in the places and for the purposes required by the relevant indenture;
o change in any manner adverse to the interests of the holders of the debt securities of such series the subordination provisions of any series of debt securities; or
o modify or affect in any manner adverse to the interests of the holders of the debt securities of such series the terms and conditions of our obligations regarding the due and punctual payment of the principal, premium, if any, interest, any deferred payment or missed payment or the rate of interest on any of the foregoing.
The holders of not less than a majority in principal amount (or, in the case of any principal indexed debt securities, face amount) of the outstanding debt securities of a series may, on behalf of all holders of debt securities of that series, waive, insofar as that series is concerned, our compliance with certain restrictive provisions of the indenture before the time for such compliance. The holders of not less than a majority in aggregate principal amount (or, in the case of any principal indexed debt securities, face amount) of the outstanding debt securities of a series may, on behalf of all holders of debt securities of that series, waive any past event of default or default under the applicable indenture with respect to debt securities of that series, except a default in the payment of any principal of (or, premium, if any, on) or any installment of interest or related deferred payment or missed payment on any debt securities of that series and except a default in respect of a covenant or provision, the modification or amendment of which would require the consent of the holder of each outstanding debt security affected by it.
In addition, material variations in the terms and conditions of debt securities of any series, including modifications relating to subordination, redemption and events of default may require the consent of the FSA.
Defaults and Event of Default
Unless otherwise provided in a prospectus supplement, with respect to debt securities of a series, subject to certain exceptions, it shall be an event of default only if an order is made by an English court which is not successfully appealed within 30 days after the date such order was made for our winding up or an effective resolution is validly adopted by our shareholders for our winding up. If an event of default occurs and is continuing with respect to a series of debt securities, the trustee may, and if so requested by the holders of at least 25 per cent in principal amount of the outstanding debt securities of such series shall, declare the principal amount (or such other amount as is specified in the prospectus supplement) together with accrued but unpaid interest (or, in the case of discount securities, the accreted face amount, together with accrued interest, if any, or, in the case of an index-linked debt security, the amount specified in the related prospectus supplement) with respect to the debt securities of such series due and payable immediately; provided that after such declaration, but before a judgment or decree based on such declaration has been obtained, the holders of a majority in principal amount of the outstanding debt securities of such series may (under certain circumstances) rescind and annul such declaration.
Unless otherwise provided in a prospectus supplement with respect to any series of debt security and subject to the paragraph below relating to circumstances in which a relevant failure will not be a default, it shall be a default with respect to dated debt securities of a series if:
o any installment of interest upon any dated debt security of such series or any related coupon is not paid when due and such failure continues for 14 days; or
o all or any part of the principal of (or premium, if any, on) any dated debt security of such series as and when the same shall become due and payable, whether at maturity, upon redemption or otherwise, is not paid and such failure continues for 7 days;
provided that, if we do not pay any installment of interest on the pertinent interest payment date or all or any part of principal at maturity, the obligation to make such payment and such interest payment date or maturity, as the case may be, shall be deferred until (i) in the case of a payment of interest, the date on which a dividend is paid on any class of our share capital and (ii) in the case of a payment of principal, the first business day after the date that falls six months after the original payment date. Failure by us to make any such payment prior to such deferred date will not constitute a default by us or allow any holder to sue us for such payment or to take any other action. Any payment so deferred will not be treated as due for any purpose (including, without limitation, for the purposes of ascertaining whether or not a default has occurred) until the relevant deferred date.
Unless otherwise provided in a prospectus supplement with respect to any series of debt security and subject to the paragraph below relating to circumstances in which a relevant failure will not be a default, it shall be a default with respect to undated debt securities of a series if:
o any missed payment is not paid on or prior to any date on which a dividend is paid on any class of our share capital and such failure continues for 30 business days; or
o all or any part of the principal of (or premium, if any, on), or any accrued but unpaid interest and any missed payments on the date fixed for redemption of such undated debt securities is not paid when due and such failure continues for 7 business days.
If a default occurs, the trustee may institute proceedings in England (but not elsewhere) for our winding up provided that the trustee may not, upon the occurrence of a default on the debt securities, accelerate the maturity of any of the dated debt securities of the relevant series or declare the principal of (or premium, if any on) and any accrued but unpaid interest of the undated debt securities of the relevant series immediately due and payable unless an event of default has occurred and is continuing. For the purposes of determining whether or not an event of default has occurred on the undated debt securities, a payment will not be deemed to be due on any date on which a solvency condition as set out in the relevant prospectus supplement is not satisfied. However, if we fail to make the payments set out in the two bullet points above, and at such time such solvency condition is satisfied, the trustee may institute proceedings in England (but not elsewhere) for our winding up.
Notwithstanding the foregoing, failure to make any payment in respect of a series of debt securities shall not be a default in respect of such debt securities if such payment is withheld or refused
o in order to comply with any fiscal or other law or regulation or with the order of any court of competent jurisdiction, in each case applicable to such payment; or
o in case of doubt as to the validity or applicability of any such law, regulation or order, in accordance with advice given as to such validity or applicability at any time during the said grace period of 14 days, 30 business days, 7 days or 7 business days, as the case may be, by independent legal advisers acceptable to the trustee;
provided, however, that the trustee may, by notice to us, require us to take such action (including but not limited to proceedings for a declaration by a court of competent jurisdiction) as the trustee may be advised in an opinion of counsel, upon which opinion the trustee may conclusively rely, is appropriate and reasonable in the circumstances to resolve such doubt, in which case, we shall forthwith take and expeditiously proceed with such action and shall be bound by any final resolution of the doubt resulting therefrom. If any such resolution determines that the relevant payment can be made without violating any applicable law, regulation or order then the preceeding sentence shall cease to have effect and the payment shall become due and payable on the expiration of the relevant grace period of 14 days, 30 business days, 7 days or 7 business days, as the case may be, after the trustee gives written notice to us informing us of such resolution.
After the end of each fiscal year, we will furnish to the trustee a certificate of certain officers as to the absence of an event of default, or a default under the relevant indenture as the case may be, specifying any such default.
No remedy against us other than as specifically provided by the relevant indenture shall be available to the trustee or the holders of debt securities or coupons whether for the recovery of amounts owing in respect of such debt securities or under the relevant indenture or in respect of any breach by us of any obligation, condition or provision under the relevant indenture or such debt securities or coupons or otherwise, and no holder of any debt security will have any right to institute any proceeding with respect to the relevant indenture, the debt securities or for any remedy thereunder, unless such holder shall have previously given to the trustee written notice of a continuing event of default or default and unless also the holders of not less than a majority in aggregate principal amount (or, in the case of an index-linked debt security, the face amount) of the outstanding debt securities of such series shall have made written request to the trustee to institute such proceedings as trustee, and the trustee shall not have received from the holders of a majority in aggregate principal amount (or, in the case of an index-linked debt security, the face amount) of the outstanding debt securities of such series direction inconsistent with such request and the trustee shall have failed to institute such proceeding within 60 days.
Subject to the provisions of the relevant indenture relating to the duties of the trustee, in case an event of default or default shall occur and be continuing with respect to the debt securities of a series, the trustee will be under no obligation to any of the holders of the debt securities of such series, including without limitation to take any of the actions referred to above, unless such holders shall have offered to the trustee indemnity satisfactory to the trustee. Subject to such provisions for the indemnification of the trustee, and subject to certain exceptions, the holders of a majority in aggregate principal amount (or, in the case of an index-linked debt security, the face amount) of the outstanding debt securities of a series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of such series.
Each indenture provides that the trustee will, within 90 days after the occurrence of an event of default or default with respect to the debt securities of a series, give to the holders of the affected debt securities notice of such event of default or default, unless such event of default or default shall have been cured or waived, provided that, the trustee will be protected in withholding such notice if it reasonably determines that the withholding of such notice is in the interest of such holders.
Notwithstanding anything to the contrary in this prospectus, nothing will impair the right of a holder (absent the consent of such holder) to institute suit for any payments due but unpaid with respect to its debt securities.
Consolidation, Merger and Sale of Assets
We may, without the consent of the holders of any of the debt securities, consolidate or amalgamate with, or merge into, any corporation, or convey, sell, transfer or lease our properties and assets substantially as an entirety to any person, provided that :
o any successor corporation expressly assumes our obligations under the debt securities and the relevant indenture and, if applicable, the provision for payment of additional amounts for withholding taxes are amended to include the jurisdiction of incorporation of the successor corporation;
o immediately after giving effect to the transaction and treating any indebtedness that becomes our obligation, as a result of such transaction as having been incurred by us at the time of the transaction, no event of default or default, and no event that, after notice or lapse of time, or both, would become an event of default or a default, shall have occurred and be continuing; and
o certain other conditions are satisfied.
Assumption of Obligations
With respect to a series of debt securities, a holding company of us or any of our subsidiary undertakings or such holding company may assume our obligations (or those of any corporation which shall have previously assumed our obligations); provided, that:
o the successor entity expressly assumes such obligations by an amendment to the relevant indenture, in a form satisfactory to the trustee, and we shall, by an amendment to the relevant indenture, unconditionally guarantee all of such successor entity's obligations under the debt securities of such series and the relevant indenture, as so modified by such amendment (provided, however, that, for the purposes of our obligation to pay additional amounts as provided, and subject to the limitations as set forth, in the relevant indenture and as described under the section headed "--Additional Amounts" above, references to such successor entity's country of organisation will be added to the references to the United Kingdom);
o the successor entity confirms in such amendment to the relevant indenture that the successor entity will pay to the holders such additional amounts as provided by, and subject to the limitations set forth in, the relevant indenture and as described under the section headed "--Additional Amounts" above (provided, however, that for these purposes such successor entity's country of organisation will be substituted for the references to the United Kingdom); and
o immediately after giving effect to such assumption of obligations, no event of default or default and no event which, after notice or lapse of time or both, would become an event of default or default with respect to debt securities of such series shall have occurred and be continuing.
Upon any such assumption, the successor entity will succeed to, and be substituted for, and may exercise all of our rights and powers under the relevant indenture with respect to the debt securities of such series with the same effect as if the successor entity had been named under the relevant indenture.
Defeasance and Discharge
If so specified in the applicable prospectus supplement with respect to debt securities of a series that are payable only in US dollars, we will be discharged from any and all obligations in respect of the debt securities of such series (with certain exceptions) if, at any time, inter alia, we shall have delivered to the trustee for cancellation all debt securities of such series theretofore authenticated, or all debt securities of such series not theretofore delivered to the trustee for cancellation have or will become due and payable in accordance with their terms within one year or are to be, or have been, called for redemption, exchange or conversion within one year under arrangements satisfactory to the trustee for the giving of notice of redemption and, in either case, we shall have irrevocably deposited with the trustee, in trust,
o cash in US dollars in an amount; or
o US government obligations which through the payment of interest thereon and principal thereof will provide not later than the due date of any payment, cash in US dollars in an amount; or
o any combination of the foregoing,
sufficient to pay all the principal of (and premium, if any), and interest on, the debt securities of such series in accordance with the terms of the dated debt securities of such series and all other amounts payable by us under the relevant indenture. Any defeasance will be subject to the consent of the FSA if required.
The indenture for the dated debt securities also provides that we need not comply with certain covenants ("covenant defeasance") of such indenture with respect to dated debt securities of a series if:
o we irrevocably deposit, in trust with the trustee, (a) cash in US dollars in an amount, or (b) US government obligations which through the payment of interest thereon and principal thereof in accordance with their terms will provide cash in US dollars not later than the due date of any payment, in an amount, or (c) any combination of (a) and (b), sufficient in the opinion (with respect to (b) and (c)) of an internationally recognised firm of independent public accountants expressed in a written certification thereof delivered to the trustee to pay all the principal of (and premium, if any) and interest on, the dated debt securities of such series in accordance with the terms of such dated debt securities of such series;
o no event of default or default or no event (including such deposit) which, after notice or lapse of time or both, would become an event of default or a default with respect to the dated debt securities of such series shall have occurred and be continuing on the date of such deposit;
o we deliver to the trustee an officer's certificate stating that all conditions precedent relating to such covenant defeasance have been complied with; and
o certain other conditions are complied with.
Any covenant defeasance will be subject to the consent of the FSA if required.
Conversion
Dated debt securities. The prospectus supplement relating to a particular series of debt securities may provide for the exchange or conversion of such dated debt securities.
Undated debt securities. Except as otherwise specified in the prospectus supplement relating to a particular series of debt securities, we will have the option to convert, in whole but not in part, the undated debt securities of any series into preference shares on any payment date. The related prospectus supplement will describe the other terms and conditions of the conversion provisions.
Concerning the Trustee
Except during the continuance of an event of default or a default, the trustee will only be liable for performing those duties specifically set forth in the relevant indenture. In the event that an event of default or default occurs (and is not cured or waived), the trustee will be required to exercise its power with the degree of care and skill of a prudent person in the conduct of such person's own affairs.
Governing Law
Except as stated above, each indenture and the debt securities of each series will be governed by and construed in accordance with the laws of the State of New York. See "--Subordination".
Jurisdiction; Consent to Service
We have consented to the jurisdiction of the courts of the State of New York and the US courts located in the City of New York with respect to any action that may be brought in connection with the indentures or the debt securities of any series and have appointed HSBC Bank USA as agent for service of process.
DESCRIPTION OF DOLLAR PREFERENCE SHARES
The following is a summary of the material terms of the dollar preference shares of any series. The material terms of a particular series of the dollar preference shares offered in the form of American depositary shares, or ADSs, of a corresponding series will be summarised in the prospectus supplement relating to the dollar preference shares of that series. The material terms of a particular series of dollar preference shares may differ from the terms stated below, which will be indicated in the relevant prospectus supplement. Holders of the dollar preference shares are encouraged to read our Memorandum and Articles of Association (the "Articles of Association") and any resolutions adopted by our board of directors or one of its authorised committees that set forth the material terms of a particular series of the dollar preference shares. Copies of the Articles of Association and the relevant resolutions have been filed as exhibits to the registration statement.
General
Under our Articles of Association, our board of directors or a committee authorised by it can authorise the issuance of one or more series of dollar preference shares with such dividend rights, liquidation value per share, redemption provisions, voting rights and other rights, preferences, privileges, limitations and restrictions as it sees fit subject to the limitations set out in our Articles of Association. The dollar preference shares will rank equal with any pounds sterling-denominated preference shares of (pound)0.01 nominal value each and any euro-denominated preference shares of (euro)0.01 nominal value each in our capital and with all other shares that rank equal to the sterling, euro or dollar preference shares.
Currently, we do not have outstanding any series of dollar, sterling or euro preference shares. The dollar preference shares of each series will have a nominal value per share, dividend rights, redemption price and liquidation value per share stated in US dollar-denominated terms and will be issued only in fully paid form. For each dollar preference share of a particular series that is issued, an amount equal to the share's nominal value will be credited to our issued share capital account, and an amount equal to the difference, if any, between the share's issue price and its nominal value will be credited to our share premium account. Unless otherwise specified in the prospectus supplement relating to the dollar preference shares of a particular series, the dollar preference shares will have a nominal value of $0.01 per share.
The dollar preference shares of any series will initially be issued in bearer form and deposited with The Bank of New York, the depositary, against the issuance of American Depositary Shares, or ADSs, evidenced by American Depositary Receipts, upon receipt of payment for the dollar preference shares. The dollar preference shares of a particular series deposited under the deposit agreement will be represented by ADSs of a corresponding series. Dollar preference shares of any series withdrawn from deposit under the deposit agreement will be represented by share certificates in registered form without dividend coupons. These share certificates will be delivered at the time of withdrawal. Dollar preference shares of more than one series that are deposited under the deposit agreement as units will be represented by a unit of each corresponding series of ADSs. These ADSs will be represented by a unit of each corresponding series of ADRs. When withdrawn from deposit, the units of dollar preference shares will be represented by one share certificate in registered form, without dividend coupons. The certificate will be delivered at the time of withdrawal and may be exchanged by the holder for separate share certificates in registered form, without dividend coupons, representing the dollar preference shares of that series. Dollar preference shares of each series that are withdrawn from deposit will be transferable separately. See "Description of ADSs."
The holder can transfer title to dollar preference shares of any series in registered form only by transfer and registration on the register for the dollar preference shares of the relevant series. Dollar preference shares of any series in registered form cannot be exchanged, in whole or in part, for dollar preference shares of the series in bearer form. The registration of transfer of dollar preference shares of any series can be made only on the register for the dollar preference shares of the series kept by the registrar at its office in the United Kingdom. See "Registrar and Paying Agent" below. The registrar will not charge the person requesting the registration a fee. However, the person requesting registration will be liable for any taxes, stamp duties or other governmental charges that must be paid in connection with the registration. See "Taxation--Taxation of Dollar Preference Shares, ADSs and Undated Debt Securities--UK Stamp Taxes". Neither the Articles of Association nor English law currently limit the right of non-resident or foreign owners to acquire freely dollar preference shares of any series or, when entitled to vote dollar preference shares of a particular series, to vote freely the dollar preference shares. There are currently no English laws or regulations that would restrict the remittance of dividends or other payments to non-resident holders of dollar preference shares of any series.
The dollar preference shares of any series will have the dividend rights, rights upon liquidation, redemption provisions and voting rights summarised below, unless the prospectus supplement relating to the dollar preference shares of a particular series states otherwise. The holder of the dollar preference shares should pay particular attention to the following specific terms relating to his particular series of shares, including:
o the designation of the dollar preference shares of the series and number of shares offered in the form of ADSs;
o the liquidation value per share of the dollar preference shares of the series;
o the price at which the dollar preference shares of the series will be issued;
o the dividend rate (or method of calculation of the dividend) and the dates on which dividends will be payable;
o any redemption provisions; and
o any other rights, preferences, privileges, limitations and restrictions related to the dollar preference shares of the series.
Dividends
The holders of the dollar preference shares of a particular series will be entitled to receive any cash dividends declared by us out of the profits available for distribution on the dates and at the rates or amounts stated, or as determined by the method of calculation described in the prospectus supplement relating to that series.
We will declare and fully pay dividends on each series of dollar preference shares on each dividend payment date unless, in our opinion:
o payment of the dividend would cause us not to meet applicable capital adequacy requirements of the FSA; or
o the profits available to us to distribute as dividends are not sufficient to enable us to pay in full both dividends on the series of dollar preference shares and the dividends on any other of our shares that are scheduled to be paid on the same date as the dividends on the series of dollar preference shares and that have an equal right to dividends as the dollar preference shares of that series.
Unless the prospectus supplement relating to the dollar preference shares of a particular series states otherwise, if the profits available to us to distribute as dividends are, in our board of directors' opinion, not sufficient to enable us to pay in full on the same date both dividends on the dollar preference shares of the series and the dividends on any other shares that have an equal right to dividends as the dollar preference shares of that series, we are required first, to pay in full, or to set aside an amount equal to, all dividends scheduled to be paid on or before that dividend payment date on any shares with a right to dividends ranking in priority to that of the dollar preference shares, and second, to pay dividends on the dollar preference shares of the series and any other shares ranking equally with the dollar preference shares of that series as to participation in profits pro rata to the amount of the cash dividend scheduled to be paid to them. The amount scheduled to be paid will include the amount of any dividend payable on that date and any arrears on past cumulative dividends on any shares ranking equal in the right to dividends with the dollar preference shares of that series. In accordance with the Companies Act 1985, the profits available to us for distribution are, in general and with some adjustments, equal to our accumulated, realised profits less our accumulated, realised losses.
The dividends to be paid on the dollar preference shares of any series for each dividend period will be computed based upon the amount paid up or credited as paid up on each of the dollar preference shares of that series. The dividend will be calculated by annualising the applicable dividend amount or rate and dividing by the number of dividend periods in a year. The dividends to be paid will be computed on the basis of a 360-day year of twelve 30-day months for any dividend period that is shorter or longer than a full dividend period and on the basis of the actual number of days elapsed for any partial month.
Dividends on the dollar preference shares of any series will be non-cumulative. If the dividend, or a portion of it, on the dollar preference shares of a particular series is not required to be paid and is not paid on the relevant date scheduled for payment, then the holders of dollar preference shares of the series will lose the right they had to the dividend and will not earn any interest on the unpaid amount, regardless of whether dividends on the dollar preference shares of the series are paid for any future dividend period.
We will fix a date to pay dividends on the dollar preference shares of any series to the record holders who are listed on the register as the holders of the dollar preference shares on the relevant record date, including The Bank of New York as holder of the shares underlying the ADSs. The relevant record date will be between 15 and 60 days prior to the relevant dates for dividend payment fixed by us. Unless the law requires otherwise, we will pay the dividend in the form of a US dollar check drawn on a bank in London or in New York City and mailed to the holder at the address that appears on the register for the dollar preference shares. If the date we have scheduled to pay dividends on the dollar preference shares of any series is not a day on which banks in London and in New York City are open for business and on which foreign exchange dealings can be conducted in London and in New York City, then the dividend will be paid on the following business day, and we will not be required to pay any interest or other payment because of the delay. Dividends declared but not yet paid do not bear interest. For a description of how dividends will be distributed to holders of ADSs, see "Description of ADSs - Share Dividends and Other Distributions."
If we have not paid the dividend on the dollar preference shares of any series in full on the most recent date scheduled for dividend payment in respect of a dividend period, we will not be permitted thereafter to declare or pay dividends or distributions on any class of our shares ranking lower in the right to dividends than the dollar preference shares of any series, unless we pay in full, or set aside an amount to provide for payment in full of, the dividends on the dollar preference shares of the series for the then-current dividend period or for such other period as may be specified in the prospectus supplement relating to the dollar preference shares of that series.
Unless the prospectus supplement relating to the dollar preference shares of a particular series states otherwise, if we have not paid in full a dividend payable on the dollar preference shares of any series on the most recent dividend payment date, we will not be permitted thereafter to redeem or purchase in any manner any of our other shares ranking equal with or lower than the relevant dollar preference shares, and we will not be permitted to contribute money to a sinking fund to redeem or purchase the other shares in any manner, until the dividends on the relevant dollar preference shares have been paid in full or an amount equal to payment in full has been set aside for three consecutive quarterly dividend periods or for such other period as may be specified in the prospectus supplement relating to the dollar preference shares of that series. Except as provided in this prospectus and in the prospectus supplement relating to the dollar preference shares of a particular series, the holders of the dollar preference shares of any series do not have the right to share in our profits.
Liquidation Rights
If we are wound up and capital is returned to the shareholders or otherwise (but not, unless otherwise specified in the prospectus supplement relating to the dollar preference shares of a particular series, on a redemption, purchase by us or reduction of any of our share capital), the holders of the dollar preference shares of a particular series that are outstanding at the time and the holders of any other of our shares ranking in payment of capital equal or in priority to the series will be entitled to receive payment in US dollars out of our assets available for distribution to shareholders. This distribution will be made in priority to any distribution of assets to holders of any class of our shares ranking lower in the right to repayment of capital than the dollar preference shares of the series. The payment will be equal to the amount paid up (or credited as paid up) on each dollar preference share together with any premium on such share as may be determined in, or by a mechanism contained in, the prospectus supplement relating to such dollar preference share plus any dividends declared but not paid for the dividend period ending prior to the commencement of the winding up and any dividends accrued and not paid for the dividend period commencing prior to the commencement of the winding up but ending after such date, to the extent such dividend would otherwise (but for the winding up) have been payable, provided that sufficient assets exist to make such distribution having satisfied any amounts payable to the holders of shares ranking in priority to the dollar preference shares as regards the repayment of capital. If at the time we are wound up, the amounts payable with respect to the dollar preference shares of any series and any of our other preference shares ranking equal as regards repayment of capital with the dollar preference shares of the series are not paid in full, the holders of the dollar preference shares of the series and of the other preference shares will share ratably in any distribution of our assets in proportion to the full respective amounts to which they are entitled. After payment of the full amount to which they are entitled, the holders of the dollar preference shares of the series will have no right or claim to any of our remaining assets and will not be entitled to receive any of our profits or a return of capital in a winding up.
Redemption and Purchase
Subject to the Companies Act 1985, we have the right to redeem the whole (but not part only) of any series of dollar preference shares at certain times specified in the Articles of Association after the fifth anniversary of the date of original issue of the dollar preference shares of the series, unless otherwise specified in the prospectus supplement relating to the dollar preference shares of the particular series. In respect of each dollar preference share redeemed, we shall pay in US Dollars the aggregate of the nominal value of such dollar preference share and any premium credited as paid up on such share together with any dividend payable on the date of redemption.
If we wish to redeem dollar preference shares of any series, we must provide notice to the depositary and each record holder of the dollar preference shares to be redeemed, between 30 and 60 days prior to the date fixed for redemption. The notice of redemption must state:
o the redemption date;
o the particular dollar preference shares to be redeemed;
o the redemption price; and
o the place or places where documents of title relating to the dollar preference shares are to be presented for redemption and payment for them will be made.
The redemption process will not be considered invalid due to a defect in the notice of redemption or in the mailing. The dividend on the dollar preference shares due for redemption will stop accruing starting on the relevant redemption date, except in the case where the payment to be made on any dollar preference share is improperly withheld or refused upon redemption. In that case, the dividend will continue to accrue from the relevant redemption date to the date of payment. In this case, a dollar preference share will not be treated as having been redeemed until the relevant redemption payment and any accrued dividend on those amounts has been paid. Subject to any applicable fiscal or other laws and regulations, we will make the redemption payment by a US dollar check drawn on, or, if the holder requests, by transfer to a dollar account maintained by the person to be paid with, a bank in London or in New York City. The holder of the dollar preference shares to be redeemed must deliver to us the relevant share certificates at the place specified in the Notice of Redemption. In the event that any date on which any payment relating to the redemption of dollar preference shares of any series is to be made is not a business day, then payment of the redemption price payable on that date will be made on the following business day, with no interest or other additional payment due because of the delay.
We may at any time purchase outstanding dollar preference shares of any
series in the open market, by tender to all holders of dollar preference shares
of that series alike or by private agreement. These purchases will be made in
accordance with the Articles of Association, applicable law (including, the
Companies Act 1985 and US federal securities laws) and applicable regulations of
the FSA in its capacity as the United Kingdom Listing Authority. Any dollar
preference shares of any series purchased or redeemed by us for our own account
(other than in the ordinary course of the business of dealing in securities)
will be canceled by us and will no longer be issued and outstanding. Under
existing FSA requirements, we can redeem or purchase preference shares of any
series only with the prior consent of the FSA.
Voting Rights
The holders of the dollar preference shares having a registered address within the United Kingdom are entitled to receive notice of our general meetings but will not be entitled to attend or vote at those meetings, except as set forth below or as provided for in the prospectus supplement relating to any particular series of dollar preference shares.
If our board determines for a particular series of preference shares, the holders of dollar preference shares of such series will be entitled to receive notice of, attend and vote at our general meetings if we have failed to pay in full the dividend payable on the dollar preference shares for the dividend period or periods determined by our board for such series. If so determined by our board for a particular series of preference shares, the holders of dollar preference shares of such series will be entitled to vote on all matters put before all our general meetings until such time as we shall have paid in full the dividends on the dollar preference shares.
Whenever entitled to vote at our general meetings, on a show of hands, each holder of dollar preference shares present in person shall have one vote and on a poll each holder of dollar preference shares present in person or by proxy shall have one vote per share.
In addition, holders of the dollar preference shares may have the right to vote separately as a class in certain circumstances as described below under the heading "Variation of Rights".
Variation of Rights
The rights, preferences or restrictions attached to the dollar preference shares may be varied by the consent in writing of the holders of three-quarters of the dollar preference shares of all series in issue or by the sanction of an extraordinary resolution passed at a separate general meeting of the holders of dollar preference shares as a single class regardless of series.
The rights, preferences or restrictions of any particular series of dollar preference shares may be varied adversely on a different basis to other series of dollar preference shares by the consent in writing of the holders of three-quarters of the dollar preference shares of that particular series or by the sanction of an extraordinary resolution passed at a separate general meeting of the holders of dollar preference shares of that series.
An extraordinary resolution requires the approval of three-quarters of the holders voting in person or by proxy at the meeting. Two persons holding or representing by proxy at least one-third of the outstanding dollar preference shares of any series must be present for the meeting to be valid. An adjourned meeting will be valid when any one holder is present in person or by proxy.
We may create or issue any shares of any class, or any securities convertible into shares of any class, that rank equally with the dollar preference shares of any series in the right to share in our profits or assets, whether the rights attaching to such shares are identical to or differ in any respect from the dollar preference shares, without the rights of the dollar preference shares of any series being deemed to be varied or abrogated.
The rights attached to the dollar preference shares will not be deemed to be varied or abrogated by a reduction of any share capital or purchase by us or redemption of any of our share capital in each case ranking as regards participation in the profits and assets of the company in priority to or equally with or after such dollar preference share.
Registrar and Paying Agent
HSBC Holdings plc, located at 8 Canada Square, London E14 5HQ, England, will act as the registrar for the dollar preference shares of each series. The Secretary's Office of HSBC Holdings plc, also located at 8 Canada Square, London E14 5HQ, England, will act as paying agent for the dollar preference shares of each series.
DESCRIPTION OF ADSs
General
The following is a summary of the material provisions of the Deposit Agreement to be entered into between us, The Bank of New York, as the depositary, and all holders and beneficial owners from time to time of American Depositary Receipts, or ADRs, issued under that agreement.
This summary is subject to and qualified in its entirety by reference to the Deposit Agreement, including the form of ADRs attached thereto. Terms used in this section and not otherwise defined will have the meanings set forth in the Deposit Agreement. Copies of the Deposit Agreement and our Articles of Association are available for inspection at the Corporate Trust Office of the depositary, located at 101 Barclay Street, New York, New York 10286. The Depositary's principal executive office is located at One Wall Street, New York, New York, 10286.
American Depositary Receipts
The Bank of New York will issue American Depositary Shares, or ADSs, evidenced by ADRs. Each ADS will represent ownership interests in one dollar preference share and the rights attributable to one dollar preference share that we will deposit with the custodian, which is currently The Bank of New York. Each ADS will also represent securities, cash or other property deposited with The Bank of New York but not distributed to holders of ADSs.
As The Bank of New York will actually be the holder of the underlying dollar preference shares, you will generally exercise the rights of a shareholder, through The Bank of New York. A Deposit Agreement among us, The Bank of New York and you, as an ADS holder, sets out the obligations of The Bank of New York. New York law governs the Deposit Agreement and the ADRs evidencing the ADSs.
You may hold ADSs either directly or indirectly through your broker or financial institution. If you hold ADSs directly, you are an ADS holder. This description assumes you hold your ADSs directly. If you hold the ADSs indirectly, you must rely on the procedures of your broker or financial institution to assert the rights of ADS holders described in this section. You should consult with your broker or financial institution to find out what those procedures are.
Share Dividends and Other Distributions
How Will You Receive Dividends and Other Distributions on the Dollar Preference Shares?
The Bank of New York will pay to you the cash dividends or other distributions it or the custodian receives on the dollar preference shares or other deposited securities, after deducting its fees and expenses. You will receive these distributions in proportion to the number of dollar preference shares your ADSs represent.
o Cash. The Bank of New York will convert any cash dividend or distribution we pay on the dollar preference shares, other than any dividend or distribution paid in US dollars, into US dollars if it can, in its reasonable judgment, do so on a reasonable basis and can transfer US dollars into the United States. If that is not possible, or if any approval from any government is needed and cannot, in the opinion of the depositary, be obtained or is not obtained, the Deposit Agreement allows The Bank of New York to distribute the foreign currency only to those ADS holders to whom it is possible to do so or to hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest.
Before making a distribution, The Bank of New York will deduct any withholding taxes that must be paid under applicable laws. It will distribute only whole US dollars and cents and will round any fractional amounts to the nearest whole cent. If the exchange rates fluctuate during a time when The Bank of New York cannot convert the foreign currency, you may lose some or all of the value of the distribution.
o Shares. The Bank of New York will distribute new ADSs representing any shares we distribute as a dividend or free distribution, if we request that The Bank of New York make this distribution and if we furnish The Bank of New York promptly with satisfactory evidence, including certificates or opinions, that it is legal to do so. The Bank of New York will only distribute whole ADSs. It will sell shares which would require it to issue a fractional ADS and distribute the net proceeds to the holders entitled to those shares. If The Bank of New York does not distribute additional cash or ADSs, each ADS will also represent the new shares.
o Rights to Purchase Additional Shares. If we offer holders of securities any rights, including rights to subscribe for additional shares, The Bank of New York may take actions necessary to make these rights available to you. We must first instruct The Bank of New York to do so and furnish it with satisfactory evidence, including certificates or opinions, that it is legal to do so. If we do not furnish this evidence and/or give these instructions, and The Bank of New York determines that it is practical to sell the rights, The Bank of New York may sell the rights and allocate the net proceeds to holders' accounts. The Bank of New York may allow rights that are not distributed or sold to lapse. In that case, you will receive no value for them.
If The Bank of New York makes rights available to you, upon instruction from you it will exercise the rights and purchase the shares on your behalf. The Bank of New York will then deposit the shares and issue ADSs to you. It will only exercise rights if you pay The Bank of New York the exercise price and any charges the rights require you to pay.
US securities laws may restrict the sale, deposit, cancellation, and transfer of the ADSs issued after exercise of rights. We have no obligation to file a registration statement under the Securities Act in order to make any rights available to you.
o Other Distributions. The Bank of New York will send to you anything else we distribute on deposited securities by any means The Bank of New York thinks is equitable and practical. If, in the depositary's opinion, it cannot make the distribution in that way, The Bank of New York may adopt another method of distribution that it considers to be equitable and practical--for example by public or private sale--and distribute the net proceeds, in the same way as it does with cash, or it may decide to hold what we distributed, in which case the ADSs will also represent the newly distributed property.
The Bank of New York is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holder. We will have no obligation to take any other action to permit the distribution of ADSs, shares, rights or anything else to ADS holders. This means that you may not receive the distribution we make on our dollar preference shares or any value for them if it is illegal or impractical for us to make them available to you.
Deposit, Withdrawal and Cancellation
How does the Depositary issue ADSs?
The Bank of New York will issue the ADSs that you are entitled to receive in the offer against deposit of the underlying dollar preference shares. The Bank of New York will issue additional ADSs if you or your broker deposit dollar preference shares with the custodian. You must also deliver evidence satisfactory to The Bank of New York of any necessary approvals of the governmental agency in the United Kingdom, if any, which is responsible for regulating currency exchange at that time. If required by The Bank of New York, you must in addition deliver an agreement transferring your rights as a shareholder to receive dividends or other property. Upon payment of its fees and of any taxes or charges, such as stamp taxes or stock transfer taxes, The Bank of New York will register the appropriate number of ADSs in the names you request in writing and will deliver the ADSs at its Corporate Trust Office to the persons you request in writing. The Bank of New York is not obliged to accept for deposit underlying dollar preference shares of a particular series, if, in its reasonable judgment, after consultation with us, such acceptance and maintenance or discharge of its obligations under the deposit agreement would be unusually onerous because of the terms of such preference shares. However, if the depositary has accepted any underlying preference shares of a particular series, it must accept for deposit further underlying preference shares of such series.
How do ADS holders cancel an ADS and obtain dollar preference shares?
You may submit a written request to withdraw dollar preference shares and turn in your ADRs evidencing your ADSs at the Corporate Trust Office of The Bank of New York. Upon payment of its fees and of any taxes or charges, such as stamp taxes or stock transfer taxes, The Bank of New York will, subject to any applicable restrictions, deliver the deposited securities underlying the ADSs to an account designated by you at the office of the custodian. At your request, risk and expense, The Bank of New York may deliver at its Corporate Trust Office any proceeds from the sale of any dividends, distributions or rights, which may be held by The Bank of New York.
Provided that all preconditions to withdrawal and cancellation of the deposited securities have been fulfilled, the depositary may only restrict the withdrawal of deposited securities in connection with:
o temporary delays caused by closing our transfer books or those of the depositary or the deposit of shares in connection with voting at a shareholders' meeting, or the payment of dividends;
o the payment of fees, taxes and similar charges;
o compliance with any U.S. or foreign laws or governmental regulations relating to the ADSs or to the withdrawal of deposited securities; or
o any other circumstances permitted under the general instructions to the SEC Form on which ADSs are registered.
This right of withdrawal may not be limited by any other provision of the deposit agreement.
Redemption of ADSs
If we exercise our right to redeem the dollar preference shares of a particular series, The Bank of New York will deliver for redemption dollar preference shares that have been deposited with The Bank of New York and that we have called for redemption, to the extent holders have surrendered ADRs evidencing ADSs representing such dollar preference shares. To the extent The Bank of New York receives them, it shall distribute entitlements with respect to the dollar preference shares being redeemed in accordance with the terms of the deposit agreement and shall issue new ADRs evidencing ADSs representing the dollar preference shares not so redeemed. If we redeem less than all of the deposited dollar preference shares of a particular series, The Bank of New York may determine which ADRs to call for surrender in any manner that it reasonably determines to be fair and practical.
Record Dates
Whenever any distribution of cash or rights, change in the number of dollar preference shares represented by ADSs or notice of a meeting of holders of shares or ADSs is made, The Bank of New York will fix a record date for the determination of the holders entitled to receive the benefits, rights or notice.
Voting of Deposited Securities
How do you vote?
If you are an ADS holder on a record date fixed by The Bank of New York, you may exercise the voting rights of the same class of securities as the dollar preference shares represented by your ADSs, but only if we ask The Bank of New York to ask for your instructions. Otherwise, you will not be able to exercise your right to vote unless you withdraw the dollar preference shares. However, you may not know about the meeting enough in advance to withdraw the dollar preference shares.
If we ask for your instructions, The Bank of New York, at our direction, will notify you of the upcoming meeting and arrange to deliver certain materials to you. The materials will:
o include all information included with the meeting notice sent by us to The Bank of New York;
o include a statement that if you were a holder on a specified record date, you will be entitled, subject to applicable restrictions, to instruct the depositary as to the exercise of voting rights; and
o explain how you may instruct The Bank of New York to vote the dollar preference shares or other deposited securities underlying your ADSs as you direct.
For instructions to be valid, The Bank of New York must receive them on or before the date specified in the instructions. The Bank of New York will try, to the extent practical, subject to applicable law and the provisions of our Articles of Association, to vote or have its agents vote the underlying dollar preference shares as you instruct. The Bank of New York will only vote, or attempt to vote, as you instruct.
We cannot assure you that you will receive the voting materials in time to ensure that you can instruct The Bank of New York to vote your dollar preference shares. In addition, The Bank of New York and its agents are not responsible for failing to carry out voting instructions or for the manner of carrying out voting instructions. This means that you may not be able to exercise your right to vote and there may be nothing you can do if your shares are not voted as you requested.
Inspection of Transfer Books
The Bank of New York will keep books for the registration and transfer of ADSs. These books will be open at all reasonable times for inspection by you, provided that you are inspecting the books for a purpose related to us or the Deposit Agreement or the ADSs.
Reports and Other Communications
The Bank of New York will make available for your inspection any reports or communications, including any proxy material, received from us, as long as these materials are received by The Bank of New York as the holder of the deposited securities and generally available to our shareholders. At our written request, The Bank of New York will also send copies of reports, notices and communications to you.
Fees and Expenses
The Bank of New York, as depositary, will charge any party depositing or withdrawing dollar preference shares or any party surrendering ADRs or to whom ADSs are issued or holders of ADRs, as applicable:
For: ADS holders must pay:
------------------------------------- -----------------------------------
o each issuance of an ADS, including o $5.00 or less per 100 ADSs or
as a result of a distribution of portion thereof
shares or rights or other property
or upon exercise of a warrant to
purchase an ADS
o each cancellation of an ADS, o $5.00 or less per 100 ADSs or
including if the Deposit Agreement portion thereof
terminates
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o transfer and registration of shares o registration or transfer fees on our share register from your name to the name of The Bank of New York or its nominee or the custodian or its nominee when you deposit or withdraw dollar preference shares
o distribution of securities o an amount equal to the fee that would have been charged for the issuance of ADSs if the securities were dollar preference shares being deposited
o conversion of foreign currency to o expenses of The Bank of New York U.S. dollars
o cable, telex and facsimile o expenses of The Bank of New York transmission expenses, if expressly provided in the deposit agreement
o servicing of dollar preference o expenses of The Bank of New York shares of any series or other deposited securities
o as necessary o taxes and governmental charges The Bank of New York or the custodian has to pay on any ADS or dollar preference share underlying a ADS, for example withholding taxes, stock transfer taxes or stamp duty taxes
Payment of Taxes
You will be responsible for any taxes or other governmental charges payable on your ADSs or on the deposited securities underlying your ADSs. The Bank of New York may deduct the amount of any taxes owed from any payments to you. It may also restrict or refuse the transfer of your ADSs or restrict or refuse the withdrawal of your underlying deposited securities until you pay any taxes owed on your ADSs or underlying securities. It may also sell deposited securities to pay any taxes owed. You will remain liable if the proceeds of the sale are not enough to pay the taxes. If The Bank of New York sells deposited securities, it will, if appropriate, reduce the number of ADSs held by you to reflect the sale and pay to you any proceeds, or send to you any property, remaining after it has paid the taxes.
Reclassifications, Recapitalisations and Mergers
If we:
o change the par or nominal value of any of the dollar preference shares;
o reclassify, split or consolidate any of the dollar preference shares;
o distribute securities on any of the dollar preference shares that are not distributed to you; or
o recapitalise, reorganise, merge, amalgamate, consolidate, sells our assets or take any similar action,
then the cash, shares or other securities received by The Bank of New York will become new deposited securities under the Deposit Agreement, and each ADS will automatically represent the right to receive a proportional interest in the new deposited securities. The Bank of New York may and will, if we ask it to, distribute some or all of the cash, dollar preference shares or other securities it received. It may also issue new ADSs or ask you to surrender your outstanding ADSs in exchange for new ADSs identifying the new deposited securities.
Amendment and Termination of the Deposit Agreement
How may the Deposit Agreement be amended?
We may agree with The Bank of New York to amend the Deposit Agreement and the ADSs without your consent for any reason. If the amendment adds or increases fees or charges, except for taxes, governmental charges, registration fees, telecommunications charges and delivery costs or other such expenses, or prejudices any substantial existing right of ADS holders, it will only become effective thirty days after The Bank of New York notifies you of the amendment. At the time an amendment becomes effective, you are considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by the agreement as amended. However, no amendment will impair your right to receive the deposited securities in exchange for your ADSs.
How may the Deposit Agreement be terminated?
The Bank of New York will terminate the Deposit Agreement if we ask it to do so, in which case it must notify you at least 90 days before termination. The Bank of New York may also terminate the agreement after notifying you if The Bank of New York informs us that it is electing to resign, and we have not appointed a new depositary bank within 90 days.
If any ADSs remain outstanding after termination, The Bank of New York will stop registering the transfer of ADSs, will stop distributing dividends to ADS holders and will not give any further notices or do anything else under the Deposit Agreement other than:
o collect dividends and distributions on the deposited securities;
o sell rights and other property offered to holders of deposited securities; and
o deliver dollar preference shares and other deposited securities upon cancellation of ADSs.
At any time after one year after termination of the Deposit Agreement, The Bank of New York may sell any remaining deposited securities by public or private sale. After that, The Bank of New York will hold the money it received on the sale, as well as any cash it is holding under the Deposit Agreement, for the pro rata benefit of the ADS holders that have not surrendered their ADSs. It will not invest the money and has no liability for interest. The Bank of New York's only obligations will be to account for the money and cash. After termination, our only obligations will be with respect to indemnification of, and to pay specified amounts to, The Bank of New York.
Any amendment or termination of the deposit agreement with respect to one series of ADSs will not necessarily occur concurrently with the amendment or termination of any other series of ADSs. The substitution of The Bank of New York by another depositary or the termination of the deposit agreement with respect to any series of ADSs representing dollar preference shares of a series that is a component of a unit will result in the substitution of the depositary or the termination of the deposit agreement with respect to all of the ADSs representing the dollar preference shares of all other series comprising the unit.
Limitations on Obligations and Liability to ADS Holders
The Deposit Agreement expressly limits our obligations and the obligations of The Bank of New York. It also limits our liability and the liability of The Bank of New York. We and The Bank of New York:
o are only obligated to take the actions specifically set forth in the Deposit Agreement, without negligence or bad faith;
o are not liable if either of them is prevented or delayed by law, any provision of our Articles of Association or circumstances beyond their control from performing their obligations under the agreement;
o are not liable if either of them exercises, or fails to exercise, discretion permitted under the agreement;
o have no obligation to become involved in a lawsuit or proceeding related to the ADSs or the Deposit Agreement on your behalf or on behalf of any other party unless they are indemnified to their satisfaction;
o may rely upon any advice of or information from any legal counsel, accountants, any person depositing shares, any ADS holder or any other person whom they believe in good faith is competent to give them that advice or information; and
o are not responsible for any failure to carry out any instructions to vote any of the ADSs, or for the manner or effect of any such vote made either with or without request, or for not exercising any right to vote, as long as such action or non-action is in good faith.
In the Deposit Agreement, we and The Bank of New York agree to indemnify each other under specified circumstances.
Requirements for Depositary Actions
Before The Bank of New York will issue or register the transfer of an ADS, make a distribution on an ADS, or permit withdrawal of dollar preference shares, The Bank of New York may require:
o payment of taxes, including stock transfer taxes or other governmental charges, and transfer or registration fees charged by third parties for the transfer of any dollar preference shares or other deposited securities, as well as the fees and expenses of The Bank of New York;
o production of satisfactory proof of the identity of the person presenting shares for deposit or ADSs upon withdrawal and of the genuineness of any signature or other information it deems necessary; and
o compliance with regulations The Bank of New York may establish from time to time consistent with the Deposit Agreement, including presentation of transfer documents.
The Bank of New York may refuse to deliver, transfer or register transfer of ADSs generally when the transfer books of The Bank of New York are closed or at any time if The Bank of New York or we think it advisable to do so.
Pre-Release of ADSs
In certain circumstances, subject to the provisions of the Deposit Agreement, The Bank of New York may issue ADSs before deposit of the underlying dollar preference shares. This is called a pre-release of ADSs. The Bank of New York may also deliver dollar preference shares prior to the receipt and cancellation of pre-released ADSs (even if those ADSs are canceled before the pre-release transaction has been closed out). A pre-release is closed out as soon as the underlying dollar preference shares are delivered to The Bank of New York. The Bank of New York may receive ADSs instead of the dollar preference shares to close out a pre-release. The Bank of New York may pre-release ADSs only under the following conditions:
o before or at the time of the pre-release, the person to whom the pre-release is being made must represent to The Bank of New York in writing that it or its customer, as the case may be, owns the dollar preference shares or ADSs to be deposited;
o the pre-release must be fully collateralised with cash or collateral that The Bank of New York considers appropriate; and
o The Bank of New York must be able to close out the pre-release on not more than five business days' notice.
The pre-release will be subject to whatever indemnities and credit regulations that The Bank of New York considers appropriate. In addition, The Bank of New York will limit the number of ADSs that may be outstanding at any time as a result of pre-release, although The Bank of New York may disregard the limit from time to time, if it thinks it is appropriate to do so.
Governing Law
The Deposit Agreement is governed by the law of the State of New York, without regard to conflicts of law principles.
TAXATION
This section discusses the material US federal income tax and UK tax consequences of the ownership of the dollar preference shares, ADSs and debt securities. This discussion applies to you only if you qualify for benefits under the current income tax convention between the United States and the United Kingdom (the "Current Treaty") and are a resident of the United States for the purposes of the Current Treaty and are not resident or ordinarily resident in the United Kingdom for UK tax purposes at any material time (an "Eligible US Holder").
This section does not purport to be a comprehensive description of all of the tax considerations that may be relevant to any particular investor. We have assumed that you are familiar with the tax rules applicable to investments in securities generally and with any special rules to which you may be subject. In particular, the discussion deals only with investors that will hold dollar preference shares, ADSs or debt securities as capital assets and does not address the tax treatment of investors that are subject to special rules, such as banks, insurance companies, dealers in securities or currencies, persons that control (directly or indirectly) 10 percent or more of our voting stock, persons that elect mark-to-market treatment, persons that hold dollar preference shares, ADSs or debt securities as a position in a straddle, conversion transaction, synthetic security, or other integrated financial transaction, and persons whose functional currency is not the US dollar.
The discussion is based on laws, treaties, judicial decisions and regulatory interpretations in effect on the date hereof, all of which are subject to change. On 24 July 2001, representatives of the United Kingdom and the United States signed a new income tax convention (which has been amended by a Protocol signed on 19 July 2002) (the "New Treaty"). As of the date hereof, the New Treaty has not yet been ratified by the United States Senate or the government of the United Kingdom, and there can be no assurance that it will enter into force. Thus, the New Treaty does not currently have the force and effect of law. The tax consequences to you of holding dollar preference shares, ADS or debt securities discussed below may change as a result of the New Treaty entering into force, such changes will include your entitlement to claim a special foreign tax credit in respect of dividends which is available under the terms of the Current Treaty, but will not be available under the New Treaty except for a limited period of time during which you may elect to apply the entirety of the Current Treaty in preference to the New Treaty. You should consult you own tax advisors as to the consequences of the New Treaty entering into force.
You generally will be entitled to benefits under the Current Treaty if you are:
o the beneficial owner of the dollar preference shares, ADSs or debt securities and of any dividends or interest that you receive;
o an individual resident of the United States, a US corporation, or a US partnership, estate, or trust (but only to the extent the income of the partnership, estate, or trust is subject to US taxation in the hands of a US resident person); and
o not also a resident of the United Kingdom for UK tax purposes.
If you hold dollar preference shares, ADSs or debt securities in connection with the conduct of business or the performance of personal services in the United Kingdom, then you will not be entitled to benefits under the Current Treaty. Special rules, including a limitation of benefits provision, apply in limited circumstances to dollar preference shares, ADSs or debt securities owned by an investment or holding company. This section does not discuss the treatment of holders described in the preceding two sentences.
This prospectus indicates that we may issue; undated debt securities; instruments which provide for payments at other than a fixed rate (including payments determined by reference to an index or formula); instruments which allow for the cancellation or suspension of their payment obligations at our option or under certain defined circumstances; instruments which provide for payments in a currency other than the currency in which such instruments are denominated; debt securities that are issued at a discount; debt securities that are redeemable prior to maturity; preference shares that are redeemable after a certain period; and instruments that are convertible into shares or securities. This section does not consider the tax consequences associated with an instrument that has any, or any combination, of these features and, accordingly, the general tax consequences described below may not be applicable to persons who hold an instrument that has any one or any combination of these features. Accordingly, the following discussion should be used for general information purposes only. You should consult your own tax advisor as to the tax consequences of holding any instrument issued under this prospectus. To the extent there is any inconsistency in the discussion of tax consequences to holders between this prospectus and the applicable prospectus supplement, holders should not rely on the tax consequences described in this prospectus.
The statements regarding US and UK tax laws set forth below are based on the laws in force on the date of this prospectus, which are subject to change. You should consult your own adviser as to the tax consequences of the purchase, ownership and disposition of dollar preference shares, ADSs or debt securities in light of your particular circumstances, including the effect of any state, local or other national laws.
For purposes of the Current Treaty and the US Internal Revenue Code of 1986, as amended (the "Code"), beneficial owners of ADSs will be treated as owners of the underlying shares. Deposits and withdrawals of shares in exchange for ADSs will not result in the realisation of gain or loss for US federal income tax purposes.
Taxation of Dollar Preference Shares, ADSs and Undated Debt Securities
Taxation of Dividends on Dollar Preference Shares and ADSs. If we pay dividends, you must include those dividends in your income when you receive them. The dividends will be treated as foreign source income. If you receive dividend payments denominated in pound sterling, you should determine the amount of your dividend income by converting pounds sterling into US dollars at the exchange rate in effect on the date of your (or the depositary's, in the case of ADSs) receipt of the dividend.
The UK tax system provides a tax credit to UK resident individuals receiving dividends from UK companies. The Current Treaty contains provisions that are designed to extend similar benefits to US investors, and the Internal Revenue Service has introduced procedures for claiming these benefits, which are described below.
In order to claim tax credit benefits under the Current Treaty, you must file an election on IRS Form 8833 to include in your income, as an additional dividend, an amount equal to the tax credit that is available to UK resident investors (currently one-ninth of the amount of the dividend that you receive in cash).
If you make this election, you will be treated for US tax purposes as if a UK tax equal to the amount of the credit had been withheld from the dividend. You will not be entitled to receive an additional cash payment from us or from the UK Inland Revenue. For example, if we pay you a dividend of 90, you may elect to include 100 in your income. If you make this election, you will be treated as having income of 100 that is subject to a UK withholding tax of 10. Subject to generally applicable limitations, this tax may be claimed as a credit against your US tax liability. Foreign tax credits will not be allowed for withholding taxes imposed in respect of certain short-term or hedged positions in securities or in respect of arrangements in which your expected economic profit is insubstantial.
If the New Treaty enters into force, you will no longer be entitled to the benefits discussed above and will therefore not be able to claim a foreign tax credit in respect of any dividends that we pay. For this purpose, the New Treaty will generally be effective for amounts credited on or after the first day of the second month next following the date on which instruments of ratification are exchanged by the United Kingdom and United States governments, except that you may continue to receive the special foreign tax credit benefits described above for a 12 month period from such date if you elect to apply the Current Treaty in its entirety for such period.
Taxation of Interest on Undated Debt Securities. For US federal income tax purposes, the securities will be treated as equity of the issuer, and payments of interest on the securities will be treated as dividends. In accordance with their treatment as dividends for US federal income tax purposes, payments of interest on the securities generally will be includible in your income on the date of receipt without regard to your method of tax accounting. You should determine the amount of your income by converting into US dollars at the exchange rate in effect on the date you receive any interest payment not denominated in US Dollars.
Capital Gains. You will not ordinarily be liable for UK taxation on any capital gain realised on the disposal (including redemption) of a dollar preference share or ADS unless you carry on a trade, profession or vocation in the United Kingdom through a branch or agency and such dollar preference share or ADS is or has been used, or acquired, for the purposes of such trade, profession or vocation, or such branch or agency.
Upon the sale or exchange of a dollar preference share, ADS or undated debt security, if you are an Eligible US Holder you will recognise capital gain or loss for US federal income tax purposes in an amount equal to the difference between the amount realised and your tax basis in the dollar preference shares or ADS. If you acquired a dollar preference share, ADS or undated debt security as part of a unit comprising more than one dollar preference share, ADS or undated debt security your tax basis will generally equal the relevant fair market value of such dollar preference share, ADS or undated debt security at the time you acquired the unit. Such gain or loss generally will be long-term capital gain or loss if you have held the dollar preference shares, ADSs or undated debt securities for more than one year at the time of deposition. The net amount of long-term capital gain realised by an individual holder generally is subject to taxation at a maximum rate of 20 percent. A holder's ability to offset capital losses against ordinary income is limited.
Our redemption of a dollar preference share will constitute a taxable transaction on which an Eligible US Holder generally will recognise capital gain or loss for US federal income tax purposes (assuming that such holder does not own, and is not deemed to own, any other equity interest in us). The amount of the gain or loss will be equal to the difference between (i) the total redemption price (including amounts deemed to be received in respect of the associated UK tax credit but excluding any amounts treated as dividends for US federal income tax purposes) and (ii) the tax basis of the dollar preference share or ADS redeemed. Eligible US Holders are advised to consult their own tax advisers as to the US federal income tax consequences of a redemption of dollar preference shares.
UK Stamp Taxes. In practice, no UK stamp duty should be payable on the transfer of an ADS or beneficial ownership of an ADS, provided that the ADS and any separate instrument of transfer or written agreement to transfer is executed and remains at all times outside the United Kingdom. No UK stamp duty reserve tax will be payable in respect of an agreement to transfer ADSs or beneficial ownership of ADSs.
UK stamp duty or stamp duty reserve tax will normally be payable on or in respect of respectively, transfers of or agreements to transfer, the dollar preference shares (not being ADSs), and accordingly if you acquire or intend to acquire dollar preference shares you are advised to consult your own professional adviser in relation to UK stamp duty and stamp duty reserve tax.
Whether any UK stamp duty or stamp duty reserve tax will be payable on the issue of dollar preference shares to the custodian or depository will depend upon the terms relating to the particular series of shares; the prospectus supplement relating to any particular series of shares will summarise the applicable UK stamp duty or stamp duty reserve tax treatment of such an issue.
Taxation of the Debt Securities
UK Taxation of Payments of Interest. Payments of interest on a debt security should be exempt from withholding or deduction for or on account of UK tax under the provisions of UK tax law relating to "quoted Eurobonds" provided that the debt securities are listed on a "recognised stock exchange" within the meaning of section 841 of the Income and Corporation Taxes Act 1988. The New York Stock Exchange and the London Stock Exchange are currently recognised for these purposes. Accordingly, interest payments made on the debt securities, whether in global or definitive form, will be payable without withholding or deduction for or on account of UK income tax provided the debt securities are listed on a "recognised stock exchange".
In other cases, and in particular if the debt security is not listed on a "recognised stock exchange", interest would be paid after deduction of UK income tax at the rate of 20 per cent, although if you are an Eligible US Holder you should normally be eligible to recover in full any UK tax withheld from payments of interest to which you are beneficially entitled by making a claim under the Treaty. Alternatively, you may make such a claim in advance of a payment of interest whereupon the Inland Revenue may, if it accepts the claim, authorise subsequent payments to be made to you without withholding of UK income tax. Claims for repayment must be made within six years of the end of the UK year of assessment (generally April 5 in each year) to which the income relates and must be accompanied by the original statement showing the amount of income tax deducted that was provided by us (or any nominee holding the debt security your behalf) when the interest payment was made.
Payments of interest on a debt security will constitute UK source income for UK tax purposes and, as such, remain subject to UK income tax by direct assessment even though paid without deduction of any UK withholding tax. However, an Eligible US Holder should not be subject to such income tax. Moreover, interest with a UK source which is received without dedecution or withholding on account of UK tax will not be chargeable to UK tax in the hands of a holder of a debt security (other than certain trustees) who is not UK resident for tax purposes unless that holder carries on a trade, profession or vocation in the UK through a UK branch or agency in connetion with which the interest is received or to which the debt security is attributable. Furthermore, there are exemptions for interest received through certain categories of UK agent (such as some brokers and investment managers).
As indicated under "Description of Subordinated Debt Securities--Redemption", we will be entitled to redeem debt securities in certain circumstances in the event the payment of interest on such debt securities would be treated as a distribution for UK tax purposes. Payments of interest on a debt security will not normally be treated as distributions for UK tax purposes, provided that (i) the debt security is not at the time of payment held by a company which is not resident in the United Kingdom for UK tax purposes and which is either a subsidiary undertaking of ours or is put in funds (directly or indirectly) by us or such a subsidiary undertaking, (ii) the interest or other consideration given by us for the use of the principal secured by the debt security does not represent more than a reasonable commercial return for the use of that principal, (iii) any interest or other payment in respect of the debt security is not to any extent dependent on the results of our business or any part of it, or (iv) in the case of a debt security which carries the right to convert directly or indirectly into our shares or securities, such debt security is either quoted on a recognised stock exchange or is issued on terms reasonably comparable with the terms of issue of securities so quoted.
US Taxation of Payments of Interest (Excluding Interest on Undated Debt Securities). If you are an Eligible US Holder you will be required to include payments of interest on a debt security as ordinary interest income at the time that such payments accrue or are received (in accordance with your method of tax accounting). In the case of debt securities denominated in a currency other than US dollars, the amount of interest income you will be required to realise if you use the cash method of accounting for tax purposes will be the US dollar value of the foreign currency payment based on the exchange rate in effect on the date of receipt, regardless of whether you convert the payment into US dollars.
If you use the accrual method of accounting, you generally must translate interest income at the average exchange rate in effect during the interest accrual period (or with respect to an interest accrual period that spans two taxable years, at the average exchange rate for the partial period within the taxable year). Alternatively, you may elect to translate all interest income on foreign currency-denominated debt obligations at the spot rate on the last day of the accrual period (or the last day of the taxable year, in the case of an accrual period that includes more than one taxable year) or on the date the interest payment is received if such date is within five days of the end of the accrual period. If you make such an election you must apply it consistently to all debt instruments from year to year and cannot change the election without the consent of the Internal Revenue Service. If you use the accrual method of accounting you will recognise foreign currency gain or loss on the receipt of a foreign currency interest payment if the exchange rate in effect on the date the payment is received differs from the rate applicable to a previous accrual of that interest income. Any such foreign currency gain or loss will be treated as ordinary income or loss and generally will not be treated as an adjustment to interest income received on the debt securities.
UK Taxation of Purchase, Sale and Retirement of Debt Securities.You will not be liable for UK taxation on capital gains realised on the sale or other disposal or redemption or conversion of such a debt security unless you carry on a trade, profession or vocation in the United Kingdom through a branch or agency and such debt security is or has been used or acquired for the purpose of such trade, profession or vocation, or such branch or agency.
Under the UK loan relationships legislation, certain corporate investors holding bonds (such as debt securities) will be charged to tax, as income, depending on their "authorised" accounting method, on any accruing premium, discount or gain as well as accruing interest during the period of ownership. If you are an individual you will not be taxed under these provisions and if you are not a corporation which is a UK resident for tax purposes you will not be subject to this legislation unless you are carrying on a trade or business through a branch or agency in the UK and you hold the bonds in connection with such trade or business. This legislation should, therefore, not apply to you if you are an Eligible US Holder.
US Taxation of Purchase, Sale and Retirement of Debt Securities (Excluding Undated Debt Securities). Your basis in a debt security for US federal income tax purposes generally will equal the cost of such debt security to you, increased by any amounts includible in income by you as original issue discount and reduced by any amortised premium and any payments other than qualified stated interest (as described below). In the case of a debt security denominated in a foreign currency, the cost of such debt security will be the US dollar value of the foreign currency purchase price on the date of purchase calculated at the exchange rate in effect on the date of purchase. In the case of a debt security that is denominated in a foreign currency and traded on an established securities market, a cash basis taxpayer (or an accrual basis taxpayer that makes a special election) will determine the US dollar value of the cost of such debt security by translating the amount paid at the exchange rate on the settlement date of the purchase. The amount of any subsequent adjustments to your tax basis in a debt security in respect of foreign currency-denominated original issue discount and premium will be determined in the manner described below for such adjustments. The conversion of US dollars to a foreign currency and the immediate use of that currency to purchase a debt security generally will not result in taxable gain or loss for an Eligible US Holder.
Upon the sale, exchange or retirement of a debt security, you generally will recognise gain or loss equal to the difference between the amount realised on the sale, exchange or retirement (less any accrued interest, which will be taxable as such) and your tax basis in the debt security. If you receive foreign currency in respect of the sale, exchange or retirement of a debt security, the amount realised generally will be the US dollar value of the foreign currency received, calculated at the exchange rate in effect at the time of the sale, exchange or retirement. In the case of a debt security that is denominated in a foreign currency and is traded on an established securities market, if you are a cash basis taxpayer (or an accrual basis taxpayer that makes a special election) you will determine the US dollar value of the amount realised by translating such amount at the exchange rate on the settlement date of the sale, exchange or retirement.
If you are an accrual basis taxpayer the special election in respect of the purchase and sale of debt securities traded on an established securities market discussed in the two preceding paragraphs must be applied consistently to all debt instruments that you own from year to year and cannot be changed without the consent of the Internal Revenue Service.
Except as discussed below with respect to foreign currency gain or loss (and, in the case of secondary market purchasers, with respect to market discount), any gain or loss that you recognise on the sale, exchange or retirement of a debt security generally will be long-term capital gain or loss if you have held the debt security for more than one year at the time of disposition. If you are an individual holder, the net amount of long-term capital gain generally will be subject to taxation at a maximum rate of 20 percent. Your ability to offset capital losses against ordinary income is limited.
Notwithstanding the foregoing, any gain or loss that you recognise on the sale, exchange or retirement of a debt security denominated in a foreign currency generally will be treated as ordinary income or loss to the extent that such gain or loss ("exchange gain or loss") is attributable to changes in exchange rates during the period in which you held the debt security. Such gain or loss generally will not be treated as an adjustment to interest income on the debt security.
US Taxation of Original Issue Discount. If you own debt securities issued with original issue discount you generally will be subject to the special tax accounting rules provided for such obligations by the Code. Eligible US Holders of such debt securities should be aware that, as described in greater detail below, they generally must include original issue discount in ordinary gross income for United States federal income tax purposes as it accrues, in advance of the receipt of cash attributable to that income.
If we issue debt securities at a discount from their stated redemption price at maturity, and the discount is equal to or more than the product of one-fourth of one percent (0.25%) of the stated redemption price at maturity of the debt securities multiplied by the number of full years to their maturity, the debt securities will have "original issue discount" equal to the difference between the issue price and their stated redemption price at maturity. Throughout the remainder of this discussion, we will refer to debt securities bearing original issue discount as "discount securities." The "issue price" of the debt securities will be the first price at which a substantial amount of the debt securities are sold to the public (i.e., excluding sales of debt securities to underwriters, placement agents, wholesalers or similar persons). The stated redemption price at maturity of a discount security is the total of all payments to be made under the discount security other than "qualified stated interest". The term "qualified stated interest" generally means stated interest that is unconditionally payable in cash or property (other than debt instruments of the issuer) at least annually during the entire term of a discount security at a single fixed rate of interest or based on certain indices.
In general, if you are the beneficial owner of a discount security having a maturity in excess of one year, whether you use the cash or the accrual method of tax accounting, you will be required to include in ordinary gross income the sum of the "daily portions" of original issue discount on that debt security for all days during the taxable year that you own the debt security. The daily portions of original issue discount on a discount security are determined by allocating to each day in any accrual period a ratable portion of the original issue discount allocable to that accrual period. Accrual periods may be any length and may vary in length over the term of a discount security, provided that each accrual period is no longer than one year and each scheduled payment of principal or interest occurs on the final day or on the first day of an accrual period. If you are an initial holder, the amount of original issue discount on a discount security allocable to each accrual period is determined by:
(i) multiplying the "adjusted issue price" (as defined below) of the debt security by a fraction, the numerator of which is the annual yield to maturity of the debt security and the denominator of which is the number of accrual periods in a year; and
(ii) subtracting from that product the amount (if any) payable as qualified stated interest allocable to that accrual period.
In the case of a discount security that is a floating rate debt security, both the "annual yield to maturity" and the "qualified stated interest" will be determined for these purposes as though the debt security will bear interest in all periods at a fixed rate generally equal to the rate that would be applicable to interest payments on the debt security on its date of issue or, in the case of certain floating rate debt securities, the rate that reflects the yield that is reasonably expected for the debt security. (Additional rules may apply if interest on a floating rate debt security is based on more than one interest index.) The "adjusted issue price" of a discount security at the beginning of any accrual period generally will be the sum of its issue price (including accrued interest, if any) and the amount of original issue discount allocable to all prior accrual periods, reduced by the amount of all payments other than qualified stated interest payments (if any) made with respect to such discount security in all prior accrual periods. For this purpose, all payments on a discount security (other than qualified stated interest) generally will be viewed first as payments of previously accrued original issue discount (to the extent thereof), with payments considered made for the earliest accrual periods first, and then as payments of principal. The "annual yield to maturity" of a debt security is the discount rate (appropriately adjusted to reflect the length of accrual periods) that causes the present value on the issue date of all payments on the debt security to equal the issue price. As a result of this "constant yield" method of including original issue discount income, the amounts you will be required to include in income in respect of a discount security denominated in US dollars will be lesser in the early years and greater in the later years than the amounts that would be includible on a straight-line basis.
You may make an irrevocable election to apply the constant yield method described above to determine the timing of inclusion in income of your entire return on a discount security (i.e., the excess of all remaining payments to be received on the discount security, including payments of qualified stated interest, over the amount you paid for such discount security).
In the case of a discount security denominated in a foreign currency, you should determine the US dollar amount includible in income as original issue discount for each accrual period by:
(i) calculating the amount of original issue discount allocable to each accrual period in the foreign currency using the constant yield method described above; and
(ii) translating the foreign currency amount so derived at the average exchange rate in effect during the interest accrual period (or with respect to an interest accrual period that spans two taxable years, at the average exchange rate for the partial period within the taxable year).
Alternatively, you may translate the foreign currency amount so derived at the spot rate on the last day of the accrual period (or the last day of the taxable year, in the case of an accrual period that includes more than one taxable year) provided that you have made the election described under "Payments of Interest" above. Because exchange rates may fluctuate, if you are the holder of a discount security denominated in a foreign currency you may recognise a different amount of original issue discount income in each accrual period than you would be required to recognise if you were the holder of a similar discount security denominated in US dollars. Also, as described above, exchange gain or loss will be recognised when the original issue discount is paid or when you dispose of the discount security.
If you purchase a discount security from a previous holder at a cost less than the remaining redemption amount (as defined below) of the debt security, you also generally will be required to include in gross income the daily portions of original issue discount, calculated as described above. However, if you acquire the discount security at a price greater than its adjusted issue price, you may reduce your periodic inclusions of original issue discount to reflect the premium paid over the adjusted issue price. The "remaining redemption amount" for a discount security is the total of all future payments to be made on the debt security other than payments of qualified stated interest.
Certain of the discount securities may provide for redemption prior to their maturity date, either at our option or at the option of the holder. Discount securities containing such features may be subject to rules that differ from the general rules discussed above. Purchasers of discount securities with such features should carefully review the applicable prospectus supplement and should consult their own tax advisors with respect to such features since the tax treatment of such discount securities will depend on their particular terms.
UK Stamp Taxes in Relation to Debt Securities. The UK stamp duty and stamp duty reserve tax treatment of debt securities will depend upon their terms and conditions and upon the circumstances pertaining to their issue; the prospectus supplement relating to any particular series of debt securities will summarise the applicable UK stamp duty and stamp duty reserve tax treatment.
Proposed EU Withholding Tax Directive. The European Union is currently considering proposals for a new directive regarding the taxation of savings income. According to the most recently available information, it is proposed that, subject to a number of important conditions being met, member states will be required to provide to the tax authorities of other member states details of payments of interest or other similar income paid by a paying agent within its jurisdiction to an individual resident in that other member state, subject to the right of certain member states, namely Luxembourg, Belgium and Austria, to opt instead for a withholding tax for a transitional period in relation to such payments. The transitional period will be for 7 years, and the withholding tax will be 15% for the first three years and 20% for the remaining time. The withholding tax paid by the recipient of the savings income will be credited by the member state of residence of the individual against its tax liability in that state, and any tax in excess of that liability will be repaid to the individual. The proposals are not yet final, and they may be subject to further amendment and/or clarification.
UK Inheritance Tax in Relation to Dollar Preference Shares, ADSs and Debt Securities
A dollar preference share, ADS or debt security held by an individual whose domicile is determined to be the United States for purposes of the United States-United Kingdom Double Taxation Convention relating to estate and gift taxes (the "Estate Tax Treaty") and who is not for such purposes a national of the United Kingdom will not, provided any US federal estate or gift tax chargeable has been paid, be subject to UK inheritance tax on the individual's death or on a lifetime transfer of the dollar preference share, ADS or debt security except in certain cases where the dollar preference share, ADS or debt security (i) is comprised in a settlement (unless, at the time of the settlement, the settlor was domiciled in the United States and was not a national of the United Kingdom), (ii) is part of the business property of a UK permanent establishment of an enterprise, or (iii) pertains to a UK fixed base of an individual used for the performance of independent personal services. In such cases, the Estate Tax Treaty generally provides a credit against US federal tax liability for the amount of any tax paid in the United Kingdom in a case where the dollar preference share, ADS or debt security is subject both to UK inheritance tax and to US federal estate or gift tax.
US Information Reporting and Backup Withholding
The paying agent will be required to file information returns with the IRS with respect to payments made to certain Eligible US Holders. In addition, dividends, interest and proceeds from the sale or other disposition of dollar preferred shares, ADSs or debt securities that are paid in the United States or through a US-related financial intermediary may be subject to information reporting and backup withholding unless the recipient is a corporation, other exempt recipient or a taxpayer that provides an identification number and certifies that no loss of exemption from backup withholding has occurred.
PLAN OF DISTRIBUTION
Initial Offering and Sale of Securities
We may sell the securities (i) through underwriters, (ii) through dealers,
(iii) through agents or (iv) directly to purchasers. The prospectus supplement
with respect to the securities being offered thereby will set forth the terms of
the offering of such securities, including the names of any underwriters,
dealers or agents involved in the sale of such securities, the principal amounts
or number of securities, as the case may be, to be purchased by any such
underwriters and any applicable commissions or discounts. The net proceeds to us
will also be set forth in the prospectus supplement.
If underwriters are used in the sale, the securities being sold will be acquired by the underwriters for their own account and distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. Unless otherwise set forth in the prospectus supplement with respect to the securities being offered thereby, the obligations of the underwriters to purchase such securities will be subject to certain conditions precedent and the underwriters will be obligated to purchase all such securities if any of such securities are purchased. The initial public offering price of any securities and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If dealers are used in the sale, unless otherwise indicated in the prospectus supplement with respect to the securities being offered thereby, we will sell such securities to the dealers as principals. The dealers may then resell such securities to the public at varying prices to be determined by such dealers at the time of resale.
Securities may also be sold through agents designated by us from time to time or directly by us. Any agent involved in the offering and sale of the securities in respect of which this prospectus is being delivered will be named, and any commissions payable by us to such agent will be set forth, in the prospectus supplement with respect to such securities. Unless otherwise indicated in such prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment.
Underwriters, dealers and agents who participate in the distribution of the securities may be entitled under agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the underwriters, dealers or agents may be required to make in respect thereof. Underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for, HSBC in the ordinary course of business.
Any underwriter, dealer or agent in connection with an offering of securities will represent and agree that (i) it has not offered and, prior to the expiry of six months from the closing of such offering, will not offer the securities in the United Kingdom in circumstances which have resulted or would result in an offer to the public in the United Kingdom for the purposes of the Public Offers of Securities Regulations 1995, (ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000 with respect to anything done by it in relation to such securities in, from or otherwise involving the United Kingdom and (iii) it has only 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 Act 2000) in connection with the issue or sale of such securities in circumstances in which section 21(1) of the Financial Services and Markets Act 2000 does not apply to us.
HSBC Securities (USA) Inc., an affiliate of ours, may be a managing underwriter, underwriter, market-maker or agent in connection with any offer or sale of the securities. Each offering of the securities will be conducted in compliance with any applicable requirements of Rule 2720 of the Conduct Rules of the National Association of Securities Dealers Regulation, Inc. regarding the underwriting by HSBC Securities (USA) Inc. of the securities of an affiliate. In addition, HSBC Securities (USA) Inc. may use this prospectus in connection with offers and sales related to market-making activities. HSBC Securities (USA) Inc. may act as principal or agent in any of these transactions. These sales will be made at negotiated prices related to the prevailing market prices at the time of sale.
In compliance with NASD guidelines the maximum compensation to any underwriters or agents in connection with the sale of any securities pursuant to this prospectus and any applicable prospectus supplement will not exceed 8% of the aggregate total offering price to the public of such securities as set forth on the cover page of the applicable prospectus supplement; however, it is anticipated that the maximum compensation paid will be significantly less than 8%.
Market-Making Resales
This prospectus may be used by HSBC Securities (USA) Inc. in connection with offers and sales of the securities in market-making transactions. In a market-making transaction, HSBC Securities (USA) Inc. may resell a security it acquires from other holders, after the original offering and sale of the security. Resales of this kind may occur in the open market or may be privately negotiated, at prevailing market prices at the time of resale or at related or negotiated prices. In these transactions, HSBC Securities (USA) Inc. may act as principal, or agent, including as agent for the counterparty in a transaction in which HSBC Securities (USA) Inc. acts as principal, or as agent for both counterparties in a transaction in which HSBC Securities (USA) Inc. does not act as principal. HSBC Securities (USA) Inc. may receive compensation in the form of discounts and commissions, including from both counterparties in some cases. Other affiliates of HSBC Holdings plc may also engage in transactions of this kind and may use this prospectus for this purpose.
The aggregate initial offering price specified on the cover of the accompanying prospectus supplement relates to the initial offering of the securities described in the prospectus supplement. This amount does not include securities sold in market-making transactions. The latter include securities to be issued after the date of this prospectus, as well as securities previously issued.
HSBC Holdings plc does not expect to receive any proceeds from market-making transactions. HSBC Holdings plc does not expect that HSBC Securities (USA ) Inc. or any other affiliate that engages in these transactions will pay any proceeds from its market-making resales HSBC Holdings plc.
Information about the trade and settlement dates, as well as the purchase price, for a market-making transaction will be provided to the purchaser in a separate confirmation of sale.
Unless we or any agent informs you in your confirmation of sale that your security is being purchased in its original offering and sale, you may assume that you are purchasing your security in a market-making transaction.
Matters Relating to Initial Offering and Market-Making Resales
Each series of securities will be a new issue, and there will be no established trading market for any security prior to its original issue date. We may choose not to list a particular series of securities on a securities exchange or quotation system. We have been advised by HSBC Securities (USA) Inc. that it intends to make a market in the securities, and any underwriters to whom we sell securities for public offering or broker-dealers may also make a market in those securities. However, neither HSBC Securities (USA) Inc. nor any underwriter or broker-dealer that makes a market is obligated to do so, and any of them may stop doing so at any time without notice. We cannot give any assurance as to the liquidity of the trading market for the securities.
Unless otherwise indicated in the applicable prospectus supplement or confirmation of sale, the purchase price of the securities will be required to be paid in immediately available funds in New York City.
In this prospectus or any accompanying prospectus supplement, the terms "this offering" means the initial offering of securities made in connection with their original issuance. This term does not refer to any subsequent resales of securities in market-making transactions.
LEGAL OPINIONS
Certain legal matters in connection with the securities to be offered hereby will be passed upon for us by Cleary, Gottlieb, Steen & Hamilton, London, England, our US counsel and by Norton Rose, London, England, our English solicitors. Cleary, Gottlieb, Steen & Hamilton may rely as to all matters of English law on Norton Rose. Norton Rose may rely as to all matters of New York law on Cleary, Gottlieb, Steen & Hamilton.
EXPERTS
The consolidated financial statements of HSBC as at 31 December 2001 and 31 December 2000 and for each of the years ended 31 December 2001, 2000 and 1999 appearing in the 2001 Form 20-F, as amended, have been audited by KPMG Audit plc, as set forth in their report thereon included therein and incorporated herein by reference.
No dealer, salesperson or any other person has been authorised to give any information or to make any representations other than those contained or incorporated by reference in this prospectus in connection with the offer made by this prospectus, and, if given or made, such information or representations must not be relied upon as having been authorised by HSBC Holdings or any of the underwriters. Neither the delivery of this prospectus nor any sale made hereunder shall under any circumstance create an implication that there has been no change in the affairs of HSBC Holdings since the date hereof. This prospectus does not constitute an offer or solicitation by anyone in any state in which such offer or solicitation is not authorised or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
All dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers' obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS..........................................................2 LIMITATIONS ON ENFORCEMENT OF US LAWS AGAINST US, OUR MANAGEMENT AND OTHERS....2 WHERE YOU CAN FIND MORE INFORMATION ABOUT US...................................3 HSBC...........................................................................4 USE OF PROCEEDS................................................................5 RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE SHARE DIVIDENDS....5 CONSOLIDATED CAPITALISATION AND INDEBTEDNESS OF HSBC HOLDINGS PLC..............6 DESCRIPTION OF SUBORDINATED DEBT SECURITIES....................................8 DESCRIPTION OF DOLLAR PREFERENCE SHARES.......................................20 DESCRIPTION OF ADSs...........................................................25 TAXATION......................................................................32 PLAN OF DISTRIBUTION..........................................................39 LEGAL OPINIONS................................................................40 EXPERTS.......................................................................40 |
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HSBC Holdings plc
Subordinated Debt Securities and
Non-Cumulative
Dollar-denominated Preference Shares
American Depositary Shares
PROSPECTUS
2002
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 8. Indemnification of Directors and Officers
Article 168.1 of the Registrant's Articles of Association provides:
"Subject to the provisions of the Companies Act 1985 (and certain other statutes), but without prejudice to any indemnity to which he may be otherwise entitled, every Director, alternate Director, Secretary or other officer of the Company shall be entitled to be indemnified out of the assets of the Company against all costs, charges, losses, damages and liabilities incurred by him in the actual or purported execution and/or discharge of his duties or exercise of his powers or otherwise in relation thereto, including (without prejudice to the generality of the foregoing) any liability incurred defending any proceedings (whether civil or criminal) which relate to anything done or omitted or alleged to have been done or omitted by him as an officer or employee of the Company and in which judgment is given in his favour or in which he is acquitted or which are otherwise disposed of without any finding or admission of any material breach of duty on his part or in connection with any application in which relief is granted to him by any court of competent jurisdiction from liability for negligence, default, breach of duty or breach or trust in relation to the affairs of the Company".
The relevant provisions of the Companies Act 1985 and other statutes are sections 310 and 727 of the Companies Act 1985 of Great Britain. Section 310 provides:
"(1) This section applies to any provision, whether contained in a company's articles or in any contract with the company or otherwise, for exempting any officer of the company or any person (whether an officer or not) employed by the company as auditor from, or indemnifying him against, any liability which by virtue of any rule of law would otherwise attach to him in respect of any negligence, default, breach of duty or breach of trust of which he may be guilty in relation to the company.
(2) Except as provided by the following subsection, any such provision is void.
(3) This section does not prevent a company:
(a) from purchasing and maintaining for any such officer or auditor insurance against any such liability, or
(b) from indemnifying any such officer or auditor against any liability incurred by him:
(i) in defending any proceedings (whether civil or criminal) in which judgment is given in his favor or he is acquitted, or
(ii) in connection with any application under section 144(3) or (4) (acquisition of shares by innocent nominee) or section 727 (general power to grant relief in case of honest and reasonable conduct) in which relief is granted to him by the court."
Section 727 provides:
"(1) If in any proceedings for negligence, default, breach of duty or breach of trust against an officer of a company or a person employed by a company as auditor (whether he is or is not an officer of the company) it appears to the court hearing the case that that officer or person is or may be liable in respect of the negligence, default, breach of duty or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case (including those connected with his appointment) he ought fairly to be excused for the negligence, default, breach of duty or breach of trust, that court may relieve him, either wholly or partly, from his liability on such terms at it thinks fit.
(2) If any such officer or person as above-mentioned has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the court for relief; and the court on the application has the same power to relieve him as under this section it would have had if it had been a court before which proceedings against that person for negligence, default, breach of duty or breach of trust had been brought.
(3) Where a case to which subsection (1) applies is being tried by a judge with a jury, the judge, after hearing the evidence, may, if he is satisfied that the defendant or defender ought in pursuance of that subsection to be relieved either in whole or in part from the liability sought to be enforced against him, withdraw the case in whole or in part from the jury and forthwith direct judgment to be entered for the defendant or defender on such terms as to costs or otherwise as the judge may think proper."
Item 9. Exhibits
Number Description
------ -----------------------------------------------------------------------
1 Form of Underwriting Agreement.
3 Memorandum and Articles of Association of the Registrant.
4.1 (a) Form of Indenture relating to the dated debt securities.
(b) Form of Indenture relating to the undated debt securities.
4.4 Form of share warrant representing dollar preference shares in bearer
form.
4.5 Form of share certificate representing dollar preference shares in
registered form.
4.6 (a) Form of Debt Security Deposit Agreement.
(b) Form of ADR Deposit Agreement.
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton, US counsel to the
Registrant.
5.2 Opinion of Norton Rose, English solicitors to the Registrant.
23.1 Consent of KPMG Audit plc.
23.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included in 5.1 above).
23.3 Consent of Norton Rose (included in 5.2 above).
24 Powers of attorney.
25 Statement of Eligibility and Qualification of The Bank of New York as
Trustee on Form T-1.
Item 10. Undertakings
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(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the Registration Statement to include any financial statements required by Rule 3-19 of this chapter at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided, that the Registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to the Registration Statement, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, HSBC Holdings plc certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in London, England, on 25 November 2002.
HSBC HOLDINGS PLC
By: /s/ Ralph G Barber
Name: Ralph G Barber
Title: Secretary
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on 25 November 2002.
By:
Name: Sir John Bond*
Title: Group Chairman and Director
By:
Name: The Baroness Dunn, DBE*
Title: Deputy Chairman and senior non-
executive Director
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By:
Name: Sir Brian Moffat, OBE*
Title: Deputy Chairman and senior
independent non-executive Director
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By: Name: Sir Keith Whitson* Title: Group Chief Executive and Director By: Name: D J Flint* Title: Group Finance Director and Director By: Name: The Lord Butler, GCB, CVO* Title: Director By: Name: R K F Ch'ien, CBE Title: Director By: Name: C F W de Croisset Title: Director By: Name: W R P Dalton Title: Director By: Name: D G Eldon* Title: Director By: Name: W K L Fung, OBE Title: Director By: Name: S K Green* Title: Director By: Name: S Hintze* Title: Director By: Name: A W Jebson* Title: Director By: Name: Sir John Kemp-Welch Title: Director By: Name: The Lord Marshall* Title: Director By: Name: Sir Mark Moody-Stuart, KCMG* Title: Director By: Name: S W Newton Title: Director |
By: Name: H Sohmen, OBE* Title: Director By: Name: C Taylor Title: Director By: Name: Sir Brian Williamson, CBE Title: Director |
By: /s/ Douglas Flint Name: Douglas Flint Title: *Attorney-in-fact |
By: /s/ Philip Toohey
Name: Philip Toohey
Title: Authorized Representative
in the United States
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EXHIBIT INDEX
Number Description Page
------ --------------------------------------------------------------- ----
1 Form of Underwriting Agreement.
3 Memorandum and Articles of Association of the Registrant.
4.1 (a) Form of Indenture relating to the dated debt securities.
(b) Form of Indenture relating to the undated debt securities.
4.4 Form of share warrant representing dollar preference shares
in bearer form.
4.5 Form of share certificate representing dollar preference
shares in registered form.
4.6 (a) Form of Debt Security Deposit Agreement.
(b) Form of ADR Deposit Agreement.
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton, US counsel to
the Registrant.
5.2 Opinion of Norton Rose, English solicitors to the Registrant.
23.1 Consent of KPMG Audit plc.
23.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included in
5.1 above).
23.3 Consent of Norton Rose (included in 5.2 above).
24 Powers of attorney.
25 Statement of Eligibility and Qualification of The Bank of New
York as Trustee on Form T-1.
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[Form of prospectus supplement for dated debt securities]
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Prospectus Supplement
____________, 20__
(To prospectus dated November 25, 2002)
$_00,000,000
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HSBC Holdings plc
___% Subordinated Notes Due 20__
The notes will bear interest at the rate of ___% per year. HSBC Holdings plc will pay interest on the notes on _______ and ________ of each year, beginning on ______, 20__. The notes will mature on _________, 20__.
Application has been made to list the notes on the ______ Stock Exchange in accordance with its rules.
The notes are unsecured subordinated debt securities.
Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus supplement or the related prospectus. Any representation to the contrary is a criminal offense.
Per Note Total
---------- ----------
Public Offering Price(1) % $
Underwriting Discount % $
Proceeds to us (before expenses) % $
----------
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(1) Interest on the notes will accrue from _______, 20__.
We may use this prospectus supplement and the attached prospectus in the initial sale of these notes. In addition, HSBC Securities (USA) Inc. or another of our affiliates may use this prospectus supplement and the attached prospectus in a market-making transaction in any of these notes after their initial sale. Unless we or our agent informs you otherwise in the confirmation of sale, this prospectus supplement and the attached prospectus is being used in a market-making transaction.
The underwriters expect to deliver the notes to purchasers in book-entry form only through the facilities of The Depository Trust Company on or about _____, 20__.
FOR NEW HAMPSHIRE RESIDENTS ONLY: NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A LICENSE HAS BEEN FILED UNDER CHAPTER 421-B OF THE NEW HAMPSHIRE REVISED STATUTES WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE OF NEW HAMPSHIRE THAT ANY DOCUMENT FILED UNDER RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON, SECURITY, OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER, OR CLIENT ANY REPRESENTATION INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH.
There are certain restrictions on the distribution of this prospectus supplement and the accompanying prospectus, as set out in "Plan of Distribution".
In connection with the issue of the securities, HSBC Securities (USA) Inc. or any person acting for it may over-allot or effect transactions with a view to supporting the market price of the securities at a level higher than that which might otherwise prevail for a limited period after the issue date. However, there may be no obligation on HSBC Securities (USA) Inc. or any agent of it to do this. Such stabilizing, if commenced, may be discontinued at any time and must be brought to an end after a limited period.
TABLE OF CONTENTS
Prospectus Supplement
Page
DESCRIPTION OF NOTES.........................................................S-o
CAPITALIZATION...............................................................S-o
UNDERWRITING.................................................................S-o
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Prospectus
ABOUT THIS PROSPECTUS.........................................................2
LIMITATIONS ON ENFORCEMENT OF US LAWS AGAINST US,
OUR MANAGEMENT AND OTHERS..................................................2
WHERE YOU CAN FIND MORE INFORMATION ABOUT US..................................3
HSBC..........................................................................4
USE OF PROCEEDS...............................................................5
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE
SHARE DIVIDENDS............................................................5
CONSOLIDATED CAPITALISATION AND INDEBTEDNESS OF HSBC HOLDINGS PLC.............6
DESCRIPTION OF SUBORDINATED DEBT SECURITIES...................................8
DESCRIPTION OF DOLLAR PREFERENCE SHARES.......................................21
DESCRIPTION OF ADSs...........................................................26
TAXATION......................................................................33
PLAN OF DISTRIBUTION..........................................................40
LEGAL OPINIONS................................................................41
EXPERTS.......................................................................42
------------------------------------
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You should only rely on the information contained or incorporated by reference in this prospectus supplement and the attached prospectus. We have not, and the underwriters have not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and the underwriters are not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus supplement and the prospectus, as well as information we have previously filed with the Securities and Exchange Commission and incorporated by reference, is accurate as of the date on the front cover of this prospectus supplement only. Our business, financial condition, results of operations and prospects may have changed since that date.
The distribution of this prospectus supplement and the attached prospectus and the offering of the notes in certain jurisdictions may be restricted by law. This prospectus supplement and the attached prospectus do not constitute an offer, or an invitation on our behalf or on behalf of the underwriters, to subscribe to or purchase any of the notes, and may not be used for or in connection with an offer or solicitation by anyone, in any jurisdiction in which such an offer or solicitation is not authorized or to any person to whom it is unlawful to make such an offer or solicitation.
DESCRIPTION OF NOTES
This section outlines the specific financial and legal terms of the notes that are more generally described under "Description of Subordinated Debt Securities" beginning on page o of the prospectus that is attached to this prospectus supplement. If anything described in this section is inconsistent with the terms described under "Description of Subordinated Debt Securities" in the attached prospectus, the terms described below shall prevail.
o Title: o% Subordinated Notes due o.
o Total principal amount being issued: $o00,000,000.
o Issuance date: o, 200o.
o Due date for principal: o, 200o.
o Interest rate: o% per annum.
o Date interest starts accruing: o, 200o.
o Interest due dates: Every o and o.
If we do not make a payment with respect to any notes on any relevant payment date, our obligations to make such payment will be deferred until (and the payment will not be due and payable until):
>> in the case of a payment of interest, the date on which a dividend is paid on any class of our share capital; and
>> in the case of a payment of principal, the first business day after the date that falls six months after the original payment date.
Failure by us to make any such payment prior to such deferred date will not constitute a default by us or allow any holder to sue us for such payment or take any other action. Each payment so deferred will accrue interest at the rate of o%. Any payment so deferred will not be treated as due for any purpose (including, without limitation, for the purpose of ascertaining whether or not an event of default has occurred) until the relevant deferred date.
o First interest due date: o, 20o.
o Ranking: The rights of holders of the notes will, in the event of our winding up, be subordinated in right of payment to claims of our depositors and all our other creditors other than claims which are by their terms, or are expressed to be, subordinated to the notes (including the undated debt securities). The subordination provisions of the dated indenture, and to which the notes are subject, are governed by English law.
Holders of the notes and the trustee, by their acceptance of the notes, will be deemed to have waived any right of set-off or counterclaim that they might otherwise have.
o Convertible: No.
o Payment of additional amounts: We will pay additional amounts in respect of the notes described under "Description of Subordinated Debt Securities -- Additional Amounts" on page o of the attached prospectus.
o Form of notes: The global security will be deposited on issue with o, as book-entry depositary, who will hold the global security for the benefit of The Depository Trust Company or its nominee ("DTC") and its participants pursuant to the terms a debt security deposit agreement among us, the book-entry depositary and the holders and beneficial owners from time to time of book-entry debt securities. Pursuant to the debt security deposit agreement, the book-entry depositary will issue one or more certificateless depositary interests which together will represent a 100 per cent interest in the underlying global security. These book-entry debt securities will be issued to DTC, which will operate a book-entry system for the book-entry debt securities. You should read "Description of Subordinated Debt Securities-- Form Settlement and Clearance" beginning on page o of the attached prospectus for more information.
o Trading through DTC, Clearstream, Luxembourg and Euroclear: Initial settlement for the notes will be made in immediately available funds. Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC's rules and will be settled in immediately available funds using DTC's Same-Day Funds Settlement System. Secondary market trading between Clearstream Banking, societe anonyme, in Luxembourg ("Clearstream, Luxembourg"), customers and/or Euroclear Banks S.A./N.V. ("Euroclear") participants will occur in the ordinary way in accordance with the applicable rules and operating procedures of Clearstream, Luxembourg and Euroclear and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.
o Listing: Application has been made to list the notes on the o Stock Exchange in accordance with its rules.
o Redemption: The notes are not redeemable, except as described under "Description of Debt Securities and Guarantees -- Optional Tax Redemption" on page o of the attached prospectus. The provisions for optional tax redemption described therein will apply to changes in tax treatment occurring after the issuance date. At maturity, the notes will be repaid at par.
o Sinking fund: There is no sinking fund.
o Trustee: We will issue the notes under an indenture with The Bank of New York, as trustee, to be entered into on _______, 2002, which is referred to on page __ of the attached prospectus.
o Net proceeds: The net proceeds will be $__________.
o Governing law and jurisdiction: Except as described above in "--Ranking", the indenture and the notes are governed by New York law. Any legal proceedings arising out of or based upon the indenture or the notes may be instituted in any state or federal court in the Borough of Manhattan in New York City, New York.
CONSOLIDATED CAPITALISATION AND INDEBTEDNESS OF HSBC HOLDINGS PLC
The following table shows the consolidated unaudited capitalisation and share capital position of HSBC Holdings plc and its subsidiary undertakings as at 30 June 2002:
Authorised Issued and
fully paid
US$m US$m
Ordinary Share Capital:
Ordinary shares (of nominal value US$0.50 each) 7,500 4,725
=============
Amount
outstanding
US$m
Consolidated Loan Capital
Undated Subordinated Loan Capital of Subsidiary Undertakings
US$ 1,200m Primary capital subordinated undated floating rate notes 1,200
US$ 750m Undated floating rate primary capital notes 750
US$ 500m Undated floating rate primary capital notes 500
US$ 300m Undated floating rate primary capital notes (series 3) 300
(pound) 150m 9.25% step-up undated subordinated notes 229
(pound) 150m 8.625% step-up undated subordinated notes 229
Other undated subordinated liabilities less than US$200m 309
-------------
3,517
=============
Subordinated Loan Capital of HSBC Holdings plc
US$ 1,000m 7.5% subordinated notes 2009 999
(pound) 413m 11.69% subordinated bonds 2002 632
(pound) 250m 9.875% subordinated bonds 2018 377
US$ 350m Subordinated step-up coupon floating rate notes 2010 349
(euro) 300m 5.5% subordinated notes 2009 297
US$ 250m Subordinated collared floating rate notes 2008 250
-------------
2,904
=============
Subordinated Loan Capital of Subsidiary Undertakings
(pound) 350m 5.75% subordinated variable coupon notes 2017 535
US$ 500m 7.625% subordinated notes 2006 500
(pound) 300m 6 1/2% subordinated notes 2023 455
US$ 400m 8 5/8% subordinated notes 2004 400
HK$ 3,000m Subordinated collared (7% to 9%) floating rate notes 2003 385
US$ 375m Subordinated step-up coupon floating rate notes 2009 375
US$ 350m 7.4% subordinated guaranteed notes 2003 350
(pound) 225m 6.25% subordinated notes 2041 341
(pound) 200m 9% subordinated notes 2005 306
US$ 300m 6.95% subordinated notes 2011 300
US$ 300m 7.65% subordinated notes 2025 300
US$ 300m 7% fixed rate subordinated notes 2006 299
US$ 250m 7.25% subordinated notes 2002 250
US$ 250m 5.875% subordinated notes 2008 228
US$ 250m 7.2% subordinated notes 2097 215
US$ 200m 7.808% capital securities 2026 200
US$ 200m 8.38% capital securities 2027 200
US$ 200m 6.625% subordinated notes 2009 200
Other subordinated liabilities less than US$200m 3,456
-------------
9,295
=============
Non-equity Minority Interest
9.547% Non-Cumulative Step-up Perpetual Preferred Securities,
US$ 1,350m Series 1 1,337
10.176% Non-Cumulative Step-up Perpetual Preferred Securities,
US$ 900m Series 2 891
(pound) 500m 8.208% Non-Cumulative Step-up Perpetual Preferred Securities 757
(euro) 600m 8.03% Non-Cumulative Step-up Perpetual Preferred Securities 588
Other preference shares issued by subsidiary undertakings 779
-------------
4,352
=============
Other Indebtedness
Deposits by banks 61,455
Customer accounts 470,778
Debt securities in issue 28,683
Other liabilities 111,920
-------------
672,836
=============
Memorandum Items
Contingent liabilities
Acceptances and endorsements 4,191
Guarantees and assets pledged as collateral security 45,181
Other 14
-------------
49,386
=============
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Notes:
(1) The authorised ordinary share capital of HSBC Holdings plc as at 30 June 2002 was US$7,500 million divided into 15,000 million ordinary shares of US$0.50 each, and (pound)301,500 divided into 301,500 non-voting deferred shares of (pound)1 each. At 30 June 2002, the authorised and unissued preference share capital of HSBC Holdings plc was 10 million non-cumulative preference shares of US$0.01 each, 10 million non-cumulative preference shares of (pound)0.01 each and 10 million non-cumulative preference shares of (euro)0.01 each.
(2) The Non-Cumulative Step-up Perpetual Preferred Securities each have the benefit of a subordinated guarantee of HSBC Holdings plc. None of the other above Consolidated Loan Capital is secured or guaranteed. No account has been taken of liabilities or guarantees between undertakings within the group, comprising HSBC Holdings plc and its subsidiary undertakings.
(3) On 9 October 2002, HSBC Holdings plc paid its first interim dividend for 2002. Ordinary shares with a value of US$166 million were issued to those existing shareholders who had elected to receive new shares at market value in lieu of cash. As the full amount of the dividend was accrued as payable at 30 June 2002, shareholders' funds increased by US$166 million as a result of these elections.
(4) Since 30 June 2002, 15,276,184 ordinary shares of US$0.50 each have been allotted and issued as a result of the exercise of employee share options.
(5) HSBC Holdings plc redeemed(pound)413 million 11.69% subordinated notes on 31 July 2002.
(6) HSBC USA Inc. redeemed US$250 million 7.25% subordinated notes on 15 July 2002, US$100 million floating rate subordinated notes on 7 August 2002 and US$150 million floating rate subordinated notes on 28 October 2002.
(7) As at 30 June 2002, HSBC had pledged assets of US$40,845 million as security for liabilities of US$12,233 million.
Save as disclosed in the above notes, there has been no material change in the authorised and issued share capital of HSBC Holdings plc or the loan capital, other indebtedness, contingent liabilities or third party guarantees of HSBC Holdings plc and its subsidiary undertakings since 30 June 2002.
The following exchange rates as at 30 June 2002 have been used in the table above:
US$1.00 = Hong Kong dollars 7.79995; (euro)1.00 = US$0.99030; (pound)1.00 = US$1.52855.
UNDERWRITING
The underwriters named below have severally agreed, subject to the terms and conditions of the Purchase Agreement with us, dated the date of this prospectus supplement, to purchase the principal amount of notes set forth below opposite their respective names. The underwriters are committed to purchase all of such notes if any are purchased.
Principal
Underwriters Amount of Notes
.........................................................$
.........................................................$
--------------
Total...........................................$
==============
|
The underwriters propose to offer the notes in part directly to the public at the initial public offering price set forth on the cover page of this prospectus supplement and in part to certain securities dealers at such price less a concession of % of the principal amount of the notes. The underwriters may allow, and such dealers may reallow, a concession not to exceed % of the principal amount of the notes to certain brokers and dealers.
The notes are a new issue of securities with no established trading market. Application has been made to list the notes on the Stock Exchange in accordance with its rules, although no assurance can be given that the notes will be listed on the Stock Exchange, and if so listed, the listing does not assure that a trading market for the notes will develop. We have been advised by the underwriters that they intend to make a market in the notes but are not obligated to do so and may discontinue market making at any time without notice. No assurance can be given as to the liquidity of the trading market for the notes.
We have agreed to indemnify the several underwriters against certain liabilities, including liabilities under the Securities Act of 1933.
The following are the estimated expenses to be incurred in connection with the issuance and distribution of the note:
Form of Purchase Agreement
HSBC HOLDINGS PLC
(a public limited company incorporated under the laws of England and Wales)
Subordinated Debt Securities
and
American Depositary Shares
Representing
Dollar-denominated Preference Shares
PURCHASE AGREEMENT
Dated:
HSBC HOLDINGS PLC
(a public limited company incorporated under the laws of England and Wales)
Subordinated Debt Securities and American Depositary Shares Representing Dollar-denominated Preference Shares
PURCHASE AGREEMENT
[Date]
[Names of Underwriters]
Gentlemen and Ladies:
HSBC Holdings plc, a public limited company incorporated under the laws of England and Wales (the "Company"), proposes to issue and sell from time to time, either together or separately, (i) subordinated debt securities ("Debt Securities") consisting of debentures, notes and/or other evidences of subordinated indebtedness and/or (ii) American Depositary Shares (the "ADSs"), each ADS representing one of the Company's Dollar-denominated Preference Shares, nominal value $.01 each (the "Shares" and, together with the Debt Securities, the "Securities"), in one or more offerings on terms determined at the time of sale and set forth in a terms agreement (the "Terms Agreement"). The Shares of more than one series may be offered and sold as units, in which case such units of Shares will be represented by units of ADSs of each corresponding series. The aggregate initial offering price of any combination of Securities will not exceed $3,750,000,000 or the equivalent thereof if Debt Securities are denominated in one or more foreign currencies or foreign currency units.
The Debt Securities are to be issued under one of two Indentures, (each an "Indenture", together the "Indentures"), to be entered into between the Company and The Bank of New York, as trustee (the "Trustee"). The Debt Securities may be dated Debt Securities with a specified maturity date, issued under the Indenture relating thereto (the "Dated Indenture") or undated Debt Securities with no specified maturity date, issued under the Indenture relating thereto (the "Undated Indenture"). The Debt Securities may have varying designations, authorized denominations, maturities, rates or methods of calculation of interest, if any, and terms for payment thereof, if any, exchange, conversion, redemption or prepayment terms, if any, and other specific terms as set forth in the applicable Terms Agreement relating thereto.
Each issue of Shares may vary, where applicable, as to series, number of Shares, public offering or purchase price, dividend rate or any other variable terms which the articles of association of the Company (the "Articles of Association") contemplate and as set forth in the applicable Terms Agreement.
The Debt Securities and Shares to be issued and sold as specified in the applicable Terms Agreement shall be referred to herein as the "Offered Debt Securities" and the "Offered Shares," respectively, and collectively as the "Offered Securities." As used herein, unless the context otherwise requires, the term "Underwriters" shall mean the firm or firms specified as Underwriter or Underwriters in the applicable Terms Agreement relating to the Offered Securities and the term "you" shall mean the Underwriter or Underwriters, if no underwriting syndicate is purchasing the Offered Securities, or the representative or representatives of the Underwriters, if an underwriting syndicate is purchasing the Offered Securities, as specified in the applicable Terms Agreement.
Unless otherwise specified in the applicable Terms Agreement, the Offered Debt Securities are to be deposited pursuant to a debt security deposit agreement (the "Debt Security Deposit Agreement") among the Company, a person designated by the Company as depositary (the "Book-Entry Depositary"), and the holders and beneficial owners of book-entry debt securities issued thereunder (the "Book-Entry Debt Securities") and such Offered Debt Securities will be offered and sold in the form of such Book-Entry Debt Securities. The Offered Shares are to be deposited pursuant to a deposit agreement (the "Deposit Agreement"), among the Company, The Bank of New York, as depositary (the "Depositary"), and the holders from time to time of the American Depositary Receipts (the "ADRs") issued thereunder and such Offered Shares will be offered in the form of ADSs evidenced by ADRs. The Offered Debt Securities, Offered Shares and ADRs are more fully described in the Prospectus referred to below. References to an issue, offer or sale of any Securities hereunder shall include such issue, offer or sale in the form of Book-Entry Debt Securities or ADSs, as the case may be, where the context so allows.
Whenever the Company determines to make an offering of Offered Securities, the Company will enter into a Terms Agreement providing for the sale of the applicable Offered Securities to, and the purchase and offering thereof by, the Underwriters. The Terms Agreement relating to the Offered Securities shall specify the type of Offered Securities to be issued, the names of the Underwriters participating in such offering (subject to substitution as provided in Section 12 hereof), the number of Offered Securities which each such Underwriter severally agrees to purchase, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the time and place of delivery and payment and other specific terms. In addition, each Terms Agreement shall specify whether the Company has agreed to grant to the Underwriters an option to purchase additional Offered Securities to cover over-allotments, if any, and the amount of Offered Securities subject to such option (the "Option Securities"). As used herein, the term "Offered Securities" shall include the Option Securities, if any. The Terms Agreement may take the form of an exchange of any standard form of written telecommunication between you and the Company. Each offering of Offered Securities will be governed by this Agreement, as supplemented by the applicable Terms Agreement, and this Agreement and such Terms Agreement shall inure to the benefit of and be binding upon the Company and each Underwriter participating in the offering of such Offered Securities.
The Company has prepared and filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form F-3 (No.333-92024), including a prospectus, relating to the Securities and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"). Such registration statement as amended has been declared effective by the Commission. As provided in Section 4(a) hereof, for each offering of Offered Securities, a prospectus supplement reflecting the terms of the Offered Securities, the terms of the offering thereof and the other matters set forth therein will be prepared and filed pursuant to Rule 424 under the 1933 Act. Such prospectus supplement, in the form first filed after the date hereof pursuant to Rule 424, is herein referred to as the "Prospectus Supplement." Such registration statement, as amended at the date hereof, including the exhibits thereto and the documents incorporated by reference therein, is herein called the "Registration Statement," and the basic prospectus included therein relating to all offerings of Securities under the Registration Statement, as supplemented by the Prospectus Supplement, is herein called the "Prospectus," except that, if such basic prospectus is amended or supplemented on or prior to the date on which the Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus as so amended or supplemented and as supplemented by the Prospectus Supplement, in either case including the documents filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by reference therein.
The Company has filed with the Commission a registration statement on Form F-6 (No. 333-100072), relating to the registration of the ADSs under the 1933 Act, has filed such amendments to such registration statement as may have been required to the date hereof and will file such additional amendments to such registration statement as may hereafter be required to comply with the 1933 Act and the rules and regulations of the Commission thereunder (the "1933 Act Regulations"). Such registration statement as amended has been declared effective by the Commission. Such registration statement on Form F-6 relating to the ADSs, including the exhibits thereto, is herein called the "ADS Registration Statement."
SECTION 1. Representations and Warranties. (a) The Company represents and warrants to you as of the date hereof, and to each Underwriter named in a Terms Agreement as of the date thereof (in each case, the "Representation Date"), as follows:
(i) The Registration Statement has become effective; no proceedings for such purpose are pending before or threatened by the Commission. At the time the Registration Statement became effective and at the Closing Time referred to below (and, if any Option Securities are purchased, on the Date of Delivery referred to below): (A) the Registration Statement and the Prospectus, complied or will comply in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, (B) the Registration Statement and any supplement or amendment thereto, did not, and will not, contain any 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 (C) the Prospectus and any amendment or supplement thereto, did not, and will not, contain any 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 Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter expressly for use in the Registration Statement or Prospectus. At the Closing Time, the Designated Indenture (as defined below) will comply in all material respects with the requirements of the Trust Indenture Act of 1939 (the "1939 Act") and the rules and regulations of the Commission thereunder (the "1939 Act Regulations").
(ii) No order preventing or suspending the use of any preliminary Prospectus has been issued by the Commission, and no stop order suspending the effectiveness of the Registration Statement is in effect.
(iii) This Agreement has been duly authorized, executed and delivered by the Company. Upon execution and delivery of the applicable Terms Agreement by the Company, such Terms Agreement shall have been duly authorized, executed and delivered by the Company.
(iv) The consolidated financial statements included or incorporated by reference in the Registration Statement present fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations for the periods specified. Such financial statements have been prepared in conformity with accounting principles generally accepted in the United Kingdom, applied, except as described in the Registration Statement, on a consistent basis throughout the periods involved. The financial statement schedules, if any, included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein. The selected financial data and selected statistical information included in the Prospectus present fairly the information shown therein and, except as otherwise set forth in the Prospectus, have been compiled on a basis consistent with that of the audited consolidated financial statements included or incorporated by reference in the Registration Statement.
(v) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the 1933 Act or the 1934 Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the 1933 Act or the 1934 Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by any Underwriter of Offered Securities expressly for use in the Prospectus as amended or supplemented relating to such Offered Securities.
(vi) The Company has been duly registered and is validly existing as a public limited company under the laws of England and Wales with full power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in the Prospectus.
(vii) Each of the Company's subsidiaries has been duly organized and is validly exiting as a corporation under the laws of its country of incorporation; all of the issued and outstanding capital stock of each subsidiary has been duly authorized and validly issued and fully paid or partly paid and, if partly paid, not in default; the Company owns, directly or through its subsidiaries, the shares of capital stock held by it in each of the subsidiaries as set forth in the Prospectus, free and clear of any security interest, mortgage, pledge, lien, charge, encumbrance, claim, or equity; and none of the outstanding shares of capital stock of any subsidiary was issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(viii) The Company had at the date indicated the duly authorized and issued share capital as set forth in the condensed consolidated statement of changes in shareholders' equity included or incorporated by reference in the Prospectus; all of the issued share capital of the Company has been duly and validly authorized and issued and is fully paid and non-assessable; and the Debt Securities, the Book-Entry Debt Securities, the Shares and the ADRs conform to the descriptions thereof contained in the Registration Statement and the Offered Securities will conform to the descriptions thereof in the Prospectus and the related supplement to the Prospectus and such descriptions conform to the rights set forth in the instruments defining the same.
(ix) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein or contemplated thereby, there has not been (A) any material adverse change in or affecting the financial condition, earnings or general affairs of the Company and its subsidiaries, considered as one enterprise, or (B) any transaction entered into by the Company or any subsidiary, other than in the ordinary course of business, in each case that is material to the Company and its subsidiaries (considered as one enterprise) in the context of the issue of the Offered Securities.
(x) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, in the aggregate, are material to the Company and its subsidiaries (considered as one enterprise) in the context of the issue of the Offered Securities; and, to the best knowledge of the Company, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(xi) The Company has not taken and will not take, directly or indirectly, any action designed to cause or result in stabilization or manipulation of the price of the Offered Securities.
(xii) No registration of the Company under the Investment Company Act of 1940, as amended, (the "1940 Act") is required in connection with the issue and sale in the United States of the Offered Securities.
(b) If the Offered Securities include Debt Securities, the Company also represents and warrants to you as of the date hereof, and to each Underwriter named in the applicable Terms Agreement as of the date thereof (in each case, the "Representation Date"), as follows;
(i) The Dated Indenture or the Undated Indenture, as the case may be, with respect to such Debt Securities, each supplement thereto, if any, to the date hereof and the supplement thereto or board resolution setting forth the terms of such Offered Debt Securities (such Indenture, as so supplemented by such supplement or supplements and/or board resolution, being herein referred to as the "Designated Indenture"), have been duly authorized by the Company. The Designated Indenture as executed is or will be substantially in the form filed as an exhibit to the Registration Statement. The Designated Indenture, when duly executed and delivered (to the extent required by the Indenture) by the Company and the Trustee, will constitute a valid, binding and enforceable obligation of the Company assuming due authorization thereof by the Trustee, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(ii) The Debt Securities Deposit Agreement has been duly authorized, and, prior to the first Closing Time, will be duly executed and delivered by the Company and, assuming due authorization and execution by the Book-Entry Depositary, constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(iii) The Offered Debt Securities shall, on the date of the applicable Terms Agreement, be duly authorized and, when such Debt Securities are executed, authenticated and delivered in the manner provided for in the Designated Indenture and issued and paid for in accordance with this Agreement and the applicable Terms Agreement, such Debt Securities will constitute valid and binding obligations of the Company entitled to the benefits of the Designated Indenture and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or other similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(iv) Upon the due issuance by the Book-Entry Depositary of Book-Entry Debt Securities against the deposit of the Offered Debt Securities in accordance with the Debt Security Deposit Agreement, such Book-Entry Debt Securities will be duly and validly issued and persons in whose names such Book-Entry Debt Securities are registered will be entitled to the rights of registered holders of the Book-Entry Debt Securities specified in the Debt Security Deposit Agreement.
(v) Other than as described or set forth in the Prospectus, the applicable Prospectus Supplement or the Registration Statement, on the basis of applicable United Kingdom law and published practice followed by the United Kingdom Inland Revenue, no stamp duty, capital duty, registration or other issue or documentary taxes are payable on (A) the creation, issue or delivery by the Company of the Offered Debt Securities or (B) assuming all of the following transactions take place outside the United Kingdom and any instruments of transfer remain at all times outside the United Kingdom, the deposit of the Offered Debt Securities under the Debt Security Deposit Agreement by the Company, the purchase by the Underwriters of the Book-Entry Debt Securities, the sale and delivery by the Underwriters of the Book-Entry Debt Securities, the execution and the delivery of this Agreement, any applicable Terms Agreement, the Debt Security Deposit Agreement or the consummation of the transactions contemplated hereby.
(vi) The execution and delivery of this Agreement, the applicable Terms Agreement, the Designated Indenture and the Debt Security Deposit Agreement by the Company, the issuance and delivery of the Offered Debt Securities, the consummation by the Company of the transactions contemplated in this Agreement, the applicable Terms Agreement, the Debt Security Deposit Agreement and in the Registration Statement and compliance by the Company with the terms of this Agreement, the applicable Terms Agreement, the Designated Indenture and the Offered Debt Securities and the Debt Security Deposit Agreement have been duly authorized by all necessary corporate action on the part of the Company and do not and will not result in any violation of the Memorandum and Articles of Association of the Company, and do not and will not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, charge or security interest upon any property or assets of the Company or any subsidiary under (A) any indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any subsidiary is a party or by which it may be bound or to which any of its properties may be subject or (B) any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, having jurisdiction over the Company or any of the properties of any of them (except, in each such case, for such conflicts, breaches or defaults or liens, charges or encumbrances that would not have a material adverse effect on the financial condition or general affairs of the Company and its subsidiaries (considered as one enterprise)).
(vii) No authorization, approval, consent or license of any government, governmental instrumentality, authority or court is required for the issue and sale of the Offered Debt Securities or the consummation of the other transactions contemplated by this Agreement, the Debt Security Deposit Agreement, the applicable Terms Agreement or the Designated Indenture except (A) the registration of the Offered Debt Securities and the Book-Entry Debt Securities under the 1933 Act and the 1939 Act and (B) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Offered Debt Securities by the Underwriters.
(viii) There are no contracts or documents of a character required to be described in the Registration Statement or to be filed as exhibits to the Registration Statement that are not described and filed as required.
(c) If the Offered Securities include Shares, the Company also represents and warrants to you as of the date hereof, and to each Underwriter named in the applicable Terms Agreement as of the date thereof (in each case, the "Representation Date"), as follows:
(i) When the ADS Registration Statement became effective, and at the Closing Time referred to below (and, if any Option Securities are purchased, up to the Date of Delivery referred to below): (A) the ADS Registration Statement and any amendments and supplements thereto did and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations, and (B) neither the ADS Registration Statement nor any amendment or supplement thereto did or will contain any untrue statement of a material fact or did or will 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.
(ii) The Deposit Agreement has been duly authorized, executed and delivered by the Company, and, assuming due authorization and execution by the Depositary, constitutes a valid, legally binding and enforceable obligation of the Company, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(iii) The Offered Shares shall, on the date of the applicable Terms Agreement, be duly and validly authorized for issuance and sale pursuant to this Agreement (or will have been so authorized prior to each issuance of Shares), and, when ADSs are issued and delivered against payment therefor pursuant to this Agreement and the Terms Agreement relating to the Offered Shares, and, in the case of any Option Shares, pursuant to any over-allotment option (as described in Section 3 hereof), such ADSs will be duly and validly issued and fully paid and will not be subject to preemptive rights.
(iv) Upon the due issuance by the Depositary of ADRs evidencing ADSs against the deposit of the Offered Shares in accordance with the Deposit Agreement, such ADRs will be duly and validly issued and persons in whose names such ADRs are registered will be entitled to the rights of registered holders of the ADRs specified therein and in the Deposit Agreement.
(v) Other than as described or set forth in the Prospectus or the Registration Statement, on the basis of applicable United Kingdom law and published practice followed by the United Kingdom Inland Revenue, no stamp duty, capital duty, registration or other issue or documentary taxes are payable on (A) the creation, issue or delivery by the Company of the Offered Shares or (B) assuming all of the following transactions take place outside the United Kingdom and any instruments of transfer remain at all times outside the United Kingdom, the deposit of the Offered Shares under the Deposit Agreement by the Company, the purchase by the Underwriters of the ADSs evidenced by ADRs, the sale and delivery by the Underwriters of the ADSs evidenced by ADRs, the execution and delivery of this Agreement, any applicable Terms Agreement, the Deposit Agreement or the consummation of the transactions contemplated hereby.
(vi) The execution and delivery of this Agreement, the applicable Terms Agreement and the Deposit Agreement by the Company, the issuance and delivery of the Offered Shares, the sale of the ADSs, as applicable, the consummation by the Company of the transactions contemplated in this Agreement, the applicable Terms Agreement, the Deposit Agreement and in the Registration Statement and the ADS Registration Statement and compliance by the Company with the terms of this Agreement, the applicable Terms Agreement, the Offered Shares and the Deposit Agreement have been duly authorized by all necessary corporate action on the part of the Company and do not and will not result in any violation of the Memorandum and Articles of Association of the Company, and do not and will not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, charge or security interest upon any property or assets of the Company or any subsidiary under (A) any indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company or any subsidiary is a party or by which it may be bound or to which any of its properties may be subject or (B) any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, having jurisdiction over the Company or any of the properties of any of them (except, in each such case, for such conflicts, breaches or defaults or liens, charges or encumbrances that would not have a material adverse effect on the financial condition or general affairs of the Company and its subsidiaries (considered as one enterprise)).
(vii) No authorization, approval, consent or license of any government, governmental instrumentality, authority or court is required for the allotment and issue and sale of the Offered Shares or the consummation of the other transactions contemplated by this Agreement, the Deposit Agreement, the applicable Terms Agreement or any over-allotment option except (A) the registration of the Offered Shares and ADSs under the 1933 Act and (B) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Offered Shares by the Underwriters.
(viii) There are no contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement or the ADS Registration Statement that are not described and filed as required.
(d) Any certificate signed by any officer of the Company or any subsidiary and delivered to you or to counsel for the Underwriters pursuant to the terms hereof shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery in the United Kingdom. (a) Each of the Underwriters of Debt Securities represents and warrants to and agrees with the Company severally no jointly that, (1) in relation to Debt Securities which have a maturity of one year or more, it has not offered or sold and, prior to the expiry of six months from the date of issue of such Debt Securities, will not offer or sell any such Debt Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses, or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995 (the "POS Regulations"); (2) 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 Act 2000 (the "FSMA")) in connection with the issue or sale of such Debt Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Issuer; (3) in relation to any Debt Securities which must be redeemed before the first anniversary of the date of their issue, (A) it is a person whose ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business, and (B) it has not offered or sold and will not offer or sell any such Debt Securities other than to persons: (x) whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or (y) who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses, where the issue of the Debt Securities would otherwise constitute a contravention of Section 19 of the FSMA by the Company; and (4) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Debt Securities in, from or otherwise involving the United Kingdom.
(b) Each of the Underwriters of Shares represents and warrants to and
agrees with the Company severally no jointly that: (1) it has not offered or
sold and, prior to the expiry of a period of six months from the Closing Date,
will not offer or sell any Shares to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
POS Regulations; (2) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the FSMA)
in connection with the issue or sale of such Shares in circumstances in which
Section 21(1) of the FSMA does not apply to the Company; and (3) it has complied
and will comply with all applicable provisions of the FSMA with respect to
anything done by it in relation to any Shares in, from or otherwise involving
the United Kingdom.
SECTION 3. Sale and Delivery to the Underwriters; Closing. (a) The several commitments of the Underwriters to purchase Offered Securities pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth.
(b) In addition, the Company may grant in any Terms Agreement an option to the Underwriters named in such Terms Agreement to purchase up to the amount of Option Securities specified in such Terms Agreement, upon the terms and conditions referred to in paragraph (a) of this Section 3. The option granted by any Terms Agreement must be exercised within the period specified in such Terms Agreement, and may be exercised in whole or in part (but not more than once) only for the purpose of covering over-allotments that may be made in connection with the offering and distribution of the Offered Securities upon notice by you to the Company setting forth the number of Option Securities as to which the several Underwriters are exercising the option, and the time and date of payment and delivery thereof. Such time and date of delivery (the "Date of Delivery") shall be determined by you after consultation with the Company but shall not be later than seven full Business Days after the exercise of such option, nor in any event prior to the Closing Time. If the option is exercised as to only a portion of the Option Securities, the Company will sell such portion of the Option Securities to the Underwriters. If the option is exercised as to all or any portion of the Option Securities, the Option Securities as to which the option is exercised shall be purchased by the Underwriters, severally and not jointly, in their respective underwriting obligation proportions. The term "Business Day" shall mean any day on which banks in both (i) New York, New York and (ii) London, England are not required or authorized by law to close.
(c) Payment of the purchase price for and underwriting commission in connection with any Offered Securities to be purchased by the Underwriters shall be made at the offices of Cleary, Gottlieb, Steen & Hamilton in London or at such other place as shall be agreed upon by the Company and you, at 10:00 A.M., New York City time, on the fifth Business Day (unless, in either case, postponed pursuant to Section 12 hereof) following the date of the applicable Terms Agreement, or such other time as you and the Company shall determine (each such date and time of payment and delivery being herein referred to as a "Closing Time"). In addition, in the event that the Company has granted an option to purchase Option Securities, payment of the purchase price for and underwriting commission in connection with, any Option Securities purchased pursuant to such option by the Underwriters shall be made at the offices of Cleary, Gottlieb, Steen & Hamilton set forth above or at such other place as the Company and you shall determine, on the Date of Delivery as specified in the notice from you to the Company. Payment shall be made to the Company by certified or official bank check or wire transfer in such funds as specified in the applicable Terms Agreement, payable to the order of the Company.
(d) Unless otherwise specified in the applicable Terms Agreement, payment for the Offered Securities shall be made against delivery at the Closing Time (or on the Date of Delivery, in the event that the Company grants to the Underwriters the option described in Section 3(b) hereof to purchase any or all of the Option Securities, the Underwriters exercise such option and the Date of Delivery is later than the Closing Time), in the case of Debt Securities, to the Book-Entry Depositary, and, in the case of Shares, to The Bank of New York, as Depositary, so that the Depositary can issue ADRs evidencing ADSs representing interests in the Offered Shares. It is understood and agreed by the parties hereto that no delivery of Offered Securities to be purchased and sold hereunder at a Closing Time (or on a Date of Delivery) shall be effective until and unless payment therefor has been made pursuant to Section 3(c) hereof and the Company shall have furnished or caused to be furnished to you at such Closing Time (or Date of Delivery) certificates and other evidence reasonably satisfactory to you of the execution of a book-entry transfer of such Offered Securities in the form of Book-Entry Debt Securities or ADSs, as the case may be, through the facilities of The Depository Trust Company in favor of the Underwriters.
SECTION 4. Certain Covenants of the Company. The Company covenants with you and with each Underwriter as follows:
(a) If reasonably requested by you in connection with each offering of the Offered Securities, the Company will prepare a preliminary prospectus supplement containing such information as you and the Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Prospectus Supplement containing such information concerning the Offered Securities as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will promptly transmit copies of such Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus and such Prospectus Supplement as you shall reasonably request.
(b) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as you may designate and to maintain such qualifications in effect for as long as may be required for the distribution of the Offered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Offered Securities have been qualified as above provided.
(c) 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 (which need not be audited) complying with Section 11(a) of the 1933 Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158 of the 1933 Act Regulations).
(d) Between the date of the applicable Terms Agreement and the Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company which are substantially similar to the Offered Securities, other than as set forth in such Terms Agreement.
(e) To the extent specified in the Terms Agreement, the Company will use
its best efforts to (i) effect the authorization of the Offered Securities for
listing on the New York Stock Exchange, Inc. at the applicable Closing Time or
(ii) ensure that by the applicable Closing Time the Financial Services
Authority, in its capacity as the United Kingdom Listing Authority (the "UKLA"),
will have granted permission for the admission of the Offered Securities to the
Official List subject to allotment and the London Stock Exchange plc will have
granted permission for the admission of the Offered Securities to trading or
(iii) effect the authorization of the Offered Securities for listing on the
Luxembourg Stock Exchange, subject to their issuance.
(f) The Company shall, on or before the date of the publication of the listing particulars, if any, in relation to the Offered Securities, deliver a copy thereof to the Registrar of Companies in England and Wales in accordance with the applicable regulations, if so required by such applicable regulations.
(g) If the Offered Securities include Debt Securities, the Company also covenants with you and with each Underwriter as follows:
(i) The Company will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or counsel for the Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the rules and regulations of the Commission thereunder, the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 4(g)(i), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(iv) The Company will, while the completion of the distribution of any Offered Debt Securities is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(v) In respect of a series of Debt Securities, which must be
redeemed before the first anniversary of the date of its issue, the
Company will issue such Debt Securities only if the following conditions
apply (or the Debt Securities can otherwise be issued without
contravention of section 19 of the FSMA): (a) each relevant Underwriter
represents, warrants and agrees in the terms set out in Section 2(a); and
(b) the redemption value of each such Debt Security is not less than
(pound)100,000 (or an amount of equivalent value denominated wholly or
partly in a currency other than sterling), and no part of any Debt
Security may be delivered unless the redemption value of that part is not
less than (pound)100,000 (or such an equivalent amount).
(h) If the Offered Securities include Shares, the Company also covenants with you and each Underwriter as follows:
(i) The Company will not while the completion of the distribution of such Offered Securities is pending, file or make any amendment to the Registration Statement or the ADS Registration Statement, or any amendment or supplement to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or counsel for the Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement and the ADS Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement or the ADS Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement and the ADS Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the rules and regulations of the Commission thereunder so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and counsel for the Company, to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order that the Prospectus 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 4(h)(i), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement, the ADS Registration Statement or the Prospectus comply with such requirements.
(iv) The Company will, while the completion of the distribution of any Offered Shares is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the Registration Statement or the ADS Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the ADS Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or the ADS Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(v) The Company will comply with the Deposit Agreement so that ADRs evidencing any ADSs representing Offered Shares will be executed and delivered by the Depositary to the Underwriters at the applicable Closing Time or Date of Delivery as the case may be.
SECTION 5. Payment of Expenses. The Company will pay and bear all costs
and expenses incident to the performance of its obligations under this Agreement
and any applicable Terms Agreement, including (a) the printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the ADS Registration Statement, any preliminary
prospectus and the Prospectus and any amendments or supplements thereto, and the
cost of furnishing copies thereof to the Underwriters, (b) the printing and
distribution of this Agreement (including any applicable Terms Agreement), the
Debt Security Deposit Agreement, the Deposit Agreement, the Designated
Indenture, the Offered Securities, the ADSs, the ADRs and the Blue Sky Survey,
(c) the delivery of the Offered Debt Securities to the Debt Security Depositary
and/or the Offered Shares to the Depositary and the Book-Entry Debt Securities
and/or ADSs to the Underwriters, including any stock transfer taxes payable upon
the delivery of the Offered Debt Securities to the Debt Security Depositary
and/or the Offered Shares to the Depositary and/or the sale of the Book-Entry
Debt Securities and/or the ADSs to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants, (e) the qualification of
the Offered Securities under the applicable securities laws in accordance with
Section 4(b) and any filing for review of the offering with the National
Association of Securities Dealers, Inc., including filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the Blue Sky Survey (such counsel's fees and disbursements not
to exceed $?, (f) the costs and charges of the Depositary, the Book-Entry
Depositary and any transfer agent or registrar, (g) the fees of rating agencies,
(h) the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee, in connection with the Designated Indenture and the
Offered Debt Securities, (i) all expenses and listing fees in connection with
the listing of the Offered Securities on the New York Stock Exchange, Inc. and
the London Stock Exchange plc and the Luxembourg Stock Exchange, (j) all
expenses and taxes for which the Company may at any time be liable, including,
without limitation, any stamp duty, capital, withholding, transfer or other tax,
incident to the issue and delivery by the Company of the Offered Debt Securities
to the Book-Entry Depositary and/or the Offered Shares to the Depositary or of
the Book-Entry Debt Securities and/or the ADSs to the Underwriters and the sale
and delivery of the Book-Entry Debt Securities and/or the ADSs evidenced by ADRs
by the Underwriters to the initial purchasers thereof (provided that such sale
and delivery by the Underwriters takes place outside the United Kingdom), and up
to the amount specified in the applicable Terms Agreement as reimbursement for
the out-of-pocket expenses, including the fees and disbursements of counsel for
the Underwriters, incurred by the Underwriters in connection with the
transactions contemplated hereby, payable to you, for the account of the
Underwriters.
If a Terms Agreement is terminated by you in accordance with the provisions of Section 6, 11(a)(i) or 13, the Company shall reimburse the Underwriters for all their out-of-pocket expenses, including the fees and disbursements of counsel for the Underwriters.
SECTION 6. Conditions of Underwriters' Obligations. The obligations of the several Underwriters to purchase and pay for the Offered Securities pursuant to any Terms Agreement (including any Option Securities as to which the option described in Section 3 has been granted by the Terms Agreement and exercised and the Date of Delivery determined by you is the same as the Closing Time) are subject to the accuracy of the representations and warranties of the Company contained herein or in certificates of the Company's officers delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and obligations hereunder, and to the following further conditions:
(a) At the applicable Closing Time, no stop order suspending the effectiveness of the Registration Statement, or the ADS Registration Statement (if the Offered Securities include Shares) shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall be pending or, to your knowledge or the knowledge of the Company, shall be contemplated by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel for the Underwriters.
(b) At the applicable Closing Time you shall have received a signed opinion of Norton Rose, English solicitors to the Company, dated as of the applicable Closing Time, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance satisfactory to the Underwriters, to the effect that:
(i) The Company has been duly incorporated in and registered as a public limited company under the laws of England and Wales and has the requisite corporate capacity to own, lease and operate its properties and conduct its business as described in the Prospectus.
(ii) This Agreement and the applicable Terms Agreement have been duly authorized and executed by the Company.
(iii) The statements with respect to matters of English law and regulations set out in the Prospectus, as amended or supplemented, under the heading "Taxation," insofar as such statements constitute a summary of the legal matters under the laws of the United Kingdom referred to therein, are accurate in all material respects.
(iv) Under English law and practice as currently applied, such counsel believe that the choice of New York law as the governing law of this Agreement will be recognised and upheld by the English Courts.
(v) The Underwriters can seek to enforce by proceedings in the English Courts their rights against the Company under this Agreement and (save as mentioned below) such access will not be subject to any conditions which are not applicable to residents of the United Kingdom, a British Citizen or a company incorporated in any part of the United Kingdom; but, (A) an English court may stay an action where it is of the opinion that, without injustice to the plaintiff, an action in another forum would be more convenient and (B) an English court may, at its discretion, order a plaintiff in an action, being a party who is not ordinarily resident in some part of the United Kingdom, to provide security for costs (including fees of counsel).
(vii) If the Offered Securities include Debt Securities, such counsel's signed opinion shall also state that:
(A) The Offered Debt Securities have been duly authorized by the Company and, subject to the Offered Debt Securities having been duly authenticated by the Trustee in the manner described in its certificate delivered to you at the Closing Time or Date of Delivery, as the case may be (which fact such counsel need not determine by an inspection of the Offered Debt Securities), the Offered Debt Securities have been duly executed, issued and delivered by the Company and the provisions specified to be governed by English law constitute valid, binding and enforceable obligations of the Company entitled to the benefits of the Designated Indenture and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(B) The provisions of the Offered Debt Securities relating to subordination conform in all material respects as to legal matters to the description thereof contained in the Prospectus and the Prospectus Supplement under the headings "Description of Subordinated Debt Securities."
(C) Each of the Debt Security Deposit Agreement and the Designated Indenture has been duly authorized and executed by the Company.
(D) No authorizations, approvals, consents or licenses of the United Kingdom or of any U.K. governmental instrumentality, authority or court are required by law for the valid authorization, issuance and delivery of the Offered Debt Securities or the sale of the Book-Entry Debt Securities pursuant to this Agreement or to effect interest and all other payments (including on redemption) in United States dollars on the Offered Debt Securities except as have been obtained or made and remain in effect.
(E) Except as disclosed in the Prospectus, the Prospectus Supplement or the Registration Statement on the basis of United Kingdom law and published practice followed by the United Kingdom Inland Revenue at such Closing Time, no stamp duty, capital duty, registration or other issue or documentary taxes are payable in the United Kingdom on (A) the creation, issue or delivery by the Company of the Offered Debt Securities, or (B) assuming all of the following transactions (except the execution and delivery of the Debt Security Deposit Agreement and the deposit of the Offered Debt Securities thereunder by the Company) take place outside the United Kingdom and any instruments of transfer remain at all times outside the United Kingdom, the deposit of the Offered Debt Securities under the Debt Security Deposit Agreement by the Company, the purchase by the Underwriters of the Book-Entry Debt Securities, the sale and delivery by the Underwriters of the Book-Entry Debt Securities, the execution and delivery of this Agreement, the Debt Security Deposit Agreement or the applicable Terms Agreement or the consummation of the transactions contemplated hereby.
(F) Except as disclosed in the Prospectus, the Prospectus Supplement or the Registration Statement, on the basis of United Kingdom law and published practice followed by the United Kingdom Inland Revenue at such Closing Time, no taxes, levies, imposts or charges are required to be deducted or withheld from any payment of interest by the Company to holders of the Offered Debt Securities provided that the global securities representing such Offered Debt Securities are and continue to be quoted on the New York Stock Exchange, the London Stock Exchange or the Luxembourg Stock Exchange.
(G) The execution and delivery of this Agreement, the Terms Agreement, the Designated Indenture and the Debt Security Deposit Agreement, the issuance and delivery of the Offered Debt Securities, the sale of the Book-Entry Debt Securities, the consummation by the Company of the transactions contemplated in this Agreement, the applicable Terms Agreement, the Designated Indenture and the Debt Security Deposit Agreement and in the Registration Statement and compliance by the Company with the terms of this Agreement, the Designated Indenture, the applicable Terms Agreement and the Debt Security Deposit Agreement do not and will not result in any violation of the Memorandum or Articles of Association of the Company.
(viii) If the Offered Securities include Shares, such counsel's signed opinion shall also state that:
(A) The Offered Shares have been duly authorized and (subject to payment therefor in accordance with the applicable Terms Agreement) will be validly issued, fully paid and non-assessable; and the Offered Shares are not subject to the preemptive rights of any shareholder of the Company.
(B) The Offered Shares conform in all material respects as to
legal matters to the description thereof contained in the Prospectus
and the relevant supplement to the Prospectus under the headings
"Description of Dollar Preference Shares" and "Certain Terms of the
[insert series name(s)] Dollar Preference Shares," respectively.
(C) The Deposit Agreement has been duly authorized and executed by the Company.
(D) No authorizations, approvals, consents or licenses of the United Kingdom or of any U.K. governmental instrumentality, authority or court are required by law for the valid authorization, allotment, issuance and delivery of the Offered Shares or the sale of the ADSs pursuant to this Agreement or to effect dividend and all other payments (including on redemption) in United States dollars on the Offered Shares except as have been obtained or made and remain in effect.
(E) Except as disclosed in the Prospectus or Prospectus Supplement on the basis of United Kingdom law and published practice followed by the United Kingdom Inland Revenue at such Closing Time, no stamp duty, capital duty, registration or other issue or documentary taxes are payable in the United Kingdom on (A) the creation, issue or delivery by the Company of the Offered Shares or (B) assuming all of the following transactions (except the execution and delivery of the Deposit Agreement and the deposit of the Offered Shares thereunder by the Company) take place outside the United Kingdom and any instruments of transfer remain at all times outside the United Kingdom, the deposit of the Offered Shares under the Deposit Agreement by the Company, the purchase by the Underwriters of the ADSs (evidenced by ADRs), the sale and delivery by the Underwriters of the ADSs (evidenced by ADRs), the execution and delivery of this Agreement, the Deposit Agreement or the applicable Terms Agreement or the consummation of the transactions contemplated hereby.
(F) Except as disclosed in the Prospectus, on the basis of United Kingdom law and published practice followed by the United Kingdom Inland Revenue at such Closing Time, no taxes, levies, imposts or charges are required to be deducted or withheld from any payment of a dividend by the Company to Eligible U.S. Holders (as defined in the Registration Statement) in respect of the Offered Shares although a deduction (exceeding the amount of, and so preventing the payment of, such tax credit) will be withheld from a payment of any tax credit to which such an Eligible U.S. Holder is entitled under the U.K./U.S. Double Taxation Convention relating to income and capital gains.
(G) The execution and delivery of this Agreement, the Terms Agreement and the Deposit Agreement, the issuance and delivery of the Offered Shares, the sale of the ADSs, the consummation by the Company of the transactions contemplated in this Agreement, the applicable Terms Agreement and the Deposit Agreement and in the Registration Statement and the ADS Registration Statement and compliance by the Company with the terms of this Agreement, the applicable Terms Agreement and the Deposit Agreement do not and will not result in any violation of the Memorandum or Articles of Association of the Company.
The opinion of such counsel may state that their opinion is limited only to matters of English law. In rendering such opinion, such counsel may rely on such qualifications and assumptions as are customary and (without limitation) (A) rely as to matters of fact upon certificates of directors or officers of the Company and certificates of public officials, (B) assume that any document referred to in their opinion and executed by the Company has been duly authorized, executed and delivered pursuant to the laws of the State of New York and of the United States or England and that the obligations of the Company constitute legal, valid and binding obligations under the laws of the State of New York and of the United States and (C) rely as to matters governed by the laws of the State of New York and of the United States upon the opinion or opinions of Cleary, Gottlieb, Steen & Hamilton rendered pursuant to Section 6(d) hereof.
(c) At the applicable Closing Time, you shall have received a signed opinion of the Group General Manager, Legal and Compliance, or the Deputy Group Legal Advisor to the Company, dated as of the applicable Closing Time, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance satisfactory to the Underwriters, to the effect that:
(i) He has requested from the Company the originals or complete and accurate copies of all mortgages, charges and other documents creating security interests which the Company may have issued or given, and any trust deeds and loan agreements relating thereto to which the Company may be a party as a borrower, in each case, insofar as they create or provide for the issue of loan stock, notes, bonds or other forms of secured or unsecured indebtedness by way of loan capital or long-term borrowing other than deposits (collectively, the "Debenture Documents") and he has made a search of the files of the Company and each Significant Subsidiary (as such term is defined in Rule 1-02 of Regulation S-X of the Commission) incorporated under the laws of England and Wales at the English Companies Registry.
(ii) He has examined such searches and the Debenture Documents supplied to him and that upon the basis of such examination, he is of the opinion that the execution and delivery of this Agreement, the applicable Terms Agreement and the Deposit Agreement, if the Offered Securities include Shares, or the Designated Indenture and the Debt Security Deposit Agreement, if the Offered Securities include Debt Securities, the issuance and delivery of the Offered Securities, the sale of the ADSs, as applicable, the consummation by the Company of the transactions contemplated in such agreements and in the Registration Statement and the ADS Registration Statement, if the Offered Securities include Shares, and compliance by the Company with the terms of such agreements do not and will not conflict with, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, charge or security interest upon any property or assets of the Company pursuant to the terms of any such Debenture Documents, which would have a materially adverse effect on the financial condition or general affairs of the Company and its subsidiaries (considered as one enterprise).
(iii) The present authorized and issued share capital of the Company is as set forth or incorporated by reference in the Prospectus and all of such issued share capital is validly authorized and issued, fully paid and non-assessable.
Such opinion may state that it is limited to matters of English law. In rendering such opinion the Group General Manager, Legal and Compliance of HSBC Holdings plc, or the Deputy Group Legal Advisor of HSBC Holdings plc as the case may be, may (A) rely as to matters of fact upon certificates of directors or officers of the Company and certificates of public officials, (B) assume that any document referred to in his opinion and executed by the Company has been duly authorized, executed and delivered pursuant to the laws of the State of New York and of the United States or of England (as the case may be) and that the obligations of the Company constitute legal, valid and binding obligations under the laws of the State of New York and of the United States or of England and (C) rely as to matters governed by the laws of the State of New York and of the United States upon the opinion and letter of Cleary, Gottlieb, Steen & Hamilton rendered pursuant to Section 6(d) hereof.
(d) At the applicable Closing Time you shall have received a signed opinion and letter of Cleary, Gottlieb, Steen & Hamilton, U.S. counsel for the Company, dated as of the applicable Closing Time, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance satisfactory to the Underwriters, to the effect that:
(i) The statements set forth under the heading "Taxation" in the Prospectus, insofar as such statements purport to summarize certain federal income tax laws of the United States, constitute a fair summary of the principal U.S. federal income tax consequences of an investment in the Offered Securities.
(ii) The issuance and sale of the Offered Securities to the Underwriters pursuant to this Agreement, and the performance by the Company of its obligations in this Agreement and the Terms Agreement, (A) do not require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States or the State of New York, except such as have been obtained or effected under the 1933 Act and the 1939 Act (but, such counsel need not opine as to consents, approvals, authorizations, registrations or qualifications that may be required under the 1939 Act if the Offered Securities do not include Debt Securities), and (B) will not conflict with and do not result in a breach or violation of any law of the United States or the State of New York, or with respect to the United States or the State of New York, any judgement, decree or order of any court having jurisdiction over the Company or its properties.
(iii) Under the laws of the State of New York relating to
submission to jurisdiction, the Company has validly and irrevocably
submitted to the jurisdiction of any United States or state court located
in the State of New York, county of New York, and has validly appointed
HSBC Bank USA as its initial authorized agent for the purpose described in
Section 16.
(iv) If the Offered Securities include Debt Securities, such counsel's opinion shall also state that:
(A) The Designated Indenture has been duly executed and delivered by the Company under the federal laws of the United States and the laws of the State of New York and qualified under the 1939 Act, and assuming due authorization, execution and delivery by the Trustee, is a valid, binding and enforceable agreement of the Company, subject as to enforcement by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.
(B) The Debt Security Deposit Agreement has been duly executed and delivered by the Company under the federal laws of the United States and the laws of the State of New York and assuming due authorization, execution and delivery by the Debt Security Depositary, is a valid, binding and enforceable agreement of the Company, subject to the enforcement by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.
(C) The Company is not an "investment company" within the meaning of the 1940 Act, and the offer and sale of the Offered Debt Securities in the United States will not subject the Company to registration under, or result in a violation of, the 1940 Act.
(D) The statements set forth under the headings "Description of Subordinated Debt Securities" in the Prospectus and "Description of the Subordinated Debt Securities" in the Prospectus Supplement, insofar as such statements purport to summarize certain provisions of the Offered Securities or the Designated Indenture, provide a fair summary of such provisions.
(E) The performance by the Company of its obligations in the Designated Indenture and the Debt Security Deposit Agreement, (A) do not require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States or the State of New York, except such as have been obtained or effected under the 1933 Act and the 1939 Act, and (B) will not conflict with and do not result in a breach or violation of any law of the United States or the State of New York, or with respect to the United States or the State of New York, any judgement, decree or order of any court having jurisdiction over the company or its properties.
(v) If the Offered Securities include Shares, such counsel's opinion shall also state that:
(A) The Deposit Agreement has been duly executed and delivered by the Company under the federal laws of the United States and the laws of the State of New York and, assuming due authorization and execution by the Depositary, is a valid, binding and enforceable agreement of the Company, subject as to enforcement by applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity.
(B) The Company is not an "investment company" within the meaning of the 1940 Act, and the offer and sale of the Offered Shares in the United States will not subject the Company to registration under, or result in a violation of, the 1940 Act.
(C) Upon due issuance by the Depositary of ADRs against the deposit of Offered Shares in accordance with the provisions of the Deposit Agreement and due execution by one of the Depositary's officers, such ADRs will be duly and validly issued and will entitle the holders thereof to the rights specified therein and in the Deposit Agreement.
(D) The statements set forth under the heading "Description of American Depositary Receipts" in the Prospectus, insofar as such statements purport to summarize certain provisions of the Deposit Agreement, provide a fair summary of such provisions.
(E) The performance by the Company of its obligations in the Deposit Agreement, (A) do not require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States or the State of New York, except such as have been obtained or effected under the 1933 Act, and (B) will not conflict with and do not result in a breach or violation of any law of the United States or the State of New York, or with respect to the United States or the State of New York, any judgement, decree or order of any court having jurisdiction over the Company or its properties.
In giving their opinion, Cleary, Gottlieb, Steen & Hamilton may rely as to all matters governed by the laws of the United Kingdom upon the opinions rendered pursuant to Section 6(b) and (c) hereof.
Cleary, Gottlieb, Steen & Hamilton shall additionally state that,
(i) The Registration Statement (except the financial statements and schedules and other financial and statistical data included therein, and Exhibit 25, to the Form F-3, as to which they need express no view), at the time it became effective, and the Prospectus (except as aforesaid), as of the date thereof, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and, if Offered Debt Securities are being issued, the 1939 Act, as amended, and the rules and regulations thereunder. In addition, they do not know of any contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Prospectus that are not filed or described as required.
(ii) No information has come to their attention that causes them to believe that (i) the Registration Statement including the documents incorporated by reference therein (except the financial statements and schedules and other financial and statistical data included therein, as to which they need express no view), at the time it became effective, contained they need 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.
(iii) No information has come to their attention that causes them to believe that the Prospectus including the documents incorporated by reference therein (except the financial statements and schedules and other financial and statistical data included therein, as to which they need express no view), as of the date thereof or 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.
(e) At the applicable Closing Time, you shall have received a signed opinion of United States counsel for the Underwriters, dated as of the applicable Closing Time, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance reasonably satisfactory to you.
(f) At the applicable Closing Time, you shall have received a signed opinion of English solicitors for the Underwriters, dated as of the applicable Closing Time, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance reasonably satisfactory to you.
(g) At the applicable Closing Time, (i) there shall not have been, since the respective dates as of which information is given in the Registration Statement, any material adverse change in the financial condition, earnings or general affairs of the Company and its subsidiaries (considered as one enterprise), (ii) the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time pursuant to this Agreement, the applicable Terms Agreement or the Deposit Agreement, if the Offered Securities include Shares or the Debt Security Deposit Agreement and the Designated Indenture, if the Offered Securities include Debt Securities, and (iii) each of the representations and warranties of the Company set forth in Section 1(a) shall be accurate in all material respects as though expressly made at and as of the applicable Closing Time. At the applicable Closing Time, you shall have received a certificate of the Chief Executive Officer or any other executive officer of the Company and the Chief Financial Officer or the Financial Controller of the Company, dated as of the applicable Closing Time, to such effect.
(h) If such letter is being delivered less than 135 days after the date of the accountants' last audit of the Company's financial statements or their last review under SAS 71, on the date the applicable Terms Agreement is executed by the Company, you shall have received from KPMG Audit plc a letter, dated such date, in form and substance satisfactory to you, together with signed or reproduced copies of such letter for each of the other Underwriters, substantially in the form annexed hereto at Annex A.
(i) At the applicable Closing Time, you shall have received from KPMG Audit plc a letter, in form and substance satisfactory to you and dated as of the applicable Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 6(h), except that the specified date referred to shall be a date not more than five days prior to the applicable Closing Time.
(j) If the Offered Securities include Shares, at the applicable Closing Time, Emmet, Marvin & Martin LLP, counsel to the Depositary, shall have furnished to the Underwriters their written opinion, dated the Closing Time, in form and substance reasonably satisfactory to you, to the effect that (a) the Deposit Agreement has been duly authorized, executed and delivered by the Depositary and constitutes a valid, binding and enforceable obligation of the Depositary and (b) the ADRs issued under and in accordance with the provisions of the Deposit Agreement to evidence the ADSs representing the Offered Debt Securities will entitle the holders thereof to the rights specified therein and in the Deposit Agreement.
(k) If the Offered Securities include Debt Securities in the form of Book-Entry Debt Securities, at the applicable Closing Time, counsel to the Book-Entry Depositary shall have furnished to the Underwriters their written opinion, dated the Closing Time, in form and substance reasonably satisfactory to you, to the effect that (a) the Debt Security Deposit Agreement has been duly authorized, executed and delivered by the Book- Entry Depositary and constitutes a valid, binding and enforceable obligation of the Book-Entry Depositary and (b) the Book-Entry Debt Securities issued under and in accordance with the provisions of the Debt Security Deposit Agreement will entitle the holders thereof to the rights specified therein and in the Debt Security Deposit Agreement.
(l) At the Closing Time, U.S. counsel and English solicitors for the Underwriters shall have been furnished with all such documents, certificates, resolutions and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Offered Securities as contemplated in this Agreement and the matters referred to in Sections 6(e) and 6(f) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance and sale of the Offered Securities as contemplated in this Agreement shall be reasonably satisfactory in form and substance to you and to U.S. counsel and English solicitors for the Underwriters.
(m) If the Terms Agreement provides that the Offered Securities shall be listed (i) on the New York Stock Exchange, then at the applicable Closing Time, the Offered Securities shall have been duly authorized for listing by the New York Stock Exchange, Inc. or (ii) on the London Stock Exchange plc, then at the applicable Closing Time the UKLA will have granted permission for the admission of the Offered Securities to the Official List subject to allotment and the London Stock Exchange plc will have granted permission for the admission of the Offered Securities to trading or (iii) on the Luxembourg Stock Exchange, then at the applicable Closing Time the Luxembourg Stock Exchange shall have authorized the Offered Securities for listing subject to their issuance.
(n) Subsequent to the date of the applicable Terms Agreement, no downgrading shall have occurred in the rating accorded the Offered Securities by Moody's Investors Services, Inc. or Standard & Poor's Corporation.
(o) Subsequent to the date of the applicable Terms Agreement, there shall not have been any change in U.S. or U.K. taxation directly and materially adversely affecting U.S. purchasers of the Offered Securities or the imposition of exchange controls by the United States or the United Kingdom directly and materially affecting the Company's ability to pay interest or dividends in U.S. dollars.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the applicable Terms Agreement may be terminated by you on notice to the Company at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 5 herein. Notwithstanding any such termination, the provisions of Sections 8, 9 and 10 herein shall remain in effect.
SECTION 7. Conditions to Purchase of Option Securities. In the event that the Company grants to the Underwriters the option described in Section 3 to purchase all or any of the Option Securities, the Underwriters exercise such option and the Date of Delivery determined by you after consultation with the Company pursuant to Section 3 is later than the Closing Time, the obligations of the several Underwriters to purchase and pay for the Option Securities that they shall have respectively agreed to purchase pursuant to this Agreement are subject to the accuracy of the representations and warranties of the Company herein contained, to the performance by the Company of its obligations hereunder and to the following further conditions:
(a) Each of the Registration Statement and the ADS Registration Statement (if the Offered Securities include Shares) shall remain effective at the Date of Delivery, and at the Date of Delivery no stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement (if the Offered Securities include Shares) shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall be pending or, to your knowledge or the knowledge of the Company, shall be contemplated by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel for the Underwriters.
(b) At the Date of Delivery, the provisions of Section 6(g) shall have been complied with at and as of the Date of Delivery and, at the Date of Delivery, you shall have received a certificate of the Chief Executive Officer or any other executive officer of the Company, and the Chief Financial Officer or the Financial Controller of the Company, dated as of the Date of Delivery, to such effect.
(c) At the Date of Delivery, you shall have received a signed opinion of the Group General Manager, Legal and Compliance, of HSBC Holdings plc, or the Deputy Group Legal Advisor to HSBC Holdings plc, in either case dated as of the Date of Delivery, together with signed or reproduced copies of such opinion for each of the Underwriters, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 6(c).
(d) At the Date of Delivery, you shall have received signed opinions from
Norton Rose, English solicitors for the Company, Cleary, Gottlieb, Steen &
Hamilton, U.S. counsel for the Company, Emmet, Marvin & Martin LLP, counsel for
the Depositary, if the Offered Securities include Shares and the counsel for the
Book-Entry Depositary, if the Offered Securities include Debt Securities,
together with signed or reproduced copies of such opinions for each of the other
Underwriters, in each case in form and substance satisfactory to counsel for the
Underwriters, dated as of the Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinions required by Sections
6(b), 6(d), 6(j) and 6(k), respectively.
(e) At the Date of Delivery, you shall have received the signed opinions of U.S. counsel for the Underwriters, and English solicitors for the Underwriters, dated as of the Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinions required by Sections 6(e) and 6(f), respectively.
(f) At the Date of Delivery, you shall have received a letter from KPMG Audit plc, in form and substance satisfactory to you and dated as of the Date of Delivery, to the effect that they reaffirm the statements made in the respective letters furnished pursuant to Section 6(h) and 6(i), except that the specified date referred to shall be a date not more than five days prior to the Date of Delivery.
(g) At the Date of Delivery, U.S. counsel and English solicitors for the Underwriters shall have been furnished with all such documents, certificates, resolutions and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Option Securities as contemplated in this Agreement and the matters referred to in Sections 6(e) and 6(f) in order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all proceedings taken by the Company at or prior to the Date of Delivery in connection with the authorization, issuance and sale of the Option Securities as contemplated in this Agreement shall be reasonably satisfactory in form and substance to you and to U.S. counsel and English solicitors for the Underwriters.
SECTION 8. Indemnification. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever arising out of an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), the ADS Registration Statement (or any amendment thereto), if the Offered Securities include Shares, 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 or arising out of an untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) 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 investigation or proceeding by any govenmental agency or body, commenced or threatened, or of any claim whatsoever based on any such untrue statement or omission, or any such alleged untrue statement or omission, provided such settlement is effected with the written consent of the Company; and
(ii) against any and all expense whatsoever, as incurred (including fees and disbursements of counsel chosen by you), reasonably incurred in investigating, preparing or defending against any litigation or investigation or proceeding by any govenmental agency or body, commenced or threatened, or any claim whatsoever based on any such untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability, claim, damage or expense to the extent arising out of an 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 expressly for use in the Registration Statement (or any amendment thereto), the ADS Registration Statement (or any amendment thereto), if the Offered Securities include Shares, or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement (including its authorized representative) or the ADS Registration Statement, its agent for service of process 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 Section 8(a), as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), the Prospectus (or any amendment or supplement thereto), the ADS Registration Statement (or any amendment thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriter expressly for use in the Registration Statement (or any amendment thereto), the ADS Registration Statement (or any amendment thereto), or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified body shall give prompt notice 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 it from any liability which it may have otherwise than on account of this indemnity agreement. An indemnifying party may participate at its own expense in the defense of such action. In no event shall the indemnifying party or parties be liable for the fees and expenses of more than one 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.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceedings by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under this
Section 8 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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.
SECTION 9. Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in Section
8 is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters of
each offering of Offered Securities shall contribute to the aggregate losses,
liabilities, claims, damages and expenses, as incurred, of the nature
contemplated by said indemnity agreement incurred by the Company and one or more
of such Underwriters in respect of such offering in such proportions as will
reflect the relative benefits from the offering of such Offered Securities
received by the Company on the one hand and by such Underwriters on the other
hand, taking into account the portion of the proceeds of such offering realized
by each, provided that, if the Offered Securities are offered by Underwriters at
an initial public offering price set forth in a supplement to the Prospectus,
the relative benefits shall be deemed to be such that the Underwriters shall be
responsible for that portion of the aggregate losses, liabilities, claims,
damages and expenses represented by the percentage that the underwriting
discount appearing in such supplement bears to the initial public offering price
appearing therein and the company shall be responsible for the balance; provided
however, no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 9, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement (including its authorized
representative), and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as the Company.
SECTION 10. Representations Warranties and Agreements to Survive Delivery. The representations, warranties, indemnities, agreements and other statements of the Company or its officers set forth in or made pursuant to this Agreement will remain operative and in full force and effect regardless of any termination of this Agreement, or any investigation made by or on behalf of the Company or any Underwriter or controlling person and will survive delivery of and payment for any Offered Securities.
SECTION 11. Termination of Agreement. (a) This Agreement shall be subject to termination in the absolute discretion of the Underwriters by notice given to the Company by the Underwriter or the Underwriters designated as the lead underwriter(s) with respect to an offering of Securities on behalf of the Underwriters at any time at or prior to the Closing Time, if prior to such time there has occurred any (A)(1) suspension of trading in any securities issued by the Company (other than in connection with a redemption of securities), or (2) suspension or material limitation of trading generally on or by, as the case may be, the New York Stock Exchange or the London Stock Exchange plc or the United States over-the-counter market or the establishment of minimum prices on either of such exchanges or such market in any of the foregoing cases by the Commission or such exchange or other regulatory or governmental body having jurisdiction, (B) declaration of a general moratorium on commercial banking activities in New York or England by either Federal or New York State or English authorities, (C) outbreak or escalation of hostilities involving the United States or the United Kingdom, declaration of a national emergency or war by the United States or the United Kingdom or any other substantial international calamity or crisis or (D) material adverse change in the existing financial, political or general economic conditions in the United States or the United Kingdom, including any effect of international conditions on such conditions in the United States or the United Kingdom, that, in the reasonable judgment of the Underwriters is material and adverse and in the case of any of the events specified in clauses (C) or (D), such event singly or together with any other such event makes it, in the reasonable judgment of the Underwriters, impracticable to market or sell the Offered Debt Securities on the terms and in the manner contemplated herein.
SECTION 12. Default by One or More of the Underwriters. If one or more of the Underwriters participating in an offering of Offered Securities shall fail at the applicable Closing Time to purchase the Offered Securities, in the form of Book-Entry Debt Securities, ADSs or otherwise, that it or they are obligated to purchase pursuant to the applicable Terms Agreement (the "Defaulted Securities"), you shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms set forth in this Agreement; if, however, you have not completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the total number of Offered Securities to be purchased pursuant to such Terms Agreement, the non-defaulting Underwriters shall be obligated to purchase the full amount thereof in the proportions that their respective underwriting obligations bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the total number of the Offered Securities to be purchased pursuant to such Terms Agreement, the applicable Terms Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement and the applicable Terms Agreement.
In the event of any such default that does not result in a termination of this Agreement, either you or the Company shall have the right to postpone the applicable Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement, ADS Registration Statement or Prospectus (including any supplement thereto) or in any other documents or arrangements. As used herein, the term "Underwriter" includes any person substituted for an Underwriter pursuant to this Section.
SECTION 13. Default by the Company. If the Company shall fail at the Closing Time to sell and deliver the number of Offered Securities that it is obligated to sell pursuant to the applicable Terms Agreement, then the applicable Terms Agreement shall terminate without any liability on the part of any non-defaulting party except to the extent provided in Section 5 hereof and except that the provisions of Sections 8, 9 and 10 hereof shall remain in effect. No action taken pursuant to this Section shall relieve the Company from liability, if any, in respect of such default.
SECTION 14. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if delivered, mailed or transmitted by any standard form of telecommunication. Notices to you or the Underwriters shall be directed to you at ; and notices to the Company shall be directed to it at 8 Canada Square, London E14 5HQ, attention of D J Flint, Group Finance Director.
SECTION 15. Parties. This Agreement shall inure to the benefit of and be binding upon you and the Company and any Terms Agreement shall inure to the benefit of and be binding upon the Company and any Underwriter who becomes a party to a Terms Agreement and their respective successors. Nothing expressed or mentioned in this Agreement or a Terms Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto or thereto and their respective successors and the controlling persons and officers and directors referred to in Sections 8 and 9 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or a Terms Agreement or any provision herein or therein contained. This Agreement and any Terms Agreement and all conditions and provisions hereof or thereof are intended to be for the sole and exclusive benefit of the parties and their respective successors and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Offered Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. Submission to Jurisdiction. The Company irrevocably agrees that any suit, action or proceeding against the Company brought by any Underwriter or by any person who controls any Underwriter, arising out of or based upon this Agreement, the Designated Indenture or any applicable Terms Agreement or the transactions contemplated hereby or thereby may be instituted in any state or federal court in the Borough of Manhattan, The City of New York, New York, and irrevocably waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, and irrevocably submits to the nonexclusive jurisdiction of such courts in any such suit, action or proceeding. The Company has appointed HSBC Bank USA, 452 Fifth Avenue, New York, New York 10018-2706 (c/o Issuer Services) as its Authorized Agent (the "Authorized Agent") upon whom process may be served in any such suit, action or proceeding arising out of or based on this Agreement or the transactions contemplated hereby which may be instituted in any state or federal court in the Borough of Manhattan, The City of New York, New York, by any Underwriter or by any person who controls any Underwriter, and the Company expressly consents to the jurisdiction of any such court in respect of any such suit, action or proceeding, and waives any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents and warrants that the Authorized Agent has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company shall be deemed, in every respect, effective service of process upon the Company. Notwithstanding the foregoing, any suit, action or proceeding based on this Agreement or any Terms Agreement may be instituted by any Underwriter in any competent court in the United Kingdom.
SECTION 17. Governing Law and Time. This Agreement shall be governed by the laws of the State of New York. Specified times of the day refer to New York City time.
SECTION 18. Counterparts. 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. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof.
Very truly yours,
HSBC HOLDINGS PLC
Title:
Confirmed and accepted as of the date first above written:
Annex A
[Form of Comfort Letter]
THE COMPANIES ACT 1948
and
THE COMPANIES ACTS 1985 AND 1989
PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
and
ARTICLES OF ASSOCIATION
of
HSBC Holdings plc
Updated May 2002
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CERTIFICATE OF INCORPORATION
I Hereby Certify, That
VERNAT TRADING CO. LIMITED
is this day Incorporated under the Companies Act, 1948, and that the Company is Limited.
Given under my hand at London this First day of January One Thousand Nine Hundred and Fifty nine.
(Sd.) [Illegible] Registrar of Companies
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CERTIFICATE OF INCORPORATION ON CHANGE OF NAME
Whereas
VERNAT TRADING CO. LIMITED
was incorporated as a limited company under the Companies Act, 1948, on the first day of January, 1959.
And whereas by special resolution of the Company and with the approval of the Board of Trade it has changed its name.
Now therefore I hereby certify that the Company is a limited Company incorporated under the name of
VERNAT EASTERN AGENCIES LIMITED
Given under my hand at London, this tenth day of February One thousand nine hundred and fifty nine.
(Sd.) [Illegible] Assistant Registrar of Companies
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CERTIFICATE OF INCORPORATION
ON CHANGE OF NAME
I hereby certify that
VERNAT EASTERN AGENCIES LIMITED
having by special resolution and with the approval of the Secretary of State changed its name, is now incorporated under the name of
SILOM LIMITED
Given under my hand at Cardiff the 13TH AUGUST 1981
(Sd.) E.A. WILSON
Assistant Registrar of Companies
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CERTIFICATE OF INCORPORATION
ON CHANGE OF NAME
I hereby certify that
SILOM LIMITED
having by special resolution changed its name, is now incorporated under the name of
HSBC HOLDINGS LIMITED
Given under my hand at the Companies Registration Office, Cardiff the 12
DECEMBER 1990
(Sd.) A.M. EVANS an authorised officer
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CERTIFICATE OF INCORPORATION
ON RE-REGISTRATION OF PRIVATE COMPANY
AS A PUBLIC COMPANY
I hereby certify that
HSBC HOLDINGS LIMITED
formerly registered as a private company has this day been re-registered under the Companies Act 1985 as a public company under the name of
HSBC HOLDINGS plc
and that the company is limited.
Given under my hand at Cardiff the 24TH DECEMBER 1990
(Sd.) H A JELLIMAN
An Authorised Officer
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CERTIFICATE OF REGISTRATION
OF CHANGE OF NAME OF OVERSEA COMPANY
I hereby certify that
HSBC HOLDINGS LIMITED
which was incorporated in United Kingdom and has been registered in Hong Kong under part XI of the Companies Ordinance, has changed its corporate name and is now registered under the name of
HSBC Holdings plc.
Given under my hand this Seventeenth day of January One Thousand Nine Hundred and Ninety-one.
(Sd.) W.H. Kwok for Registrar General
(Registrar of Companies)
Hong Kong
SPECIAL RESOLUTIONS
OF
VERNAT EASTERN AGENCIES LIMITED
Passed 19th March, 1959
At an Extraordinary General Meeting of the above-named Company duly convened and held at Garrard House, Gresham Street, London, E.C.2, on the 19th day of March, 1959, the following Resolutions were duly passed as Special Resolutions:
RESOLUTIONS
1. That each of the shares of(pound)1 in the capital of the Company be sub-divided into 8 shares of 2s. 6d. each.
2. That for the purpose of acquiring the undertaking of The Eastern Agencies
(1946) Ltd., the nominal share capital of the Company be increased from
(pound)100 to(pound)150,000 by the creation of 1,199,200 shares of 2s. 6d.
each ranking pari passu in all respects with the existing shares in the
capital of the Company as subdivided by the last-preceding Resolution.
3. That the provisions of the Memorandum of Association with respect to the objects of the Company be altered by deleting sub-clauses (a) to (s) inclusive of Clause 3 and the whole of the declaration immediately following the end of sub-clause (s) aforesaid and by substituting therefor the several sub-clauses to Clause 3 which are lettered (A) to (R) inclusive and the declaration immediately following the end of sub-clause (R) aforesaid all of which are set forth in a reprint of the Company's Memorandum of Association as proposed to be altered by this Resolution, a copy of which reprint has been produced to this Meeting and signed by the Chairman thereof for the purposes of identification.
4. That the regulations contained in the printed document submitted to this Meeting and signed by the Chairman thereof for the purposes of identification be and the same are hereby approved and adopted as the Articles of Association of the Company in substitution for and to the exclusion of all the existing Articles of Association thereof.
(Sd.) J.G. Jekyll Secretary
THE COMPANIES ACT, 1948
COMPANY LIMITED BY SHARES
ORDINARY RESOLUTION
of
VERNAT EASTERN AGENCIES LIMITED
Passed 18th August, 1964
At an Extraordinary General Meeting of the Members of the above-named Company duly convened and held on Tuesday the 18th day of August, 1964, the following Resolutions were duly passed as Ordinary Resolutions, namely:--
RESOLUTIONS
1. THAT the nominal share capital of the Company be increased to
(pound)300,000 by the creation of an additional 1,200,000 shares of 2/6d
each.
2. THAT 1,200,000 Shares of 2/6d each credited as fully paid be distributed as capital among the holders of the existing shares registered at the close of business on the 17th July, 1964, in the proportion of one new share for every share then held, such new shares to rank pari passu in all respects with the existing shares of the Company and to rank for the full amount of all dividends declared after the date of the passing of this Resolution AND THAT sufficient of the Capital and Revenue Reserves of the Company be capitalised, appropriated and applied in making payment in full, at par, of the new shares hereby directed to be distributed.
(Sd.) J.E. HART Secretary
VERNAT EASTERN AGENCIES LIMITED
At an EXTRAORDINARY GENERAL MEETING of the above-named Company held on 20 July 1981 the following Resolution No. 1 was passed as an ORDINARY RESOLUTION and Resolutions Nos. 2, 3, and 4 as SPECIAL RESOLUTIONS:--
RESOLUTIONS
1. THAT:--
(a) the capital of the Company be increased from (pound)300,000 to(pound)301,500 by the creation of 150,000 new Ordinary Shares of 1p each;
(b) it is desirable that the sum of (pound)1,500 (being part of the Company's Reserves) be capitalised and accordingly that the Directors be and they are hereby authorised and directed to appropriate and apply that sum as capital in paying up in full at par the 150,000 unissued Ordinary Shares of 1p each of the Company and to allot and distribute such shares credited as fully paid to and amongst those persons who shall be registered in the books of the Company as the holders of the existing 2,400,000 issued and fully paid shares of 12 1/2p each in the capital of the Company immediately prior to the passing of this Resolution, in proportion to the number of such issued shares so held by them respectively;
(c) forthwith upon the allotment of Ordinary Shares pursuant to paragraph
(b) of this Resolution each of the said existing 2,400,000 issued and
fully paid shares be converted into and become and be designated 1
Deferred Share of 12 1/2p having attached thereto the rights and
privileges and being subject to the restrictions set out in the
Articles of Association of the Company as altered by Resolution No. 3
below.
2. THAT the name of the Company be changed to "SILOM LIMITED".
3. THAT the provisions of the Memorandum of Association with respect to the objects of the Company be altered by deleting sub-clause (A) of Clause 3 and substituting therefor the following sub-clause:--
"(A) To purchase, exchange, improve, mortgage, charge, rent, let on lease, hire, surrender, license, accept surrenders of, and otherwise acquire any freehold, leasehold or other property, chattels and effects, whether situate in England or elsewhere, erect, pull-down, repair, alter, develop or otherwise deal with any building or buildings and adapt the same for the purposes of investment or re-investment."
4. THAT subject to the passing of Resolution No. 1 above the Regulations contained in the document now submitted to this Meeting and signed for the purpose of identification by the Chairman thereof be and the same are hereby adopted as the Articles of Association of the Company to the exclusion of and in substitution for the existing Articles of Association.
(Sd.) J.P.R. BROWN Chairman
THE COMPANIES ACT 1948
AND
THE COMPANIES ACTS 1985 AND 1989
COMPANY LIMITED BY SHARES
RESOLUTION
of
SILOM LIMITED
Passed : 3 December 1990
At an Extraordinary General Meeting of the above-named Company, duly convened and held on 3 December 1990, the following Resolution was duly passed as a Special Resolution:
SPECIAL RESOLUTION
THAT the name of the Company be changed to "HSBC Holdings Limited".
THE COMPANIES ACT 1948
and
RESOLUTION
of
At an Extraordinary General Meeting of the above-named Company, duly convened and held on 18 December 1990, the following Resolution was duly passed as a Special Resolution:
SPECIAL RESOLUTION
"THAT the Company be re-registered forthwith as a public company and that:
(a) the name of the Company be changed to "HSBC Holdings plc";
(b) the Memorandum of Association of the Company be altered by:
(i) the insertion of the following new Clause 2:
"2. The Company is a public company."
and by renumbering the existing Clauses 2 to 5 of the Memorandum accordingly; and
(ii) amending Clause 4 (as re-numbered by sub-paragraph (b)(i) above with respect to the objects of the Company by inserting the following new sub-paragraph in Clause 4(A):
"4(A)(1) To act as the holding and co-ordinating company of a group of companies of which the Company is for the time being the holding company."
and by re-numbering the existing Clause 4(A) (as re-numbered by sub-paragraph (b)(i) above) as sub-paragraph (2) of Clause 4(A).
(c) the regulations contained in the document now submitted to this Meeting and signed for the purposes of identification by the Chairman thereof be and they are hereby adopted as the Articles of Association of the Company in place of the existing Articles of Association.
(Sd.) J.E. Strickland Chairman
RESOLUTIONS
of
At an Extraordinary General Meeting of the above-named Company, duly convened and held on 25 March, 1991, the following Resolutions were duly passed of which Resolutions Nos. 1 and 3 were passed as Special Resolutions and Resolution No. 2 was passed as an Ordinary Resolution:
SPECIAL RESOLUTION
1. THAT conditional on and with effect from the date on which the Scheme of Arrangement dated 1 February, 1991 under section 166 of the Companies Ordinance (Cap. 32) of Hong Kong between The Hongkong and Shanghai Banking Corporation Limited and the holders of its shares of HK$2.50 each becomes effective:
(A) (a) every 100 of the Ordinary Shares of 1p each of the Company shall
be consolidated into one Ordinary Share of (pound)1;
(b) every 8 of the Deferred Shares of 12 1/2p each of the Company
shall be consolidated into one Deferred Share of(pound)1;
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(C) each resulting Ordinary Share of (pound)1 and each resulting Deferred Share of (pound)1 shall be converted into and redesignated as a Non-voting Deferred Share of (pound)1 having the rights and privileges and being subject to the restrictions set out in the new Articles of Association of the Company to be adopted pursuant to paragraph (C) of this Resolution;
(B) the authorised share capital of the Company shall be increased to HK$20,000,000,000 denominated in Hong Kong dollars and (pound)301,500 denominated in pounds sterling by the creation of 2,000,000,000 Ordinary Shares of HK$10 each having the rights and privileges and being subject to the restrictions set out in the new Articles of Association of the Company to be adopted pursuant to paragraph (C) of this Resolution;
(C) the Regulations contained in the document now submitted to this Meeting and signed for the purpose of identification by the Chairman thereof be and the same are hereby adopted as the new Articles of Association of the Company to the exclusion of and in substitution for the existing Articles of Association; and
(D) the provisions of the Memorandum of Association with respect to the objects of the Company be altered by deleting Clause 4 thereof and substituting therefor a new Clause 4 in the form contained in the document now submitted to this Meeting and signed for the purpose of identification by the Chairman thereof.
ORDINARY RESOLUTION
2. THAT conditional on and with effect from the date on which the Scheme of Arrangement dated 1 February, 1991 under section 166 of the Companies Ordinance (Cap. 32) of Hong Kong between The Hongkong and Shanghai Banking Corporation Limited and the holders of its shares of HK$2.50 each ("the Scheme") becomes effective the Directors be and they are hereby generally authorised pursuant to and for the purposes of section 80 of the Companies Act 1985 ("the Act") to exercise all the powers of the Company to allot relevant securities (within the meaning of that section) up to an aggregate nominal amount of HK$20,000,000,000 provided that this authority shall be limited so that, otherwise than pursuant to (i) issues of Ordinary Shares of HK$10 each of the Company pursuant to the Scheme or (ii) a rights issue where relevant securities are offered to shareholders on a fixed record date in proportion to their then holdings of shares (subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or having regard to any restrictions or obligations under the laws of or the requirements of any recognised regulatory body or stock exchange in any territory outside Hong Kong or otherwise howsoever) or (iii) any scrip dividend scheme or similar arrangements implemented in accordance with the Articles of Association of the Company, the aggregate nominal amount of the relevant securities to be allotted by the Directors pursuant to this authority shall not in aggregate exceed five per cent. of the nominal amount of the issued Ordinary share capital of the Company immediately following the issue of Ordinary Shares of HK$10 each of the Company pursuant to the Scheme and such authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 1991 save that this authority shall allow the Company before the expiry of this authority to make offers or agreements which would or might require relevant securities to be allotted after such expiry and the Directors may allot relevant securities in pursuance of such offers or agreements as if the authority conferred hereby had not expired.
SPECIAL RESOLUTION
3. THAT, subject to the passing of Resolution No. 2 set out in the Notice dated 25 March, 1991 convening this Meeting and to such Resolution becoming effective, the Directors be and they are hereby empowered, pursuant to section 95 of the Companies Act 1985 ("the Act") to allot equity securities (as defined in section 94 of the Act) pursuant to the authority conferred by the aforesaid Resolution No. 2 as if section 89(1) of the Act did not apply to any such allotment provided that this power shall expire at the conclusion of the Annual General Meeting of the Company to be held in 1991 save that this power shall enable the Company prior to the expiry of this power to make offers or agreements which would or might require equity securities to be allotted after the expiry of this power and the Directors may allot equity securities in pursuance of such offers or agreements as if the power conferred hereby had not expired.
W. Purves Chairman
HSBC Holdings plc
CONSENT TO VARIATION OF CLASS RIGHTS
We, the undersigned, being the registered holders of all the issued Deferred Shares of 12 1/2p each of HSBC Holdings plc hereby consent to and sanction any variation or abrogation of the rights attaching to such shares to be effected by the passing of Special Resolution No. 1 set out in the Notice of Extraordinary General Meeting of HSBC Holdings plc to be held on 25 March, 1991.
Dated 25 March, 1991
J.M. Gray W.L. Chan
.................... ..................
Duly authorised Duly authorised
for and on behalf of for and on behalf of
HSBC Holdings BV Hong Kong & Shanghai
Banking Corporation
(Nominees) Limited
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HSBC Holdings plc
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CONSENT TO VARIATION OF CLASS RIGHTS
We, the undersigned, being the registered holder of all the issued Ordinary Shares of 1p each of HSBC Holdings plc hereby consent to and sanction any variation or abrogation of the rights attaching to such shares to be effected by the passing of Special Resolution No. 1 set out in the Notice of Extraordinary General Meeting of HSBC Holdings plc to be held on 25 March 1991.
Dated 25 March, 1991
J.M. Gray W.L. Chan
.................... ..................
Duly authorised Duly authorised
for and on behalf of for and on behalf of
HSBC Holdings BV Hongkong & Shanghai
Banking Corporation
(Nominees) Limited
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HSBC Holdings plc
CONSENT TO VARIATION OF CLASS RIGHTS
We, the undersigned, being the registered holder of all the issued Non-voting Deferred Shares of (pound)1 each of HSBC Holdings plc hereby consent to and sanction any variation, modification or abrogation of the rights attaching to such shares to be effected by the passing of the Special Resolution set out in the Notice of Extraordinary General Meeting of HSBC Holdings plc dated 11 May 1992.
Dated 11 May 1992
R.P. Hennessy
.....................
Duly authorised
for and on behalf of
WTL Limited
At the Extraordinary General Meeting of HSBC Holdings plc held on Level 18,
1 Queen's Road Central, Hong Kong on Tuesday, 9 June 1992, the following SPECIAL
RESOLUTION was passed:
SPECIAL RESOLUTION
THAT:
(A) the proposed acquisition by the Company and/or any of its subsidiaries and/or subsidiary undertakings of any of the shares in the capital of Midland Bank plc ("Midland") on such terms and conditions as may be approved by the Directors of the Company (or any duly constituted committee thereof) (the "Directors") and the offer by the Company to the shareholders of Midland upon the terms and subject to the conditions set out or referred to in the offer document and listing particulars dated 8 May 1992 and in the circular to shareholders of the Company dated 11 May 1992 each issued by or on behalf of the Company (copies of which documents are produced to the Meeting and for identification purposes signed by the Chairman of the Meeting) or upon and subject to the terms and conditions of any amended, varied, revised, extended, additional and/or other offer or offers or election(s) thereunder approved by the Directors (together the "Offer" which expression shall include any such amended, varied, revised extended, additional and/or other offer(s) or election(s)) be and they are hereby approved and that any acquisitions by the Company of shares in and of options over shares in Midland from any of the Directors or persons connected with any of the Directors be and are hereby approved for the purposes of section 320 of the Companies Act 1985, and that the Directors be and are hereby authorised to waive, amend, vary, revise or extend any of the terms and conditions of the Offer, to make any additional and/or other offer(s) to acquire shares in the capital of Midland and to do all such acts or things as they may consider necessary or desirable in connection with the Offer including, without prejudice to the generality of the foregoing, any such acts and things as are referred to in the said documents relating to regulatory issues, taxation or otherwise;
(B) the Directors be and they are hereby authorised to make and implement such offers or other proposals to, or arrangements with, the holders of options over shares in Midland including options under any employees' share scheme operated by Midland for the benefit of its employees, in each case on such terms and subject to such conditions as the Directors may consider appropriate;
(C) the Directors be and they are hereby authorised to procure the Company and/or any of its subsidiaries and/or subsidiary undertakings to enter into, amend and/or perform any agreement, indemnity or arrangement with any third party or parties and/or waive any limitation of liability contained therein, whether in the ordinary course of business or otherwise, which they may consider in their absolute discretion necessary or desirable in connection with the Offer and/or the purchase of any shares in the capital of Midland and under which the Company and/or any of its subsidiaries and/or subsidiary undertakings agrees to grant or receive any option in respect of such shares and/or indemnity, and/or accept liability for costs, expenses, commissions and/or losses, whether in whole or in part and whether or not on a contingent basis, incurred by such third party or parties directly or indirectly in connection with the purchase, holding and/or disposal of any such shares; and
(D) subject to and conditional upon the Offer becoming or being declared unconditional in all respects (other than as regards the coming into effect or passing of this Resolution):
(i) the authorised share capital of the Company denominated in pounds sterling be increased from (pound)301,500 to (pound)1,125,301,500 by the creation of 1,500,000,000 Ordinary Shares of 75p each such shares having attached thereto the rights and privileges and being subject to the limitations and restrictions set forth in the Articles of Association of the Company as altered by this Resolution;
(ii) the Articles of Association of the Company be altered:
(a) by deleting the expressions and meanings of "Ordinary Share" and "(pound)" in Article 2.1 and substituting the following expressions and meanings respectively:
"Ordinary Share an Ordinary Share of the Company having a nominal amount of HK$10 or 75p;
(pound) and p or pence pounds sterling and pence";
(b) by deleting Article 4.1 and substituting therefor the following:
"4.1 The authorised share capital of the Company is
HK$20,000,000,000 denominated in Hong Kong dollars divided
into 2,000,000,000 Ordinary Shares of HK$10 each and
(pound)1,125,301,500 denominated in pounds sterling divided
into 1,500,000,000 Ordinary Shares of 75p each and 301,500
Non-voting Deferred Shares of (pound)1 each.
4.2 The Ordinary Shares rank pari passu in all respects.
4.3 Fully paid Ordinary Shares confer identical rights in respect of capital, dividends (save where and to the extent that any such share is issued on terms providing that it shall rank for dividend as from a particular date), voting and otherwise notwithstanding that they are denominated in different currencies and shall be treated as if they are one single class of shares.";
(c) by substituting the following words in Article 5.1(2) for the words "after all other holders of shares in the Company have been repaid their capital in full and such holders have received an additional amount of (pound)10,000,000 per share":
"after there shall have been distributed (in cash or specie)
to the holders of the Ordinary Shares the amount of
(pound)10,000,000 in respect of each Ordinary Share held by
them respectively. For this purpose distributions in currency
other than sterling shall be treated as converted into
sterling, and the value of any distribution in specie shall be
ascertained in sterling, in each case in such manner as the
Board or the Company in general meeting may approve.";
(d) by inserting the following new Article as Article 6.2 immediately after Article 6.1:
"6.2 (1) This Article 6.2 applies to any rights issue of any New
Securities (as hereinafter defined) or any invitation
to subscribe for any such securities which the Company
may make in favour of holders of Ordinary Shares.
(2) Whenever this Article 6.2 applies, the Company shall
subject to the following provisions of this Article 6.2
extend the same invitation to all holders of Ordinary
Shares at the same price and on the same terms.
(3) Notwithstanding anything herein contained, whenever
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this Article 6.2 applies:
(a) the Board may make such exclusions or other arrangements as the Board may deem necessary or expedient in relation to fractional entitlements or having regard to any restrictions or obligations under the laws of or the requirements of any regulatory body or stock exchange in any territory or otherwise howsoever;
(b) the Board may offer to holders of Ordinary Shares denominated in one currency Ordinary Shares denominated in the same or some other currency (or the right to subscribe for or to convert into or to exchange any securities for any such Ordinary Shares) and may give to any holders of Ordinary Shares a choice as to the currency in which the Ordinary Shares which they acquire (whether in pursuance of the rights issue or any such right as aforesaid) are denominated;
(c) the Board may determine that the price per New Security may be converted into such currency or currencies at such rate or rates of exchange as the Board may in its absolute discretion determine and so that the invitation may be made to holders of Ordinary Shares in different currencies and so that such holders may be given the option of subscribing in one or more different currencies;
(d) if the Board determines to exercise the powers conferred by paragraphs (b) or (c) above, it need not exercise such powers in the same manner or to the same extent in relation to all holders of Ordinary Shares but may exercise such powers in relation to such holders of Ordinary Shares and in such manner and to such extent as it shall in its absolute discretion think fit.
(4) In this Article 6.2, "New Securities" means Ordinary Shares or any securities conferring the right to subscribe for or convert into or to exchange such security for Ordinary Shares.";
(e) by deleting in Article 35.1 the words "Without prejudice to the provisions of Articles 35.2 and 40, the" and substituting therefor the word "The", by adding at the end of Article 35.1(c) the words "and in respect of shares denominated in the same currency" and by deleting Article 35.2;
(f) by deleting Article 40;
(g) by inserting the following paragraph at the end of Article 45.1:
"Any resolution for consolidation and division of Ordinary Shares into shares of a larger nominal amount pursuant to paragraph (b) of this Article and any resolution for sub-division of Ordinary Shares into shares of a smaller amount pursuant to paragraph (d) of this Article shall constitute a variation of the rights attached to the Ordinary Shares unless such resolution shall affect all the Ordinary Shares in issue in like manner and to like extent.";
(h) by inserting the following new Article as Article 47.2 immediately after Article 47.1:
"47.2 Without prejudice to the generality of Article 47.1, the passing and/or implementation of any special resolution for the reduction of the capital paid up on any Ordinary Shares and for the cancellation of such Shares accordingly for the purpose only of, and followed by, the application (as nearly as may be) of the reserve then arising in or towards the payment up in full of the same number of new Ordinary Shares denominated in a different currency (which need not be any currency in which any issued Ordinary Share is then denominated) but having the same rights as and ranking pari passu in all respects with Ordinary Shares for the purposes of these Articles and the distribution of such new Ordinary Shares credited as fully paid to the holders of the Ordinary Shares so cancelled in proportion to the number of such Shares then held by them respectively shall not involve any variation or abrogation of the rights attached to any Ordinary Shares cancelled as aforesaid (or of the rights attached to any other Ordinary Share) and all Ordinary Shares whenever issued are subject to the restriction that the passing and/or implementation of any such resolution shall not require the consent or sanction of the holders of any Ordinary Shares to be given in accordance with Article 49.1 or otherwise.";
(i) by inserting the following new Article as Article 49.2 immediately after Article 49.1:
"49.2 Ordinary Shares whenever issued are subject to the restriction that the rights attached to them may be varied or abrogated by a special resolution of the Company without the separate consent or sanction (given in accordance with Article 49.1 or otherwise) of the holders of any of the Ordinary Shares provided that the rights attached to all the Ordinary Shares are thereby varied or abrogated in like manner and to like extent and accordingly neither the passing nor the implementation of any such resolution constitutes a variation or abrogation of any of the rights attached to any of the Ordinary Shares.";
(j) by deleting in Article 51.1 the words "on which any shares may be issued" and substituting therefor the words "of issue of or rights attached to any shares"; by deleting in Article 51.1 the words "or by the allotment of further shares ranking in priority thereto in any respect" and by inserting in Article 51.1 before the words "pari passu" the words "in priority to or";
(k) by deleting in each of Articles 52.1 and 53.1 the words "and in Hong Kong or such other place" and substituting therefor the words "and in such place";
(l) by deleting the third sentence of Article 54.1;
(m) by inserting the following Article as Article 55.5 immediately after the existing Article 55.4:
"55.5 The holders of Ordinary Shares denominated in a currency other than sterling shall (if they would not do so apart from this paragraph) have the same rights as are enjoyed by holders of Ordinary Shares denominated in sterling under section 376(2)(b) of the Act and accordingly any amount paid up on any Ordinary Share in any currency other than sterling shall for the purposes of such provision be treated as if it had been converted into sterling at such rate of exchange prevailing at or about the date of the requisition as the Board shall determine".;
(n) by deleting the words "or a Disclosure Notice (as defined in Article 40)" in Article 81.1; by deleting the words "or a Disclosure Notice" in Articles 81.3, 81.5 and 81.6; by deleting the words "and of Article 40.6," in Article 81.4(a); by deleting the words "or from a Disclosure Notice" in Article 81.4(a), and by deleting the words in Article 81.4(b) and substituting therefor the words ""interested" shall be construed in accordance with section 212 of the Act";
(o) by deleting Article 84.2;
(p) by deleting Article 91.1 and substituting the following:
"At each annual general meeting of the Company one-third of the Directors who are subject to retirement by rotation or, if their number is not three or a multiple of three, the number nearest to but not exceeding one-third shall retire from office.";
(q) by deleting in Article 95.1 the words "but with the age of 65 being substituted for all references therein to the age of 70";
(r) by deleting the words "within Hong Kong" in Article 100.1 and substituting therefor the words "within the United Kingdom or Hong Kong";
(s) by deleting the words "in Hong Kong" in Article 113.1 and substituting therefor "in the United Kingdom or Hong Kong";
(t) by deleting with effect from 1 January 1993 in Article 120.1 the words "No meetings of the Board shall be held in the United Kingdom";
(u) by deleting "Hong Kong" wherever that name appears in Article 121.1 and substituting therefor the words "the United Kingdom or Hong Kong";
(v) by deleting with effect from 1 January 1993 in Article 125.1 the words commencing with "Provided always ......" and ending with the words "...... in the United Kingdom";
(w) by deleting "Hong Kong" wherever that name appears in Article 126.1 and substituting therefor the words "the United Kingdom or Hong Kong" and by deleting wherever those words appear in Article 126.1 the words "(other than the United Kingdom)";
(x) by deleting with effect from 1 January 1993 in Article 127.1 the words "and in particular no meetings of a committee of the Board shall be held in the United Kingdom";
(y) by adding the following sentence at the end of Article 142.1:
"If and whenever the shares on which any such dividend is declared are denominated in different currencies, the dividend shall be declared in a single currency (which may be any currency).";
(z) by adding the following sentence as a second sentence in Article 143.1:
"The Board shall declare such dividend on all shares ranking pari passu in a single currency (which may be any currency) even if such shares are denominated in different currencies.";
(aa) by deleting Article 144.1 and substituting the following:
"144.1 Except as otherwise provided by the terms of
issue of or rights attached to any shares, all
dividends shall be declared and paid according to
the amounts paid up (otherwise than in advance of
calls) on the shares on which the dividend is
paid. For this purpose the same amount shall be
deemed to have been paid up on all fully paid
Ordinary Shares notwithstanding that they may be
denominated in different currencies. Subject as
aforesaid, all dividends shall be apportioned and
paid proportionately to the percentage of the
nominal amount (which shall in the case of
Ordinary Shares be treated as the same amount as
is hereby treated as paid up on all fully paid
Ordinary Shares) paid up on the shares during any
portion or portions of the period in respect of
which the dividend is paid, but if any share is
issued on terms providing that it shall rank for
dividend as from a particular date, it shall rank
for dividend accordingly.";
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(bb) by deleting the words "other than Hong Kong dollars" in Article 148.2;
(cc) by deleting in Article 149.1 the words "are left uncashed on two consecutive occasions or on one occasion if such cheque, warrant or order is returned to the Company undelivered" and substituting therefor the words "are returned to the Company or left uncashed on two consecutive occasions";
(dd) by deleting Article 151 and substituting the following:
"151.1 The Board may, with the prior authority of an
ordinary resolution of the Company and subject to
such terms and conditions as the Board may
determine, offer to any holders of Ordinary Shares
the right to elect to receive in accordance with
the provisions of this Article Ordinary Shares of
the same or a different currency, credited as
fully paid, instead of cash in any currency in
respect of the whole (or some part, to be
determined by the Board) of any dividend specified
by the ordinary resolution. The following
provisions shall apply:
(a) the said resolution may specify a particular dividend,
or may specify all or any dividends declared within a
specified period or periods;
(b) the entitlement of each holder of Ordinary Shares to new
Ordinary Shares shall be such that the relevant value of
the entitlement shall be as nearly as possible equal to
(but not greater than) the cash amount (disregarding any
tax credit) of the dividend that such holder would have
received by way of dividend in the currency in which such
dividend was declared or as converted into the equivalent
amount in another currency if and in such manner as the
Board shall so determine. For this purpose "relevant
value" shall be calculated by reference to the average of
the middle market quotations for the Ordinary Shares on
The Stock Exchange, as derived from the Daily Official
List, for the day on which the Ordinary Shares are first
quoted "ex" the relevant dividend and the four subsequent
dealing days, or in such other manner as the Board may
determine on such basis as it considers to be fair and
reasonable and the cash amount of the relevant dividend
in a particular currency shall be converted into the
equivalent amount in another currency if and in such
manner as the Board shall so determine. A certificate or
report by the Auditors as to the amount of the relevant
value in respect of any dividend shall be conclusive
evidence of that amount;
(c) no fractions of a share shall be allotted;
(d) the Board shall, after determining the basis of
allotment, notify the holders of Ordinary Shares in
writing of the right of election offered to them, and
specify the procedure to be followed and place at which,
and the latest time by which, elections must be lodged in
order to be effective;
(e) the Board may exclude from any offer any holders of
Ordinary Shares or any Ordinary Shares held by a
Depositary where the Board considers that the making of
the offer to them or in respect of such shares would or
might involve the contravention of the laws of any
territory or that for any other reason the offer should
not be made to them or in respect of such shares;
(f) the Board may determine that every duly effected election
in respect of any Ordinary Shares shall be binding on
every successor in title to the holder thereof;
(g) the dividend (or that part of the dividend in respect of
which a right of election has been offered) shall not be
payable on Ordinary Shares in respect of which an
election has been duly made ("the elected Ordinary
Shares") and instead additional Ordinary Shares shall be
allotted, credited as fully paid, to the holders of the
elected Ordinary Shares on the basis of their entitlement
pursuant to paragraph (b) of this Article 151.1. For such
purpose the Board may capitalise, out of any amount for
the time being standing to the credit of any reserve or
fund (including any share premium account or capital
redemption reserve) or of any of the profits which could
otherwise have been applied in paying dividends in cash
as the Board may determine, a sum equal to the aggregate
nominal amount or amounts of the additional Ordinary
Shares to be allotted on that basis and apply it in
paying up in full the appropriate number of unissued
Ordinary Shares for allotment and distribution to the
holders of the elected Ordinary Shares on that basis. A
Board resolution capitalising any part of such reserve or
fund or profits shall have the same effect as if such
capitalisation had been declared by ordinary resolution
of the Company in accordance with Article 153 and in
relation to any such capitalisation the Board may
exercise all the powers conferred on them by Article 153
without need of such ordinary resolution;
(h) the additional Ordinary Shares so allotted shall rank
pari passu in all respects with each other and with the
fully paid Ordinary Shares in issue on the record date
for the dividend in respect of which the right of
election has been offered, except that they will not rank
for any dividend or other distribution or other
entitlement which has been declared, paid or made by
reference to such record date; and
(i) the Board may terminate, suspend or amend any offer of
the right to elect to receive Ordinary Shares in lieu of
any cash dividend at any time.";
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(ee) by deleting in Article 153.1(b) the words commencing with "to the holders of Ordinary Shares in proportion to the nominal amounts of the shares" and ending with the words "and were distributed by way of dividend" and substituting therefor the words "to the holders of Ordinary Shares (whether or not fully paid) in proportion to the number of such shares held by them respectively";
(ff) by adding the following further proviso at the end of Article 153.1(b):
"and provided further that the sum appropriated as hereinbefore mentioned need not be in the same currency as the securities which it is to be used to pay up but in that event and for the purpose of determining the extent to which such securities are paid up by such sum the Board shall select such rate of exchange as it shall consider appropriate.";
(gg) by inserting the following new Article as Article 153.2:
"153.2 Whenever the Ordinary Shares are denominated in
different currencies and the Board is given
authority under Article 153.1 to make an allotment
of new Ordinary Shares credited as fully paid the
holders of Ordinary Shares shall unless in respect
of all or any of such Shares the Board otherwise
resolves receive by virtue of such allotment
Ordinary Shares (credited as fully paid)
denominated in the same currency as the Ordinary
Shares in right of which they are allotted. If the
Board resolves otherwise in respect of any
Ordinary Shares it may determine either that the
holders of such Shares should receive, or that the
holders of such Shares should have the right to
elect to receive, Ordinary Shares denominated in
some currency other than that in which their
Shares are denominated and so that the Board may
if it thinks fit exercise its powers under this
Article differently in relation to different
Ordinary Shares. The rights attached to an
Ordinary Share shall not be deemed to be varied or
abrogated by reason only that any Ordinary Share
offered or allotted to the holder thereof in
pursuance of this Article is denominated in a
different currency from or the same currency as
any other Ordinary Share allotted to any other
holder of Ordinary Shares on the same occasion or
is denominated in the same or a different currency
from the Ordinary Share in right of which it is
allotted.";
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(hh) by adding the following sentence at the end of Article 154.1:
"Different dates may be fixed as record dates in respect of shares registered on different Registers."; and
(ii) by inserting the following as a new Article 166.1 and renumbering the existing Article 166.1 as Article 166.2:
"166.1If the Company is wound up, the assets available
for distribution among the holders of Ordinary
Shares shall be distributed among such holders in
proportion to the number of Ordinary Shares held
by them respectively notwithstanding that such
Ordinary Shares may be denominated in different
currencies. The distribution of any amount under
this Article to the holder of any Ordinary Share
which at the date of such distribution is not
fully paid up shall be adjusted so as to ensure
that the holder gives credit against such
distribution for the amount remaining unpaid on
his share.";
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(iii) in substitution for any other authority conferred upon the Directors to allot relevant securities of the Company (but without prejudice to any exercise of such other authority prior to the date on which this Resolution becomes effective), the Directors be and they are hereby generally and unconditionally authorised pursuant to and for the purposes of section 80 of the Companies Act 1985 ("the Act") to exercise all the powers of the Company to allot relevant securities (within the meaning of that section) up to an aggregate nominal amount of HK$3,698,512,180 and (pound)1,125,000,000 provided that this authority shall be limited so that, otherwise than pursuant to:
(a) the Offer, proposals and arrangements referred to in paragraphs (A) and (B) of this Resolution or any acquisition of shares of Midland pursuant to sections 428 to 430F of the Act or otherwise; or
(b) a rights issue in favour of (a) ordinary shareholders where the relevant securities respectively attributable to the interests of all ordinary shareholders are proportionate (or as nearly as may be) to the respective numbers of Ordinary Shares held by them and (b) holders of securities, bonds, debentures or warrants which, in accordance with the rights attaching thereto, are entitled to participate in such a rights issue, but subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or having regard to any restrictions or obligations under the laws of or the requirements of any regulatory body or stock exchange in any territory or otherwise howsoever; or
(c) the terms of any share scheme for employees of the Company or any of its subsidiaries; or
(d) any scrip dividend scheme or similar arrangements implemented in accordance with the Articles of Association of the Company,
the nominal amount of relevant securities to be allotted by the Directors pursuant to this authority shall not in aggregate exceed HK$815,074,391 and (pound)26,400,000 (equal to approximately 5 per cent of the nominal amount of each class of the Ordinary Shares of the Company expected to be in issue assuming full acceptance of the Offer) and such authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 1993 save that this authority shall allow the Company before the expiry of this authority to make offers or agreements which would or might require relevant securities to be allotted after such expiry and the Directors may allot relevant securities in pursuance of such offers or agreements as if the authority conferred hereby had not expired;
(iv) the Directors be and they are hereby empowered, pursuant to section 95 of the Act, to allot equity securities (as defined by section 94 of the Act) pursuant to the authority conferred by this Resolution as if section 89(1) of the Act did not apply to any such allotment provided that this power shall expire at the conclusion of the Annual General Meeting of the Company to be held in 1993 save that this power shall enable the Company prior to the expiry of this power to make offers or agreements which would or might require equity securities to be allotted after the expiry of this power and the Directors may allot equity securities in pursuance of such offers or agreements as if the power conferred hereby had not expired, and all authorities previously conferred under section 95 of the Act shall be revoked on the date on which this Resolution becomes effective but without prejudice to any exercise of such other authorities prior to the date on which this Resolution becomes effective; and
(v) the Directors be and are hereby empowered:
(a) to exercise the power conferred on them by Article 151 of the Articles of Association of the Company as altered by this Resolution in respect of all or part of any dividend payable in respect of any financial period of the Company ending on or before 31 December 1996;
(b) to capitalise from time to time the appropriate nominal amount or amounts of new shares of the Company falling to be allotted pursuant to elections made under the Company's scrip dividend scheme out of the amount or amounts standing to the credit of any reserve account or fund of the Company, to apply that sum in paying up in full the relevant number of such new shares and to allot such new shares pursuant to such elections; and
(c) generally to implement the Company's scrip dividend scheme on such terms and conditions as the Directors may from time to time determine and to take such other actions as the Directors may deem necessary or desirable from time to time in respect of the Company's scrip dividend scheme.
W Purves Chairman
THE COMPANIES ACTS 1985 AND 1989
PUBLIC COMPANY LIMITED BY SHARES
RESOLUTION
of
HSBC Holdings plc
At the Separate General Meeting of the holders of the Ordinary Shares of HK$10 each in the capital of HSBC Holdings plc held on Level 18, 1 Queen's Road Central, Hong Kong on Tuesday, 9 June 1992, the following EXTRAORDINARY RESOLUTION was passed:
EXTRAORDINARY RESOLUTION
THAT this Separate General meeting of the holders of the Ordinary Shares of HK$10 each in the capital of the Company ("the Ordinary Shares") hereby approves and sanctions on behalf of the holders of all the Ordinary Shares the passing as a Special Resolution of the Company of the Resolution set out in the Notice dated 11 May 1992 convening an Extraordinary General Meeting of the Company for Tuesday, 9 June 1992 and approves and sanctions on behalf as aforesaid each and every variation, modification or abrogation of the rights attached to the Ordinary Shares as is or may be involved in or effected by or pursuant to the passing or coming into effect of the said Resolution as aforesaid or as results or may result from any issue of shares or other securities contemplated by the said Resolution.
W Purves Chairman
THE COMPANIES ACTS 1985 AND 1989
PUBLIC COMPANY LIMITED BY SHARES
RESOLUTIONS
of
HSBC Holdings plc
At the Annual General Meeting of the above-named Company duly convened and held on 28 May 1993, the following Resolutions were duly passed:
ORDINARY RESOLUTION
4 THAT the Directors be and they are hereby generally and unconditionally authorised pursuant to and for the purposes of section 80 of the Companies Act 1985 ("the Act") to exercise all the powers of the Company to allot relevant securities (within the meaning of that section) up to an aggregate nominal amount of HK$3,089,694,650 and (pound)204,018,865 provided that this authority shall be limited so that, otherwise than pursuant to:
(a) a rights issue, or other issue in favour of (i) ordinary shareholders where the relevant securities respectively attributable to the interests of all ordinary shareholders are proportionate (or as nearly as may be) to the respective number of Ordinary Shares held by them and (ii) holders of securities, bonds, debentures or warrants which, in accordance with the rights attaching thereto, are entitled to participate in such a rights issue, or other issue, but subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or securities represented by depositary receipts or having regard to any restrictions or obligations under the laws of or the requirements of any regulatory body or stock exchange in any territory or otherwise howsoever; or
(b) the terms of any share scheme for employees of the Company or any of its subsidiary undertakings; or
(c) any scrip dividend scheme or similar arrangements implemented in accordance with the Articles of Association of the Company,
the nominal amount of relevant securities to be allotted by the Directors
pursuant to this authority shall not in aggregate exceed HK$845,515,260 and
(pound)30,602,829 (equal to approximately 5 per cent. of the nominal amount
of each class of Ordinary Shares of the Company in issue at the date of the
Notice of this Meeting) and such authority shall expire at the conclusion
of the Annual General Meeting of the Company to be held in 1994 save that
this authority shall allow the Company before the expiry of this authority
to make offers or agreements which would or might require relevant
securities to be allotted after such expiry and the Directors may allot
relevant securities in pursuance of such offers or agreements as if the
authority conferred hereby had not expired.
SPECIAL RESOLUTIONS
5 THAT, subject to the passing of Resolution No. 4 set out in the Notice convening this Meeting, the Directors be and they are hereby empowered, pursuant to section 95 of the Companies Act 1985 ("the Act") to allot equity securities (as defined by section 94 of the Act) pursuant to the authority conferred by Resolution No 4 as if section 89(1) of the Act did not apply to any such allotment, provided that this power shall expire at the conclusion of the Annual General Meeting of the Company to be held in 1994 save that this power shall enable the Company prior to the expiry of this power to make offers or agreements which would or might require equity securities to be allotted after the expiry of this power and the Directors may allot equity securities in pursuance of such offers or agreements as if the power conferred hereby had not expired.
9 THAT:
(A) the authorised share capital of the Company denominated in pounds
sterling be increased from (pound)1,125,301,500 to (pound)1,625,301,500
by the creation of 500,000,000 non-cumulative preference shares of
(pound)1 each, such shares having attached thereto the rights and
privileges and being subject to the limitations and restrictions set
forth in the Articles of Association of the Company as altered by this
resolution;
(B) in addition to and without prejudice to any other authority conferred upon the Directors to allot relevant securities of the Company including the authority conferred by Resolution No. 4 set out in the Notice convening this Meeting, the Directors be and they are hereby generally and unconditionally authorised pursuant to and for the purposes of section 80 of the Companies Act 1985 to exercise all the powers of the Company to allot all the 500,000,000 non-cumulative preference shares of (pound)1 each created by paragraph (A) of this resolution, and this authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 1994 save that this authority shall allow the Company before the expiry of this authority to make offers or agreements which would or might require the allotment of all or any of such shares after such expiry and the Directors may allot such shares in pursuance of such offers or agreements as if the authority conferred hereby had not expired;
(C) the Articles of Association of the Company be altered:
(i) by adding the following expression and meaning in Article 2.1:
"Sterling Preference Share a non-cumulative preference share of (pound)1";
(ii) by deleting Article 4.1 and substituting therefor the following:
"4.1 The authorised share capital of the Company is
HK$20,000,000,000 denominated in Hong Kong dollars divided
into 2,000,000,000 Ordinary Shares of HK$10 each and
(pound)1,625,301,500 denominated in pounds sterling divided
into 1,500,000,000 Ordinary Shares of 75p each, 500,000,000
Sterling Preference Shares of (pound)1 each and 301,500
Non-voting Deferred Shares of (pound)1 each.";
(iii) by renumbering the existing Articles 5 and 5.1 as Articles 5A and 5A.1 respectively and by inserting the following as a new Article 5:
5 Rights of the Sterling Preference Shares
5.1 The following rights and restrictions shall be attached to the Sterling Preference Shares:
(1) The Sterling Preference Shares shall rank pari passu inter se. They shall confer the rights and be subject to the limitations set out in this Article. They shall also confer such further rights (not being inconsistent with the rights set out in this Article) and be subject to such further limitations and restrictions as may be attached by the Board to such shares prior to allotment. Whenever the Board has power under this Article to determine any of the rights attached to any of the Sterling Preference Shares, the rights so determined need not be the same as those attached to the Sterling Preference Shares which have then been allotted or issued. The Sterling Preference Shares may be issued in one or more separate series and each series shall be identified in such manner as the Board may determine without any such determination or identification requiring any alteration to these Articles.
(2) Each Sterling Preference Share shall confer the following rights as to dividend, capital, the receipt of notices of meetings, attendance at meetings and voting:
Income
(a) the right (subject to the provisions of paragraph (4) of this Article, if applicable) in priority to the payment of any dividend to the holders of Ordinary Shares and in priority to or pari passu with any payment of any dividend to the holders of any other class of shares in issue (other than shares which by their terms rank in priority to the Sterling Preference Shares as regards income) to a non-cumulative preferential dividend in sterling payable at such rate (whether fixed, variable or floating or to be determined by a specified procedure, mechanism or formula) on such dates and on such other terms and conditions as may be determined by the Board prior to allotment thereof;
Capital
(b) the right in a winding up of the Company (but not, unless otherwise provided by the terms of issue of such share, upon a redemption, reduction or purchase by the Company of any of its share capital) to receive out of the assets of the Company available for distribution to its members in priority to any payment to the holders of the Ordinary Shares and in priority to or pari passu with the holders of any other class of shares of the Company in issue (other than shares which by their terms rank in priority to the Sterling Preference Shares as regards repayment of capital):
(i) a sum in sterling equal to
(A) the amount of any dividend which is due for payment after the date of commencement of the winding up but which is payable in respect of a period ending on or before such date; and
(B) if the date of commencement of the winding up falls before the last day of a period in respect of which a dividend would have been payable and which began before such date, any further amount of dividend which would have been payable had such date been the last day of that period
but only to the extent that any such amount or further amount was, or would have been, payable as a cash dividend in accordance with or pursuant to this Article; and
(ii) subject thereto, a sum equal to the amount paid up or credited as paid up on such share together with such premium (if any) as may be determined by the Board (or by a procedure, mechanism or formula determined by the Board) prior to allotment thereof (and so that the Board may determine that such premium is payable only in specified circumstances);
Receipt of notices
(c) the right to have sent to the holder of such share (at the same time as the same are sent to the holders of Ordinary Shares) all notices of general meetings of the Company and a copy of every circular or other like document sent out by the Company to the holders of Ordinary Shares.
Attendance and voting at meetings
(d) the right to attend and vote at general meetings of the Company:-
(i) if the dividend which is (or, but for any applicable provision of paragraph (4) of this Article, would be) most recently payable on such share shall not have been paid in full;
(ii) if a resolution is to be proposed at the meeting varying or abrogating any of the rights attached to the class of shares of which such share forms part (and then only to speak and vote upon the relevant resolution); or
(iii)in such other circumstances, and upon and subject to such terms, as the Board may determine prior to allotment of such share;
but not otherwise, together with the right, if so determined by the Board prior to allotment of such share, to join in a requisition of a general meeting of the Company in such circumstances, and upon and subject to such terms, as the Board may determine prior to allotment of such share.
Whenever holders of Sterling Preference Shares are entitled to vote on a resolution, on a show of hands every such holder who is present in person shall have one vote and on a poll every such holder who is present in person or by proxy shall have one vote for every (pound)1 in nominal amount of Sterling Preference share capital held by him.
Limitations
(3) No Sterling Preference Share shall:-
(a) confer any right to participate in the profits or assets of the Company other than that set out in sub-paragraphs (2)(a) and (b) of this Article;
(b) subject to the Act, confer any right to participate in any offer or invitation by way of rights or otherwise to subscribe for additional shares or securities in the Company;
(c) confer any right of conversion; or
(d) confer any right to participate in any issue of bonus shares or shares issued by way of capitalisation of reserves save as set out in sub-paragraph (4)(d) of this Article.
Further provision as to income
(4) All or any of the following provisions shall apply in relation to any Sterling Preference Shares of any series ("relevant Sterling Preference Shares") if so determined by the Board prior to allotment thereof:-
(a) (i) if, on any date ("the relevant date") on which a dividend ("the relevant dividend") would otherwise fall to be paid on any relevant Sterling Preference Shares, the profits of the Company available for distribution are, in the opinion of the Board, insufficient to enable payment in full to be made of the relevant dividend, then:-
(A) none of the relevant dividend shall be payable; or
(B) the Board shall (after payment in full, or the setting aside of a sum required for payment in full, of all dividends payable on or before the relevant date on any shares in the capital of the Company in priority to the relevant Sterling Preference Shares) apply such profits, if any, in paying dividends to the holders of participating shares (as defined below) pro rata to the amounts of dividend on participating shares accrued and payable on or before the relevant date. For the purposes of this paragraph, the expression "participating shares" shall mean the relevant Sterling Preference Shares and any other shares in the capital of the Company which rank pari passu as to participation in profits with the relevant Sterling Preference Shares and on which either (1) a dividend is payable on the relevant date or (2) arrears of cumulative dividend are unpaid at the relevant date,
but so that, if the Board determines prior to allotment of any relevant Sterling Preference Shares that the provisions of this sub-paragraph (a)(i) shall apply in relation thereto, they shall apply one (but not both) of (A) and (B) above;
(ii) if it shall subsequently appear that any such dividend which has been paid in whole or in part should not, in accordance with the provisions of this sub-paragraph, have been so paid, then provided the Board shall have acted in good faith, they shall not incur any liability for any loss which any shareholder may suffer in consequence of such payment having been made;
(b) if in the opinion of the Board the payment of any dividend on any relevant Sterling Preference Shares would breach or cause a breach of the Bank of England's capital adequacy requirements from time to time applicable to the Company and/or any of its subsidiaries then none of such dividend shall be payable;
(c) if a dividend or any part thereof on any relevant Sterling Preference Shares is not paid for the reasons specified in sub-paragraphs (a) or (b) above, the holders of such shares shall have no claim in respect of such non-payment save as provided in sub-paragraph (d) below (if applicable);
(d) (i) the provisions of this sub-paragraph (d) shall apply where
any dividend otherwise payable on a particular date on any
relevant Sterling Preference Shares (a "relevant
instalment") is, for the reasons specified in sub-paragraphs
(a)(i)(A) or (b) above, not payable and the amounts (if any)
standing to the credit of any of the Company's reserves,
including capital redemption reserve (if any) and share
premium account (if any), or profit and loss account and
available for the purpose are in aggregate sufficient to be
applied and capable of being applied in paying up in full at
par additional Sterling Preference Shares on the basis
hereinafter provided in this sub-paragraph (d);
(ii) on the date for payment of the relevant instalment had such instalment been paid, the Board shall, subject to the Act, allot and issue credited as fully paid to each holder of relevant Sterling Preference Shares such additional nominal amount of Sterling Preference Shares (disregarding any fractional entitlement) as is equal to an amount determined by multiplying the cash amount of the relevant instalment which would have been payable to him had such instalment been payable (exclusive of any associated tax credit) by a factor to be determined by the Board prior to allotment of the relevant Sterling Preference Shares;
(iii) for the purposes of paying up additional Sterling Preference Shares to be allotted pursuant to this sub-paragraph (d), the Board shall appropriate, out of such of the accounts or reserves of the Company available for the purpose as they shall determine, a sum equal to the aggregate nominal amount of the additional Sterling Preference Shares then to be allotted and shall make all appropriations and applications of such sum and all allotments and issues of fully paid Sterling Preference Shares and generally do all acts and things required to give effect thereto as they shall determine to be necessary or expedient;
(iv) as from the date of allotment thereof the additional Sterling Preference Shares allotted pursuant to this sub-paragraph (d) shall confer the same rights and be subject to the same limitations as, and shall rank pari passu in all respects with, the relevant Sterling Preference Shares save only as regards participation in the relevant instalment;
(v) if any additional Sterling Preference Shares falling to be allotted pursuant to this sub-paragraph (d) cannot be allotted by reason of any insufficiency in the Company's authorised share capital or in the amount of relevant securities which the Board is authorised to allot in accordance with section 80 of the Companies Act 1985, the Board shall convene a general meeting, to be held as soon as practicable, for the purpose of considering a resolution or resolutions effecting an appropriate increase in the authorised share capital and granting the Board appropriate authority to allot relevant securities;
(vi )the Board may undertake and do such acts and things as it may consider necessary or expedient for the purposes of giving effect to the provisions of this sub-paragraph (d).
(e) if any dividend on any relevant Sterling Preference Shares is not paid in full (or a sum is not set aside to provide for its payment in full), the Company may not (without the written consent of three quarters in nominal value of, or the sanction of an extraordinary resolution passed at a separate general meeting of, the holders of relevant Sterling Preference Shares) thereafter redeem, reduce, purchase or otherwise acquire for any consideration any other share capital of the Company ranking pari passu with or after the relevant Sterling Preference Shares (and may not set aside or establish any sinking fund for any such redemption, reduction, purchase or other acquisition) until such time as dividends on the relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment of the relevant Sterling Preference Shares shall have been paid in full (or a sum shall have been set aside to provide for such payment in full);
(f) if any dividend on any relevant Sterling Preference Shares is not paid in full (or a sum is not set aside to provide for its payment in full), no dividend may thereafter be declared or paid on any other share capital of the Company ranking as to dividend after the relevant Sterling Preference Shares (and no sum may be set aside for the payment of any such dividend on any other such share capital) until such time as dividends on the relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment of the relevant Sterling Preference Shares shall have been paid in full (or a sum shall have been set aside to provide for such payment in full);
(g) dividends payable on Sterling Preference Shares shall accrue from and to the dates determined by the Board prior to allotment thereof, and the amount of (or in respect of) any dividend payable in respect of any period shorter than a full dividend period will be calculated on the basis of a 365 day year (or, in a leap year, a 366 day year), and the actual number of days elapsed in such period.
Redemption
(5) (a) Unless otherwise determined by the Board in relation to Sterling
Preference Shares of any series prior to allotment thereof, the
Sterling Preference Shares shall, subject to the provisions of
the Act, be redeemable at the option of the Company;
(b) In the case of any series of Sterling Preference Shares which are
to be so redeemable:
(i) the Company may, subject to the provisions of the Act, redeem
on any Redemption Date (as hereinafter defined) all or some
only of the Sterling Preference Shares of such series by
giving to the holders of the Sterling Preference Shares to be
redeemed not less than 14 days' nor more than 60 days' prior
notice in writing (a "Notice of Redemption") of the relevant
Redemption Date. "Redemption Date" means, in relation to a
Sterling Preference Share of a particular series, any date
which falls no earlier than five years and one day after the
first date of allotment of Sterling Preference Shares of that
series (or such later date as the Board determines prior to
allotment);
(ii)there shall be paid on each Sterling Preference Share so
redeemed, in sterling, the aggregate of the nominal amount
thereof and any premium credited as paid up on such share
together with the sum which would have been payable pursuant
to sub-paragraph (2)(b)(i) of this Article if the Redemption
Date had been the date of commencement of a winding up of the
Company;
(iii) in the case of redemption of some only of the Sterling
Preference Shares in any series, the Company shall for the
purpose of determining the particular Sterling Preference
Shares to be redeemed cause a drawing to be made at the Office
or such other place as the Board may approve in the presence
of the Auditors;
(iv)any Notice of Redemption given under sub-paragraph (b)(i)
above shall specify the applicable Redemption Date, the
particular Sterling Preference Shares to be redeemed and the
redemption price (specifying the amount of the accrued and
unpaid dividend per share to be included therein and stating
that dividends on the Sterling Preference Shares to be
redeemed will cease to accrue on redemption), and shall state
the place or places at which documents of title or such other
evidence as may be accepted by the Board in respect of such
Sterling Preference Shares are to be presented and surrendered
for redemption and payment of the redemption monies is to be
effected. Upon such Redemption Date, the Company shall redeem
the particular Sterling Preference Shares to be redeemed on
that date subject to the provisions of this paragraph and of
the Act. No defect in the Notice of Redemption or in the
giving thereof shall affect the validity of the redemption
proceedings
(v) payments in respect of the amount due on redemption of a
Sterling Preference Share shall be made by sterling cheque
drawn on a bank in London or upon the request of the holder or
joint holders not later than the date specified for the
purpose in the Notice of Redemption by transfer to a sterling
account maintained by the payee with a bank in London or by
such other method as the Board may determine. Such payment
will be made against presentation and surrender of the
relative certificate at the place or one of the places
specified in the Notice of Redemption or against such other
evidence as may be accepted by the Board and if any
certificate or other evidence aforesaid so surrendered
includes any Sterling Preference Shares not to be redeemed on
the relevant Redemption Date the Company shall within 14 days
thereafter issue to the holder, free of charge a fresh
certificate or other evidence aforesaid in respect of such
Sterling Preference Shares.
All payments in respect of redemption monies will in all
respects be subject to any applicable fiscal or other laws;
(vi)as from the relevant Redemption Date the dividend on the
Sterling Preference Shares due for redemption shall cease to
accrue except on any such Sterling Preference Shares in
respect of which, upon due surrender of the certificate or
other evidence aforesaid, payment of the redemption monies due
on such Redemption Date shall be improperly withheld or
refused, in which case such dividend, at the rate then
applicable, shall be deemed to have continued and shall
accordingly continue to accrue from the relevant Redemption
Date to the date of payment of such redemption monies. Such
Sterling Preference Shares shall not be treated as having been
redeemed until the redemption monies in question together with
the accrued dividend thereon shall have been paid;
(vii) if the due date for the payment of the redemption monies on
any Sterling Preference Share is not a day on which banks in
London are open for business (a "Sterling Business Day") then
payment of such monies will be made on the next succeeding day
which is a Sterling Business Day and without any interest or
other payment in respect of such delay; and
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(viii) the receipt of the holder for the time being of any Sterling Preference Shares (or, in the case of joint registered holders, the receipt of any one of them) for the monies payable on redemption thereof shall constitute an absolute discharge to the Company in respect thereof.
(c) Upon the redemption or purchase of any Sterling Preference Shares the Board shall have power without any further resolution or consent to convert the authorised but unissued Sterling Preference Shares existing as a result of such redemption or purchase into shares of any other class of share capital into which the authorised share capital of the Company is or may be divided of the same nominal amount in sterling as the Sterling Preference Shares or into unclassified shares of the same nominal amount in sterling as the Sterling Preference Shares;
(d) Any Sterling Preference Shares redeemed pursuant to this paragraph
(5) shall be cancelled on redemption.
Purchase
(6) Subject to the provisions of the Act, the Company may at any time purchase any Sterling Preference Shares (i) in the market, (ii) by tender (available alike to all holders of the same class of Sterling Preference Shares) or (iii) by private treaty, in each case upon such terms as the Board shall determine.
Consolidation and division
(7) Pursuant to the authority given by the passing of the resolution adopting this Article the Board may consolidate and divide and/or sub-divide any Sterling Preference Shares into shares of a larger or smaller amount.
Restrictions on the Company
(8) All or part of the provisions of this paragraph shall apply in relation to Sterling Preference Shares of any series ("relevant Sterling Preference Shares") if so determined by the Board prior to the allotment thereof and the Board may determine to attach other restrictions to relevant Sterling Preference Shares by their terms of issue. Save with the written consent of the holders of three quarters in nominal value of, or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of, the relevant Sterling Preference Shares, the Board shall not capitalise any part of the profits available for distribution or purchase or redeem any shares of the Company if after such capitalisation, purchase or redemption the amount of the profits available for distribution would be less than a multiple, determined by the Board prior to allotment of relevant Sterling Preference Shares, of the aggregate amount of the annual dividends (exclusive of any associated tax credit) payable on the Sterling Preference Shares then in issue and any other preference shares then in issue ranking as regards dividend pari passu with or in priority to them or any of them.
Further preference shares
(9) The special rights attached to any Sterling Preference Shares of any series allotted or in issue shall not (unless otherwise provided by their terms of issue) be deemed to be varied by the creation or issue of any other preference shares or further shares in any currency ("new shares") ranking as regards participation in the profits and assets of the Company pari passu with or in priority to such Sterling Preference Shares and so that any new shares ranking pari passu with such Sterling Preference Shares may either carry rights and restrictions identical in all respects with such Sterling Preference Shares or any of them or rights and restrictions differing therefrom in any respect including but without prejudice to the generality of the foregoing in that:
(a) the rate of and/or basis of calculation of dividend may differ and the dividend may be cumulative or non-cumulative;
(b) the new shares or any series thereof may rank for dividend as from such date as may be provided by the terms of issue thereof and the dates of payment of dividend may differ;
(c) a premium may be payable on return of capital or there may be no such premium;
(d) the new shares may be redeemable at the option of the holder or of the Company, or may be non-redeemable, and if redeemable at the option of the Company they may be redeemable at different dates and on different terms from those applying to the Sterling Preference Shares; and
(e) the new shares may be convertible into Ordinary Shares or any other class of shares ranking as regards participation in the profits and assets of the Company pari passu with or after such Sterling Preference Shares in each case on such terms and conditions as may be prescribed by the terms of issue thereof.
Variation of class rights
(10) (a) Subject to the provisions of the Act:
(i) all or any of the rights, preference, privileges, limitations or restrictions for the time being attached to the Sterling Preference Shares may from time to time (whether or not the Company is being wound up) be varied or abrogated with the consent in writing of the holders of not less than three-quarters in nominal value of the Sterling Preference Shares of all series in issue or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of the Sterling Preference Shares, voting as a single class without regard for series; and
(ii)all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to Sterling Preference Shares of any series may be varied or abrogated so as to affect adversely such rights on a basis different from any other series of Sterling Preference Shares with the consent in writing of the holders of not less than three-quarters in nominal value of the Sterling Preference Shares of such series or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of Sterling Preference Shares of such series.
All the provisions of these Articles as to general meetings of the Company shall mutatis mutandis apply to any such separate general meeting, but so that the necessary quorum shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class, that every holder of shares of the class shall be entitled on a poll to one vote for every share of the class held by him, that any holder of shares of the class present in person or by proxy may demand a poll and that at any adjourned meeting of the holders one holder present in person or by proxy (whatever the number of shares held by him) shall be a quorum.
(b) Unless otherwise provided by its terms of issue, the rights attached to any Sterling Preference Share shall not be deemed to be varied or abrogated by a reduction of any share capital or purchase by the Company or redemption of any share capital in each case ranking as regards participation in the profits and assets of the Company in priority to or pari passu with or after such Sterling Preference Share.
W Purves Chairman
THE COMPANIES ACT 1985 AND 1989
PUBLIC COMPANY LIMITED BY SHARES
RESOLUTIONS
OF
HSBC HOLDINGS PLC
At a Board Meeting of HSBC Holdings plc duly convened and held on 22 March 1996, the following resolutions were duly passed pursuant to Section 380 (as amended by Regulation 40(3)):
RESOLUTIONS
1. Pursuant to Regulation 16(2) of the Uncertificated Securities Regulations 1995 ("the Regulations"), IT WAS RESOLVED that:
(a) title to the Ordinary Shares of 75p each in the capital of the Company (the "75p Shares"), in issue or to be issued, may be transferred by means of a relevant system (as defined in the Regulations);
(b) such relevant system shall include the relevant system of which CRESTCo Limited is to be the Operator (as defined in the Regulations);
(c) the 75p Shares shall not include any shares referred to in Regulation 17; and
(d) this resolution shall become effective immediately.
2. Pursuant to Regulation 16(2) of the Uncertificated Securities Regulations 1995 ("the Regulations"), IT WAS RESOLVED that:
(a) title to the Ordinary Shares of HK$10 each in the capital of the Company (the "HK$10 Shares"), in issue or to be issued, may be transferred by means of a relevant system (as defined in the Regulations);
(b) such relevant system shall include the relevant system of which CRESTCo Limited is to be the Operator (as defined in the Regulations);
(c) the HK$10 Shares shall not include any shares referred to in Regulation 17; and
(d) this resolution shall become effective immediately.
W Purves Chairman
PUBLIC COMPANY LIMITED BY SHARES
RESOLUTIONS
of
At the Annual General Meeting of HSBC Holdings plc held at Barbican Hall, Barbican Centre, London EC2Y 8DS on Friday, 30 May 1997, the following Resolutions were passed:
ORDINARY RESOLUTIONS
4 THAT pursuant to Article 104.1 of the Articles of Association of the Company with effect from 1 January 1997 the Directors (other than alternate directors) shall be entitled to receive (pound)25,000 per annum by way of fees for their services as Directors.
5 THAT the Directors be and are hereby empowered:
(a) to exercise the power conferred upon them by Article 151 of the Articles of Association of the Company in respect of all or part of any dividend payable in respect of any financial period of the Company ending on or before 31 December 2001;
(b) to capitalise from time to time the appropriate nominal amount or amounts of new shares of the Company falling to be allotted pursuant to elections made under the Company's scrip dividend scheme out of the amount or amounts standing to the credit of any reserve account or fund of the Company, to apply that sum in paying up in full the relevant number of such new shares and to allot such new shares pursuant to such elections; and
(c) generally to implement the Company's scrip dividend scheme on such terms and conditions as the Directors may from time to time determine and to take such other actions as the Directors may deem necessary or desirable from time to time in respect of the Company's scrip dividend scheme.
6 THAT the Directors be and they are hereby generally and unconditionally
authorised pursuant to and for the purposes of section 80 of the Companies
Act 1985 to exercise all the powers of the Company to allot relevant
securities (within the meaning of that section) up to an aggregate nominal
amount of HK$1,790,628,600 and (pound)565,333,400 (of which up to
(pound)500,000,000 shall be in the form of non-cumulative Sterling
Preference Shares of (pound)1 each) provided that this authority shall be
limited so that, otherwise than pursuant to:
(a) a rights issue or other issue the subject of an offer or invitation, open for acceptance for a period fixed by the Directors, to (i) Ordinary Shareholders where the relevant securities respectively attributable to the interests of all Ordinary Shareholders are proportionate (or as nearly as may be) to the respective number of Ordinary Shares held by them and (ii) holders of securities, bonds, debentures or warrants which, in accordance with the rights attaching thereto, are entitled to participate in such a rights issue or other issue, but subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or securities represented by depositary receipts or having regard to any restrictions or obligations under the laws of or the requirements of any regulatory body or stock exchange in any territory or otherwise howsoever; or
(b) the terms of any share scheme for employees of the Company or any of its subsidiary undertakings; or
(c) any scrip dividend scheme or similar arrangements implemented in accordance with the Articles of Association of the Company; or
(d) the allotment of up to 500,000,000 non-cumulative Sterling Preference Shares of (pound)1 each in the capital of the Company,
the nominal amount of relevant securities to be allotted by the Directors
pursuant to this authority shall not in aggregate exceed HK$895,314,300 and
(pound)32,666,700 (equal to approximately 5 per cent of the nominal amount
of each class of Ordinary Shares of the Company in issue at the date of the
Notice of this Meeting) and such authority shall expire at the conclusion
of the Annual General Meeting of the Company to be held in 1998 save that
this authority shall allow the Company before the expiry of this authority
to make offers or agreements which would or might require relevant
securities to be allotted after such expiry and the Directors may allot
relevant securities in pursuance of such offers or agreements as if the
authority conferred hereby had not expired.
SPECIAL RESOLUTION
7 THAT, subject to the passing of Resolution No. 6 set out in the Notice convening this Meeting, the Directors be and they are hereby empowered, pursuant to section 95 of the Companies Act 1985 ("the Act") to allot equity securities (as defined by section 94 of the Act) pursuant to the authority conferred by Resolution No. 6 as if section 89(1) of the Act did not apply to any such allotment, provided that this power shall expire at the conclusion of the Annual General Meeting of the Company to be held in 1998 save that this power shall enable the Company prior to the expiry of this power to make offers or agreements which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such offers or agreements as if the power conferred hereby had not expired.
W Purves Chairman
PUBLIC COMPANY LIMITED BY SHARES
RESOLUTIONS
of
At the Annual General Meeting of HSBC Holdings plc held at the Barbican Hall, Barbican Centre, London EC2 on Friday, 29 May 1998, the following Resolutions were passed:
ORDINARY RESOLUTION
4 THAT the Directors be and they are hereby generally and unconditionally
authorised pursuant to and for the purposes of section 80 of the Companies
Act 1985 to exercise all the powers of the Company to allot relevant
securities (within the meaning of that section) up to an aggregate nominal
amount of HK$1,801,612,500 and (pound)565,605,000 (of which up to
(pound)500,000,000 shall be in the form of non-cumulative Sterling
Preference Shares of (pound)1 each) provided that this authority shall be
limited so that, otherwise than pursuant to:
(a) a rights issue or other issue the subject of an offer or invitation, open for acceptance for a period fixed by the Directors, to (i) Ordinary Shareholders where the relevant securities respectively attributable to the interests of all Ordinary Shareholders are proportionate (or as nearly as may be) to the respective number of Ordinary Shares held by them and (ii) holders of securities, bonds, debentures or warrants which, in accordance with the rights attaching thereto, are entitled to participate in such a rights issue or other issue, but subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or securities represented by depositary receipts or having regard to any restrictions or obligations under the laws of or the requirements of any regulatory body or stock exchange in any territory or otherwise howsoever; or
(b) the terms of any share scheme for employees of the Company or any of its subsidiary undertakings; or
(c) any scrip dividend scheme or similar arrangements implemented in accordance with the Articles of Association of the Company; or
(d) the allotment of up to 500,000,000 non-cumulative Sterling Preference Shares of (pound)1 each in the capital of the Company,
the nominal amount of relevant securities to be allotted by the Directors
pursuant to this authority shall not in aggregate exceed HK$900,806,250 and
(pound)32,802,500 (equal to approximately 5 per cent of the nominal amount
of each class of Ordinary Shares of the Company in issue at the date of the
Notice of this Meeting) and such authority shall expire at the conclusion
of the Annual General Meeting of the Company to be held in 1999 save that
this authority shall allow the Company before the expiry of this authority
to make offers or agreements which would or might require relevant
securities to be allotted after such expiry and the Directors may allot
relevant securities in pursuance of such offers or agreements as if the
authority conferred hereby had not expired.
SPECIAL RESOLUTION
5 THAT, subject to the passing of Resolution No. 4 set out in the Notice convening this Meeting, the Directors be and they are hereby empowered, pursuant to section 95 of the Companies Act 1985 ("the Act") to allot equity securities (as defined by section 94 of the Act) pursuant to the authority conferred by Resolution No. 4 as if section 89(1) of the Act did not apply to any such allotment, provided that this power shall expire at the conclusion of the Annual General Meeting of the Company to be held in 1999 save that this power shall enable the Company prior to the expiry of this power to make offers or agreements which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such offers or agreements as if the power conferred hereby had not expired.
W Purves Chairman
PUBLIC COMPANY LIMITED BY SHARES
RESOLUTIONS
of
At the Annual General Meeting of HSBC Holdings plc held at the Barbican Hall, Barbican Centre, London EC2 on Friday, 28 May 1999, the following Resolutions were passed:
SPECIAL RESOLUTIONS
4 THAT, subject to the passing as Special Resolutions of Resolutions 5 and 6 in the Notice convening this Meeting:
(a) the ordinary share capital of the Company be reduced by cancelling and extinguishing all of the issued and unissued Ordinary Shares of HK$10 each and Ordinary Shares of 75p each ("Existing Ordinary Shares"); and
(b) forthwith and contingently upon such reduction of capital taking effect:
(i) the authorised share capital of the Company be increased by such amount in United States dollars ("the US$ Amount") divided into new Ordinary Shares with a nominal value of US$1.50 each ("US$ Shares") as represents the aggregate amount resulting from the creation of such number of US$ Shares as is equal to the aggregate number of issued Existing Ordinary Shares as is cancelled by such reduction of capital ("the Required Number"), such US$ Shares to have the same rights and privileges attached thereto (save as to the amount paid up on each share) as are attached by the Articles of Association of the Company to the Existing Ordinary Shares;
(ii) the reserve arising in the books of the Company as a result of the cancellation and extinguishing of the issued Ordinary Shares of HK$10 each be converted into United States dollars at the spot rate of exchange for the purchase of United States dollars with Hong Kong dollars ("the HK$/US$ Rate") as quoted by Midland Bank plc in the London Foreign Exchange Market at or about 4.00 pm (London time) on the business day (being a day on which banks are ordinarily open for the transaction of normal banking business in London) before the date ("the Effective Date") on which the Court order confirming the reduction of capital is registered by the Registrar of Companies in England and Wales, and the reserve arising in the books of the Company as a result of the cancellation and extinguishing of the issued Ordinary Shares of 75p each be converted into United States dollars at the spot rate of exchange for the purchase of United States dollars with pounds sterling ("the (pound)/US$ Rate") as quoted by Midland Bank plc in the London Foreign Exchange Market at or about 4.00 pm (London time) on the business day before the Effective Date, in each case such rate to be the rate as conclusively certified by an officer of Midland Bank plc;
(iii)the sum standing in the books of the Company as a result of the conversion referred to in sub-paragraph (ii) above ("the US$ Reserve") be applied in paying up new US$ Shares in full at par in accordance with sub-paragraph (v) below, provided that if there would otherwise be any amount remaining in the US$ Reserve once as many as possible US$ Shares have been paid up in full at par, one of such US$ Shares be paid up at a premium equal to such amount;
(iv) if the US$ Reserve is less than the US$ Amount, on the recommendation of the Directors and notwithstanding anything to the contrary in the Articles of Association, such part of the Company's reserves ("the Additional Reserve") (the reserve or reserves to be used for this purpose to be determined by the Directors and so that any reserves as are denominated in pounds sterling shall first be converted into United States dollars at the (pound)/US$ Rate) be applied in paying up in full at par in accordance with sub-paragraph (v) below such number of additional new US$ Shares as is equal to the number by which the number of new US$ Shares paid up pursuant to sub-paragraph (iii) above is less than the Required Number;
(v) each of the US$ Reserve and (where necessary) the Additional Reserve be separately applied so as to pay up in aggregate the Required Number of new US$ Shares, such shares to be allotted and issued credited as fully paid to those persons who appear on the register of members of the Company on the Effective Date ten minutes before the time at which the Court order confirming the reduction of capital is registered by the Registrar of Companies in England and Wales as the holders of cancelled Existing Ordinary Shares in the proportion of one new US$ Share for each Existing Ordinary Share held by them; and
(vi) in addition to and without prejudice to any other authority conferred upon the Directors to allot relevant securities of the Company, the Directors be and they are hereby generally and unconditionally authorised pursuant to and for the purposes of section 80 of the Companies Act 1985 to exercise all the powers of the Company to allot all the new US$ Shares created by this Resolution (aggregating a maximum nominal amount in United States dollars of relevant securities as is equal to the Required Number multiplied by US$1.50) and this authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2000.
5 THAT subject to the passing as Special Resolutions of Resolutions 4 and 6 in the Notice convening this Meeting and forthwith and contingently upon the reduction of capital referred to in Resolution 4 taking effect and subject to the allotment and issue of the new US$ Shares (as defined in Resolution 4) therein referred to having been effected pursuant to sub-paragraph (b)(v) of Resolution 4, each such US$ Share be subdivided into three Ordinary Shares of US$0.50 each, such Ordinary Shares of US$0.50 each to have the same rights and privileges attached thereto as are set out in the Articles of Association of the Company, as altered pursuant to the provisions of Resolution 6.
6 THAT:
(a) subject to the passing as Special Resolutions of Resolutions 4 and 5 in the Notice convening this Meeting and forthwith and contingently upon the reduction of capital referred to in Resolution 4 taking effect and subject to the allotment and issue of the new US$ Shares and the subdivision referred to in Resolutions 4 and 5 having been effected:
(i) the authorised share capital of the Company be increased to US$5,250,000,000 and (pound)500,301,500 by the creation of such number of new Ordinary Shares of US$0.50 each as is equal to 10,500,000,000 shares less the number of Ordinary Shares of US$0.50 each in issue following the subdivision referred to in Resolution 5 having become effective;
(ii) certificates representing Existing Ordinary Shares shall cease to be valid; and
(iii) the Articles of Association of the Company be and are hereby altered as follows:
(A) by deleting in the meaning of the expression "Ordinary Shares" in Article 2.1 the words "having a nominal amount of HK$10 or 75p";
(B) by inserting after the expression "HK$" in Article 2.1 the following new expression:
"US$ United States dollars";
(C) by deleting Article 4.1 and substituting therefor the following:
"4.1 The authorised share capital of the Company is US$5,250,000,000 divided into 10,500,000,000 Ordinary Shares of US$0.50 each and (pound)500,301,500 divided into 500,000,000 Sterling Preference Shares of (pound)1 each and 301,500 Non-voting Deferred Shares of (pound)1 each";
(D) by adding the following at the end of Article 34.1:
"In the case of an instrument of transfer expressed to be a transfer of Ordinary Shares of HK$10 each or Ordinary Shares of 75p each and bearing a date which is on or before the date on which the Court order confirming the reduction of capital approved by Special Resolution passed at the Annual General Meeting held on 28 May 1999 (or at any adjourned meeting) is registered by the Registrar of Companies in England and Wales, such transfer shall until 30 September 1999 be deemed to be, and treated as, a transfer of a number of Ordinary Shares of US$0.50 each equal to three times the number of Ordinary Shares of HK$10 each or Ordinary Shares of 75p each specified in such transfer.";
(E) by deleting Article 55.5 and substituting therefor the following:
"55.5 For the purposes of section 376(2)(b) of the Act any amount paid up on any Ordinary Share in any currency other than sterling shall be treated as if it had been converted into sterling at such rate of exchange prevailing at or about the date of the requisition as the Board shall determine."; and
(F) with effect from 30 September 1999, by deleting the expression "HK$" in Article 2.1 and the meaning thereof and by deleting the additions made by sub-paragraph (D) above; and
(b) definitions used in Resolution 4 have the same meaning in this Resolution.
7 THAT the Articles of Association of the Company be and are hereby altered as follows:
(a) by inserting, at the end of the meaning of the expression "Act" in Article 2.1 the words "(including, without limitation, the Regulations)";
(b) by deleting the meaning of the expression "The Stock Exchange" in Article 2.1 and substituting therefor "London Stock Exchange Limited or other principal stock exchange in the United Kingdom for the time being";
(c) by inserting after the expression "Register" in Article 2.1 the following new expression:
"Regulations The Uncertificated Securities Regulations 1995 (SI 1995 No. 3272) including any modifications thereof and rules made thereunder or any regulations in substitution therefor made under section 207 of the Companies Act 1989 for the time being in force";
(d) by deleting in Article 12.1 the words "under the Seal";
(e) by deleting Article 12.2;
(f) by adding in Article 13.3:
(i) the words ", including those" after the word "expenses" in line 4;
(ii) a comma after the word "security" in line 5;
(iii) the words ", damaged" after the word "defaced" in line 6; and
(iv) the words "but without further charge" at the end;
(g) by adding the following proviso at the end of Article 35.1 after the word "so":
"provided that the Board shall not refuse to register any transfer of partly paid shares which are listed on The Stock Exchange on the grounds that they are partly paid shares in circumstances where such refusal would prevent dealing in such shares from taking place on an open and proper basis. References herein to a transfer shall be deemed to include renunciation of a renounceable letter of allotment";
(h) by adding the following new Article 35.2:
"35.2 A transfer of shares will not be registered in the circumstances envisaged by Article 81.";
(i) by adding the following words at the end of Article 48.1 after the word "shares":
"or the trust deed or other instrument constituting, or the terms of issue of, the convertible shares provide for the Company purchasing its own equity shares";
(j) by deleting in Article 57.1(b) the words "accounts and balance sheet" and "balance sheet" and substituting therefor in each case the words "annual accounts";
(k) by the deletion in Article 57.1(c) of the words "and the fixing of their fees pursuant to Article 104";
(l) by adding the following new Article 65.2:
"65.2 The Board may direct that any person wishing to attend any meeting should submit to such searches or other security arrangements or restrictions as the Board shall consider appropriate in the circumstances and shall be entitled in its absolute discretion to refuse entry to any meeting to any person who fails to submit to such searches or to otherwise comply with such security arrangements or restrictions.";
(m) by adding in Article 81.1 the words ", which expression includes shares issued after the date of such notice in right of those shares" after the words ""the default shares"";
(n) by renumbering Article 81.1(b) and (c) as Article 81.1(b)(i) and (ii) respectively,
and by adding the following new Article 81.1(b):
"(b) where the default shares represent at least 0.25 per cent. in nominal value of the issued shares of their class:";
(o) by adding in Article 81.2 (a) after the word "transfer" the words "but only in respect of the shares transferred";
(p) by deleting in Article 81.4(d) the number "42" and substituting therefor "14";
(q) by deleting in Article 81.4(e)(i) the words "section 14 of the Company Securities (Insider Dealing) Act 1985" and substituting therefor the words "section 428 of the Act";
(r) by deleting in Article 81.4(e)(ii) the words "person or any" and substituting therefor the words "investment exchange (as defined in section 207 of the Financial Services Act 1986) or any other";
(s) by deleting in Article 82.1(b) the words "two national daily newspapers" and substituting therefor the words "one national newspaper" and adding after the words "United Kingdom" the words "and one newspaper circulating in the area of the address on the Register or other last known address of the member or the person entitled by transmission to the share or the address for the service of notices notified under Article 160.3 (unless any such address shall be in Hong Kong),";
(t) by deleting in Article 88.1(b) the reference to "35" and substituting therefor "42";
(u) by making the following changes to Article 132.1:
(i) adding after the word "he" in line 4 the words "has an interest which (together with any interest of any person connected with him within the meaning of section 346 of the Act)";
(ii) deleting the words "materially interested" in line 5 and substituting therefor the words "a material interest otherwise than by virtue of his interest in shares or debentures or other securities of or otherwise in or through the Company";
(iii) deleting the words "subsidiaries" in
paragraphs (a) and (b) and substituting therefor the words "subsidiary |
undertakings";
(iv) by deleting paragraphs (c) to (g) inclusive and substituting therefor the following paragraphs:
"(c) any proposal concerning an offer of shares or debentures or other securities of or by the Company or any of its subsidiary undertakings in which offer he is or may be entitled to participate as a holder of securities or in the underwriting or sub-underwriting of which he is to participate;
(d) any proposal concerning any other body corporate in which he (together with persons connected with him within the meaning of section 346 of the Act) does not to his knowledge have an interest (as the term is used in Part VI of the Act) in one per cent. or more of the issued equity share capital of any class of such body corporate or of the voting rights available to members of such body corporate;
(e) any proposal relating to an arrangement for the benefit of the employees of the Company or any of its subsidiary undertakings which does not award him any privilege or benefit not generally awarded to the employees to whom such arrangement relates; or
(f) any proposal concerning insurance which the Company proposes to maintain or purchase for the benefit of Directors or for the benefit of persons who include Directors.";
(v) by deleting Article 136;
(w) by adding in Article 148.1 after the words "Every cheque, warrant or order is sent at the risk of the person entitled to the money represented by it" the words ", shall be crossed in accordance with the Cheques Act 1992 or in such other manner as the Board may from time to time approve" and deleting in the same sentence the words "the order of";
(x) by adding at the end of Article 151.1(c) after the word "allotted" the following:
"The Board may make such provisions as it thinks fit for the application of any residual dividend entitlement remaining following the calculation of the entitlement of a holder of Ordinary Shares to new Ordinary Shares pursuant to Article 151.1(b) including provisions whereby, in whole or in part, the benefit thereof accrues to the Company and/or under which such entitlements are accrued and/or retained and in each case accumulated on behalf of any member and such accruals or retentions are applied to the allotment by way of bonus to or cash subscription on behalf of such member of fully paid Ordinary Shares and/or provisions whereby cash payments may be made to members in respect of such entitlements";
(y) by deleting the existing Article 154.1 and substituting the following new Article 154.1:
"154.1 Notwithstanding any other provision of these Articles but without prejudice to the rights attached to any shares and subject always to the Act, the Company or the Board may by Resolution specify any date (the "record date") as the date at the close of business (or such other time as the Board may determine) on which persons registered as the holders of shares or other securities shall be entitled to receipt of any dividend, distribution, interest, allotment, issue, notice, information, document or circular and such record date may be on or at any time before the date on which the same is paid or made or (in the case of any dividend, distribution, interest, allotment or issue) at any time before or after the same is recommended, resolved, declared or announced but without prejudice to the rights inter se in respect of the same of transferors and transferees of any such shares or other securities. Different dates may be fixed as record dates in respect of shares registered on different Registers";
(z) by deleting in Article 162.2 the word "sufficient" and substituting therefor the word "conclusive";
(aa) by deleting in Article 168.1 the word "Auditor"; and
(bb) by adding the following new Article 170:
"170 Uncertificated shares
170.1 Notwithstanding anything in these Articles to the contrary, any shares in the Company may be issued, held, registered, converted to, transferred or otherwise dealt with in uncertificated form and converted from uncertificated form to certificated form in accordance with the Regulations and practices instituted by the operator of the relevant system. Any provisions of these Articles shall not apply to any uncertificated shares to the extent that such provisions are inconsistent with:
(a) the holding of shares in uncertificated form;
(b) the transfer of title to shares by means of a relevant system; or
(c) any provision of the Regulations.
170.2 Without prejudice to the generality and effectiveness of the foregoing:
(a) Articles 12, 13 and 34 and the second and third sentence of Article 36 shall not apply to uncertificated shares and the remainder of Article 36 shall apply in relation to such shares as if the reference therein to the date on which the transfer was lodged with the Company were a reference to the date on which the appropriate instruction was received by or on behalf of the Company in accordance with the facilities and requirements of the relevant system;
(b) without prejudice to Article 35 in relation to uncertificated shares, the Board may also refuse to register a transfer of uncertificated shares in such other circumstances as may be permitted or required by the Regulations and the relevant system;
(c) references in these Articles to a requirement on any person to execute or deliver an instrument of transfer or certificate or other document which shall not be appropriate in the case of uncertificated shares shall, in the case of uncertificated shares, be treated as references to a requirement to comply with any relevant requirements of the relevant system and any relevant arrangements or regulations which the Board may make from time to time pursuant to Article 170.2(k) below;
(d) for the purposes referred to in Article 42, a person entitled by transmission to a share in uncertificated form who elects to have some other person registered shall either:
(i) procure that instructions are given by means of the relevant system to effect transfer of such uncertificated share to that person; or
(ii) change the uncertificated share to certificated form and execute an instrument of transfer of that certificated share to that person;
(e) the Company shall enter on the Principal Register the number of shares which are held by each member in uncertificated form and in certificated form and shall maintain the Principal Register in each case as is required by the Regulations and the relevant system and, unless the Board otherwise determines, holdings of the same holder or joint holders in certificated form and uncertificated form may be treated by the Company as separate holdings for such purpose or purposes as the Board may in its absolute discretion determine;
(f) a class of share shall not be treated as two classes by virtue only of that class comprising both certificated shares and uncertificated shares or as a result of any provision of these Articles or the Regulations which applies only in respect of certificated shares or uncertificated shares;
(g) references in Article 44 to instruments of transfer shall include, in relation to uncertificated shares, instructions and/or notifications made in accordance with the relevant system relating to the transfer of such shares;
(h) for the purposes referred to in Article 46, the Board may in respect of uncertificated shares authorise some person to transfer and/or require the holder to transfer the relevant shares in accordance with the facilities and requirements of the relevant system;
(i) for the purposes of Article 148.1, any payment in the case of uncertificated shares may be made by means of the relevant system (subject always to the facilities and requirements of the relevant system) and without prejudice to the generality of the foregoing such payment may be made by the sending by the Company or any person on its behalf of an instruction to the operator of the relevant system to credit the cash memorandum account of the holder or joint holders of such shares or, if permitted by the Company, of such person as the holder or joint holders may in writing direct and for the purposes of Article 148.1 the making of a payment in accordance with the facilities and requirements of the relevant system concerned shall be a good discharge to the Company;
(j) subject to the Act, the Board may issue shares as certificated shares or as uncertificated shares in its absolute discretion and Articles 6, 151 and 153 shall be construed accordingly;
(k) the Board may make such arrangements or regulations (if any) as it may from time to time in its absolute discretion think fit in relation to the evidencing and transfer of uncertificated shares and otherwise for the purpose of implementing and/or supplementing the provisions of this Article 170 and the Regulations and the facilities and requirements of the relevant system and such arrangements and regulations (as the case may be) shall have the same effect as if set out in this Article 170;
(l) the Board may utilise the relevant system to the fullest extent available from time to time in the exercise of the Company's powers or functions under the Act or these Articles or otherwise in effecting any actions; and
(m) the Board may resolve that a class of shares is to become a participating security and may at any time determine that a class of shares shall cease to be a participating security.
170.3 Where any class of shares in the capital of the Company is a participating security and the Company is entitled under any provisions of the Act or the rules made and practices instituted by the operator of any relevant system or under these Articles to dispose of, forfeit, enforce a lien or sell or otherwise procure the sale of any shares which are held in uncertificated form, such entitlement (to the extent permitted by the Regulations and the rules made and practices instituted by the operator of the relevant system) shall include the right to:
(a) request or require the deletion of any computer-based entries in the relevant system relating to the holding of such shares in uncertificated form; and/or
(b) require any holder of any uncertificated shares which are the subject of any exercise by the Company of any such entitlement, by notice in writing to the holder concerned, to change his holding of such uncertificated shares into certificated form within such period as may be specified in the notice, prior to completion of any disposal, sale or transfer of such shares or direct the holder to take such steps, by instructions given by means of a relevant system or otherwise, as may be necessary to sell or transfer such shares; and/or
(c) appoint any person to take such other steps, by instruction given by means of a relevant system or otherwise, in the name of the holder of such shares as may be required to effect transfer of such shares and such steps shall be as effective as if they had been taken by the registered holder of the uncertificated shares concerned; and/or
(d) transfer any uncertificated shares which are the subject of any exercise by the Company of any such entitlement by entering the name of the transferee in the Principal Register in respect of that share as a transferred share; and/or
(e) otherwise rectify or change the Principal Register in respect of that share in such manner as may be appropriate; and
(f) take such other action as may be necessary to enable those shares to be registered in the name of the person to whom the shares have been sold or disposed of or as directed by him.
170.4 For the purposes of this Article 170:
(a) words and expressions shall have the same respective meanings as in the Regulations;
(b) references herein to an uncertificated share or to a share (or to a holding of shares) being in uncertificated form are references to that share being an uncertificated unit of a security, and references to a certificated share or to a share being in certificated form are references to that share being a unit of a security which is not an uncertificated unit; and
(c) "cash memorandum account" means an account so designated by the operator of the relevant system."
ORDINARY RESOLUTION
8 THAT, in addition to and without prejudice to the other authorities conferred by the Resolutions in the Notice convening this Meeting:
(a) the Directors be and they are hereby generally and unconditionally authorised pursuant to and for the purposes of section 80 of the Companies Act 1985 to exercise all the powers of the Company to allot relevant securities (within the meaning of that section) up to an aggregate nominal amount of HK$1,838,916,100 and (pound)767,014,378 (of which (pound)500,000,000 is in the form of non-cumulative preference shares of (pound)1 each); and
(b) subject to and with effect from the reduction of capital,
consolidation, subdivision and associated matters referred to in
Resolutions 4 and 5 in the Notice convening this Meeting ("the Capital
Reorganisation") becoming effective, in substitution for the authority
granted by sub-paragraph (a) of this Resolution but without prejudice
to any prior exercise of such authority, the Directors be and they are
hereby generally and unconditionally authorised pursuant to and for the
purposes of section 80 of the Companies Act 1985 to exercise all the
powers of the Company to allot relevant securities (within the meaning
of that section) up to an aggregate nominal amount of US$809,866,171
and (pound)500,000,000 (in the form of non-cumulative preference shares
of (pound)1 each) provided that, if the authority granted by
sub-paragraph (a) of this Resolution shall have been exercised before
the Capital Reorganisation becomes effective, the said nominal amount
of US$809,866,171 shall be reduced by US$1.50 for every HK$10 or 75p in
nominal amount (as the case may be) in respect of which such authority
has been so exercised in respect of the allotment of Ordinary Shares of
HK$10 each or Ordinary Shares of 75p each (as the case may be)
("Existing Ordinary Shares") and the said nominal amount of
(pound)500,000,000 shall be reduced by (pound)1 for every (pound)1 in
nominal amount in respect of which such authority has been so exercised
in respect of the allotment of non-cumulative preference shares of
(pound)1 each;
provided that these authorities shall be limited so that, otherwise than pursuant to:
(i) a rights issue or other issue the subject of an offer or invitation, open for acceptance for a period fixed by the Directors, to:
(A) Ordinary Shareholders where the relevant securities respectively attributable to the interests of all Ordinary Shareholders are proportionate (or as nearly as may be) to the respective number of Ordinary Shares held by them; and
(B) holders of securities, bonds, debentures or warrants which, in accordance with the rights attaching thereto, are entitled to participate in such a rights issue or other issue,
but subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or securities represented by depositary receipts or having regard to any restrictions, obligations or legal problems under the laws of or the requirements of any regulatory body or stock exchange in any territory or otherwise howsoever; or
(ii) the terms of any share scheme for employees of the Company or any of its subsidiary undertakings; or
(iii) any scrip dividend scheme or similar arrangements implemented in accordance with the Articles of Association of the Company; or
(iv) the allotment of up to 500,000,000 non-cumulative preference shares of(pound)1 each in the capital of the Company,
the nominal amount of relevant securities to be allotted by the Directors
pursuant to the authority granted by sub-paragraph (a) of this Resolution
wholly for cash shall not in aggregate exceed HK$908,054,190 and
(pound)33,129,206 (being equal to approximately 5 per cent. of the nominal
amount of each class of Ordinary Shares of the Company in issue at the date
of the Notice of this Meeting) and, with effect from the Capital
Reorganisation becoming effective, the nominal amount of relevant
securities to be allotted by the Directors pursuant to the authority
granted by sub-paragraph (b) of this Resolution wholly for cash shall not
in aggregate exceed US$202,466,541 (being equal to approximately 5 per
cent. of the nominal amount of the Ordinary Shares of the Company expected
to be in issue following the Capital Reorganisation having become effective
based on the number of Ordinary Shares in issue at the date of the Notice
of this Meeting) provided that the said nominal amount of US$202,466,541
shall be reduced by US$1.50 for every HK$10 or 75p in nominal amount (as
the case may be) of Existing Ordinary Shares in respect of which an
allotment wholly for cash shall be made by the Directors pursuant to the
authority granted by sub-paragraph (a) of this Resolution prior to the
Capital Reorganisation becoming effective, and such authorities shall
expire (in so far as they have not previously expired) at the conclusion of
the Annual General Meeting of the Company to be held in 2000 save that
these authorities shall allow the Company before the expiry of these
authorities to make offers or agreements which would or might require
relevant securities to be allotted after such expiry and the Directors may
allot relevant securities in pursuance of such offers or agreements as if
the authorities conferred hereby had not expired.
SPECIAL RESOLUTION
9 THAT subject to the passing as an Ordinary Resolution of Resolution 8 in the Notice convening this Meeting, the Directors be and they are hereby empowered, pursuant to section 95 of the Companies Act 1985 ("the Act") to allot equity securities (as defined by section 94 of the Act) pursuant to the authorities conferred by Resolution 8 as if section 89(1) of the Act did not apply to any such allotment, provided that this power shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2000 save that this power shall enable the Company before the expiry of this power to make offers or agreements which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such offers or agreements as if the power conferred hereby had not expired.
ORDINARY RESOLUTION
10 THAT the Company be and is generally and unconditionally authorised to make market purchases (within the meaning of section 163 of the Companies Act 1985) of Ordinary Shares of 75p each and Ordinary Shares of HK$10 each in the capital of the Company ("Sterling Ordinary Shares" and "HK dollar Ordinary Shares" respectively and together "Ordinary Shares") and the Directors are authorised to exercise such authority provided that:
(a) the maximum number of Ordinary Shares hereby authorised to be purchased is 88,344,551 Sterling Ordinary Shares and 181,610,839 HK dollar Ordinary Shares;
(b) the minimum price (exclusive of expenses) which may be paid for each Ordinary Share is 75p or HK$10 (as the case may be) (or, where relevant, the equivalent in the relevant currency in which the purchase is effected calculated by reference to the spot rate of exchange for the purchase of pounds sterling or Hong Kong dollars (as the case may be) with such other currency as quoted by Midland Bank plc in the London Foreign Exchange Market at or about 11.00 am (London time) on the business day (being a day on which banks are ordinarily open for the transaction of normal banking business in London) prior to the date on which the Ordinary Share is contracted to be purchased, in each case such rate to be the rate as conclusively certified by an officer of Midland Bank plc);
(c) the maximum price (exclusive of expenses) which may be paid for each Ordinary Share is the lower of (i) 105 per cent. of the average of the middle market quotations for the relevant class of Ordinary Shares (as derived from the Daily Official List of the London Stock Exchange Limited) for the five dealing days immediately preceding the day on which the Ordinary Share is contracted to be purchased or (ii) 105 per cent. of the average of the closing prices for the relevant class of Ordinary Shares on The Stock Exchange of Hong Kong Limited for the five dealing days immediately preceding the day on which the Ordinary Share is contracted to be purchased, in each case converted (where relevant) into the relevant currency in which the purchase is effected calculated by reference to the spot rate of exchange for the purchase of such currency with the currency in which the quotation and/or price is given as quoted by Midland Bank plc in the London Foreign Exchange Market at or about 11.00 am (London time) on the business day prior to the date on which the Ordinary Share is contracted to be purchased, in each case such rate to be the rate as conclusively certified by an officer of Midland Bank plc;
(d) unless previously revoked or varied this authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2000; and
(e) the Company may prior to the expiry of this authority make a contract to purchase Ordinary Shares under this authority which will or may be executed wholly or partly after such expiry and may make a purchase of Ordinary Shares pursuant to any such contract,
provided that, in the event that the Capital Reorganisation (as defined in Resolution 8 in the Notice convening this Meeting) becomes effective, without prejudice to any prior exercise of the authority granted by this Resolution, the references (i) in this Resolution to "Ordinary Shares of 75p each and Ordinary Shares of HK$10 each in the capital of the Company ("Sterling Ordinary Shares" and "HK dollar Ordinary Shares" respectively and together "Ordinary Shares")"; (ii) in paragraph (a) of this Resolution to "88,344,551 Sterling Ordinary Shares and 181,610,839 HK dollar Ordinary Shares"; (iii) in paragraph (b) of this Resolution to "75p or HK$10 (as the case may be)"; and (iv) in paragraph (b) of this Resolution to "pounds sterling or Hong Kong dollars (as the case may be)" shall be deemed instead to be to (i) "Ordinary Shares of US$0.50 each in the capital of the Company ("Ordinary Shares")"; (ii) "809,866,170 Ordinary Shares" (or if this authority to make market purchases of Sterling Ordinary Shares or HK dollar Ordinary Shares is exercised prior to the Capital Reorganisation, 809,866,170 Ordinary Shares less the number of Sterling Ordinary Shares and/or HK dollar Ordinary Shares the subject of the exercise of such authority multiplied by three); (iii) "US$0.50"; and (iv) "United States dollars", and the words "relevant class of" shall be deemed to be deleted in paragraph (c) of this Resolution before the words "Ordinary Shares" in each case where such words appear.
J R H Bond Chairman
[logo]
CERTIFICATE OF REGISTRATION
OF ORDER OF COURT AND MINUTE
ON
REDUCTION OF CAPITAL
No. 617987
Whereas HSBC HOLDINGS PLC
having by Special Resolution reduced its capital as confirmed by an Order of the High Court of Justice, Chancery Division
dated the 30th June 1999
Now therefore I hereby certify that the said Order and a Minute approved by the Court were registered pursuant to section 138 of the Companies Act, 1985, on the 2nd July 1999
Given under my hand at Companies House, Cardiff the 2nd July 1999
J.J. Lewis
An Authorised Officer
THE COMPANIES ACTS 1985 AND 1989
PUBLIC COMPANY LIMITED BY SHARES
RESOLUTIONS
of
HSBC Holdings plc
At the Annual General Meeting of HSBC Holdings plc held at the Barbican Hall, Barbican Centre, London EC2 on Friday, 26 May 2000, the following Resolutions were passed:
SPECIAL RESOLUTION
4 THAT
(a) the authorised share capital of the Company be diminished by the cancellation of the 500,000,000 authorised but unissued Sterling Preference Shares of (pound)1 each;
(b) the authorised share capital of the Company be increased by the creation of:
(i) 10,000,000 non-cumulative preference shares of (pound)0.01 each;
(ii) 10,000,000 non-cumulative preference shares of US$0.01 each; and
(iii) 10,000,000 non-cumulative preference shares of (euro)0.01 each,
in each case having attached thereto the respective rights and being subject to the respective limitations set out in the Articles of Association of the Company as altered by this Resolution;
(c) the Articles of Association of the Company be and are hereby altered as follows:
(i) in Article 2.1:
(A) by the insertion, after the expression "dividend", of the following:
"Dollar Preference a non-cumulative preference share Share of US$0.01 Euro Preference a non-cumulative preference share Share of (euro)0.01"; |
(B) in the expression "Sterling Preference Share", by the deletion of "(pound)1" and the substitution therefor of "(pound)0.01";
(C) by the insertion, after "(pound)" in the expression "(pound) and p or pence", of "(or sterling)";
(D) by the insertion, after "US$" in that expression, of "or US dollars";
(E) by the insertion at the end, of the following:
"(euro)or euro the single currency adopted by
those states participating in
European Monetary Union from time
to time";
|
(ii) by the deletion of Article 4.1 and the substitution therefor of the following:
"4.1 The authorised share capital of the Company is
US$5,250,100,000 divided into 10,500,000,000 Ordinary Shares
of US$0.50 each and 10,000,000 Dollar Preference Shares of
US$0.01 each, (pound)401,500 divided into 10,000,000
Sterling Preference Shares of (pound)0.01 each and 301,500
Non-voting Deferred Shares of (pound)1 each, and
(euro)100,000 divided into 10,000,000 Euro Preference Shares
of (euro)0.01 each";
(iii) by the deletion of Article 5.1 and the substitution therefor of the following:
"5. Rights of the Sterling Preference Shares
5.1 The following rights and restrictions shall be attached to the Sterling Preference Shares:
(1) The Sterling Preference Shares shall rank pari passu inter se and with the Dollar Preference Shares and the Euro Preference Shares and with all other shares expressed to rank pari passu therewith. They shall confer the rights and be subject to the limitations set out in this Article. They shall also confer such further rights (not being inconsistent with the rights set out in this Article) and be subject to such further limitations and restrictions as may be attached by the Board to such shares prior to allotment. Whenever the Board has power under this Article to determine any of the rights attached to any of the Sterling Preference Shares, the rights so determined need not be the same as those attached to the Sterling Preference Shares which have then been allotted or issued. The Sterling Preference Shares may be issued in one or more separate series and each series shall be identified in such manner as the Board may determine without any such determination or identification requiring any alteration to these Articles.
(2) Each Sterling Preference Share shall confer the following rights as to dividend and capital:
Income
(a) the right (subject to the provisions of paragraph (4) of this Article, if applicable) in priority to the payment of any dividend to the holders of Ordinary Shares and any other class of shares of the Company in issue (other than (i) the Dollar Preference Shares, the Euro Preference Shares and any other shares expressed to rank pari passu therewith as regards income and (ii) any shares which by their terms rank in priority to the Sterling Preference Shares as regards income) to a non-cumulative preferential dividend in sterling payable at such rate (whether fixed, variable or floating or to be determined by a specified procedure, mechanism or formula) on such dates (each a "Dividend Payment Date") and on such other terms and conditions as may be determined by the Board prior to allotment thereof;
Capital
(b) the right in a winding up of the Company (but not,
unless otherwise provided by the terms of issue of such
share, upon a redemption, reduction or purchase by the
Company of any of its share capital) to receive in
sterling out of the assets of the Company available for
distribution to its members in priority to any payment
to the holders of the Ordinary Shares and any other
class of shares of the Company in issue (other than (i)
the Dollar Preference Shares, the Euro Preference
Shares and any other shares expressed to rank pari
passu therewith as regards repayment of capital and
(ii) any shares which by their terms rank in priority
to the Sterling Preference Shares as regards repayment
of capital):
(i) a sum equal to:
(A) the amount of any dividend which is due for payment after the date of commencement of the winding up but which is payable in respect of a period ending on or before such date; and
(B) if the date of commencement of the winding up falls before the last day of a period in respect of which a dividend would have been payable and which began before such date, any further amount of dividend which would have been payable had the day before such date been the last day of that period,
but only to the extent that any such amount or further amount was, or would have been, payable as a dividend in accordance with or pursuant to this Article; and
(ii) subject thereto, a sum equal to the amount paid up or credited as paid up on such share together with such premium (if any) as may be determined by the Board (or by a procedure, mechanism or formula determined by the Board) prior to allotment thereof (and so that the Board may determine that such premium is payable only in specified circumstances).
Limitations
(3) No Sterling Preference Share shall:
(a) confer any right to participate in the profits or assets of the Company other than that set out in sub-paragraphs (2)(a) and (b) of this Article;
(b) subject to the Act, confer any right to participate in any offer or invitation by way of rights or otherwise to subscribe for additional shares or securities in the Company;
(c) confer any right of conversion; or
(d) confer any right to participate in any issue of bonus shares or shares issued by way of capitalisation of reserves.
Further provisions as to income
(4) All or any of the following provisions shall apply in relation to any Sterling Preference Shares of any series ("relevant Sterling Preference Shares") if so determined by the Board prior to allotment thereof:
(a) (i) if, on any Dividend Payment Date ("the relevant date") on which a dividend ("the relevant dividend") would otherwise fall to be paid on any relevant Sterling Preference Shares, the profits of the Company available for distribution are, in the opinion of the Board, insufficient to enable payment in full to be made of the relevant dividend, then the Board shall (after payment in full, or the setting aside of a sum required for payment in full, of all dividends payable on or before the relevant date on any shares in the capital of the Company in priority to the relevant Sterling Preference Shares) apply such profits, if any, in paying dividends to the holders of participating shares (as defined below) pro rata to the amounts of dividend on participating shares accrued and payable on or before the relevant date. For the purposes of this paragraph, the expression "participating shares" shall mean the relevant Sterling Preference Shares and any other shares in the capital of the Company which rank pari passu as to participation in profits with the relevant Sterling Preference Shares and on which either (1) a dividend is payable on the relevant date or (2) arrears of cumulative dividend are unpaid at the relevant date;
(ii) if it shall subsequently appear that any such dividend which has been paid in whole or in part should not, in accordance with the provisions of this sub-paragraph, have been so paid, then provided the Board shall have acted in good faith, they shall not incur any liability for any loss which any shareholder may suffer in consequence of such payment having been made;
(b) if the payment of any dividend on any relevant Sterling Preference Shares would breach or cause a breach of the capital adequacy requirements of the Financial Services Authority (or any successor organisation responsible for the supervision of banks in the United Kingdom) from time to time applicable to the Company and/or any of its subsidiaries, then none of such dividend shall be payable;
(c) if a dividend or any part thereof on any relevant Sterling Preference Shares is not paid for the reasons specified in sub-paragraphs (a) or (b) above, the holders of such shares shall have no claim in respect of such non-payment;
(d) if any dividend on any relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, the Company may not thereafter purchase or redeem any other share capital of the Company ranking pari passu with or after the relevant Sterling Preference Shares (and may not contribute any moneys to a sinking fund for any such purchase or redemption) until such time as dividends on the relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or an amount equivalent thereto shall have been paid or set aside to provide for such payment in full);
(e) if any dividend on any relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, no dividend or other distribution may thereafter be declared or paid on any other share capital of the Company ranking as to dividend after the relevant Sterling Preference Shares until such time as dividends on the relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or a sum shall have been paid or set aside to provide for such payment in full).
Redemption
(5) (a) Unless otherwise determined by the Board in
relation to Sterling Preference Shares of any
series prior to allotment thereof, the Sterling
Preference Shares shall, subject to the provisions
of the Act, be redeemable at the option of the
Company.
(b) In the case of any series of Sterling Preference
Shares which are to be so redeemable:
(i) the Company may, subject to the provisions of
the Act and sub-paragraph (ii) below, redeem
on any Redemption Date (as hereinafter
defined) all, but not merely some, of the
Sterling Preference Shares of such series by
giving to the holders of the Sterling
Preference Shares to be redeemed not less
than 30 days' nor more than 60 days' prior
notice in writing (a "Notice of Redemption")
of the relevant Redemption Date. "Redemption
Date" means, in relation to Sterling
Preference Shares of a particular series, any
date mentioned in any one of (A), (B) or (C)
below, as determined by the Board prior to
the first allotment of Sterling Preference
Shares of that series:
(A) any date which falls on or after the
First Redemption Date (as hereinafter
defined); or
(B) the First Redemption Date or any
subsequent Dividend Payment Date for
Sterling Preference Shares of that
series; or
(C) the First Redemption Date or any
successive fifth anniversary thereof.
"First Redemption Date" means:
(D) in relation to any Sterling Preference
Shares designated as "Series 1", 30 June
2015;
(E) in relation to any other Sterling
Preference Shares of a particular
series, one day after such one of the
following dates as shall be determined
by the Board prior to the first
allotment of Sterling Preference Shares
of that series:
(1) five years after the Relevant Date
(as hereinafter defined);
(2) ten years after the Relevant Date;
(3) fifteen years after the Relevant
Date;
(4) twenty years after the Relevant
Date;
(5) thirty years after the Relevant
Date.
"Relevant Date" means, in relation to
Sterling Preference Shares of a particular
series, such one of the following dates as
shall be determined by the Board prior to
the first allotment of Sterling Preference
Shares of that series:
(F) the first date of allotment of
Sterling Preference Shares of that
series; or
(G) the first Dividend Payment Date for
Sterling Preference Shares of that
series;
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(ii) if either of the restrictions in sub-paragraphs (4)(a)(i) and (4)(a)(ii) of this Article applies to any dividend otherwise payable on any Redemption Date on the Sterling Preference Shares of that series, the Company may not redeem such Sterling Preference Shares on that Redemption Date;
(iii) there shall be paid on each Sterling Preference Share so redeemed, in sterling, the aggregate of the nominal amount thereof and any premium credited as paid up on such share together with any dividend payable on the Redemption Date;
(iv) any Notice of Redemption given under sub-paragraph (b)(i) above shall specify the applicable Redemption Date, the particular Sterling Preference Shares to be redeemed and the redemption price, and shall state the place or places at which documents of title or such other evidence as may be accepted by the Board in respect of such Sterling Preference Shares are to be presented and surrendered for redemption and payment of the redemption moneys is to be effected. Upon such Redemption Date, the Company shall redeem the particular Sterling Preference Shares to be redeemed on that date subject to the provisions of this paragraph and of the Act. No defect in the Notice of Redemption or in the giving thereof shall affect the validity of the redemption proceedings;
(v) payments in respect of the amount due on redemption of a Sterling Preference Share shall be made by sterling cheque drawn on a bank in London or upon the request of the holder or joint holders not later than the date specified for the purpose in the Notice of Redemption by transfer to a sterling account maintained by the payee with a bank in London or by such other method as the Board may determine. Such payment will be made against presentation and surrender of the relative certificate at the place or one of the places specified in the Notice of Redemption or against such other evidence as may be accepted by the Board.
All payments in respect of redemption monies will in all respects be subject to any applicable fiscal or other laws;
(vi) as from the relevant Redemption Date the dividend on the Sterling Preference Shares due for redemption shall cease to accrue except on any such Sterling Preference Shares in respect of which, upon due surrender of the certificate or other evidence aforesaid, payment of the redemption moneys due on such Redemption Date shall be improperly withheld or refused, in which case such dividend, at the rate then applicable, shall be deemed to have continued and shall accordingly continue to accrue from the relevant Redemption Date to the date of payment of such redemption moneys. Such Sterling Preference Shares shall not be treated as having been redeemed until the redemption moneys in question together with the accrued dividend thereon shall have been paid;
(vii) if the due date for the payment of the redemption moneys on any Sterling Preference Share is not a day (other than a Saturday or Sunday) on which commercial banks and foreign exchange markets settle payments in sterling and are open for general business in London (a "Sterling Business Day"), then payment of such moneys will be made on the next succeeding day which is a Sterling Business Day and without any interest or other payment in respect of such delay; and
(viii) the receipt of the holder for the time being of any Sterling Preference Shares (or, in the case of joint registered holders, the receipt of any one of them) for the moneys payable on redemption thereof shall constitute an absolute discharge to the Company in respect thereof.
(c) Upon the redemption or purchase of any Sterling Preference Shares the Board shall have power without any further resolution or consent to convert the authorised but unissued Sterling Preference Shares existing as a result of such redemption or purchase into shares of any other class of share capital into which the authorised share capital of the Company is or may be divided of the same nominal amount in sterling as the Sterling Preference Shares or into unclassified shares of the same nominal amount in sterling as the Sterling Preference Shares.
(d) Any Sterling Preference Shares redeemed pursuant to this paragraph (5) shall be cancelled on redemption.
Purchase
(6) Subject to the provisions of the Act, the Company may at any time purchase any Sterling Preference Shares (i) in the market, (ii) by tender (available alike to all holders of the same class of Sterling Preference Shares) or (iii) by private treaty, in each case upon such terms as the Board shall determine.
Consolidation and division
(7) Pursuant to the authority given by the passing of the resolution adopting this Article the Board may consolidate and divide and/or sub-divide any Sterling Preference Shares into shares of a larger or smaller amount.
Attendance and voting at general meetings
(8) (a) Save as provided by its terms of issue, no
Sterling Preference Share shall carry any right to
attend or vote at general meetings of the Company.
(b) If so determined by the Board prior to allotment
thereof, holders of Sterling Preference Shares of
any series shall have the right to attend and vote
at general meetings of the Company in the
following circumstances:
(i) if any dividend on any Sterling Preference
Shares of that series in respect of such
period as the Board shall determine prior to
allotment thereof is not paid in full, the
right to attend and vote at general meetings
of the Company until such time as dividends
on those Sterling Preference Shares in
respect of such period as the Board shall
determine prior to allotment thereof shall
have been paid in full (or a sum shall have
been paid or set aside to provide for such
payment in full);
(ii) in such other circumstances, and upon and
subject to such terms, as the Board may
determine prior to allotment of such Sterling
Preference Shares.
(c) Whenever holders of Sterling Preference Shares are
entitled to vote on a resolution at a general
meeting, on a show of hands every such holder who
is present in person shall have one vote and on a
poll every such holder who is present in person or
by proxy shall have one vote per Sterling
Preference Share held by him or such number of
votes per share as the Board shall determine prior
to allotment of such share.
(d) Holders of Sterling Preference Shares having a
registered address or address for correspondence
within the United Kingdom shall have the right to
have sent to them (at the same time as the same
are sent to the holders of Ordinary Shares) all
notices of general meetings of the Company and a
copy of every circular or other like document sent
out by the Company to the holders of Ordinary
Shares.
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Further preference shares
(9) The special rights attached to any Sterling Preference Shares of any series allotted or in issue shall not (unless otherwise provided by their terms of issue) be deemed to be varied by the creation or issue of any other preference shares or further shares in any currency ("new shares") ranking as regards participation in the profits and assets of the Company pari passu with such Sterling Preference Shares and so that any new shares ranking pari passu with such Sterling Preference Shares may either carry rights and restrictions identical in all respects with such Sterling Preference Shares or any of them or rights and restrictions differing therefrom in any respect including but without prejudice to the generality of the foregoing in that:
(a) the rate of and/or basis of calculation of dividend may differ and the dividend may be cumulative or non-cumulative;
(b) the new shares or any series thereof may rank for dividend as from such date as may be provided by the terms of issue thereof and the dates of payment of dividend may differ;
(c) a premium may be payable on return of capital or there may be no such premium;
(d) the new shares may be redeemable at the option of the holder or of the Company, or may be non-redeemable, and if redeemable at the option of the Company they may be redeemable at different dates and on different terms from those applying to the Sterling Preference Shares; and
(e) the new shares may be convertible into Ordinary Shares or any other class of shares ranking as regards participation in the profits and assets of the Company pari passu with or after such Sterling Preference Shares in each case on such terms and conditions as may be prescribed by the terms of issue thereof.
Variation of class rights
(10)(a) Subject to the provisions of the Act:
(i) all or any of the rights, preferences,
privileges, limitations or restrictions for
the time being attached to the Sterling
Preference Shares may from time to time
(whether or not the Company is being wound
up) be varied or abrogated with the consent
in writing of the holders of not less than
three-quarters in nominal value of the
Sterling Preference Shares of all series in
issue or with the sanction of an
extraordinary resolution passed at a separate
general meeting of the holders of the
Sterling Preference Shares, voting as a
single class without regard for series; and
(ii) all or any of the rights, preferences,
privileges, limitations or restrictions for
the time being attached to Sterling
Preference Shares of any series may be varied
or abrogated so as to affect adversely such
rights on a basis different from any other
series of Sterling Preference Shares with the
consent in writing of the holders of not less
than three-quarters in nominal value of the
Sterling Preference Shares of such series or
with the sanction of an extraordinary
resolution passed at a separate general
meeting of the holders of Sterling Preference
Shares of such series.
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All the provisions of these Articles as to general meetings of the Company shall mutatis mutandis apply to any such separate general meeting, but so that the necessary quorum shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class, that every holder of shares of the class shall be entitled on a poll to one vote for every share of the class held by him, that any holder of shares of the class present in person or by proxy may demand a poll and that at any adjourned meeting of the holders one holder present in person or by proxy (whatever the number of shares held by him) shall be a quorum.
(b) Unless otherwise provided by its terms of issue, the rights attached to any Sterling Preference Share shall not be deemed to be varied or abrogated by a reduction of any share capital or purchase by the Company or redemption of any share capital in each case ranking as regards participation in the profits and assets of the Company in priority to or pari passu with or after such Sterling Preference Share.
5A Rights of the Dollar Preference Shares
5A.1 The following rights and restrictions shall be attached to the Dollar Preference Shares:
(1) The Dollar Preference Shares shall rank pari passu inter se and with the Sterling Preference Shares and the Euro Preference Shares and with all other shares expressed to rank pari passu therewith. They shall confer the rights and be subject to the limitations set out in this Article. They shall also confer such further rights (not being inconsistent with the rights set out in this Article) and be subject to such further limitations and restrictions as may be attached by the Board to such shares prior to allotment. Whenever the Board has power under this Article to determine any of the rights attached to any of the Dollar Preference Shares, the rights so determined need not be the same as those attached to the Dollar Preference Shares which have then been allotted or issued. The Dollar Preference Shares may be issued in one or more separate series and each series shall be identified in such manner as the Board may determine without any such determination or identification requiring any alteration to these Articles.
(2) Each Dollar Preference Share shall confer the following rights as to dividend and capital:
Income
(a) the right (subject to the provisions of paragraph (4) of this Article, if applicable) in priority to the payment of any dividend to the holders of Ordinary Shares and any other class of shares of the Company in issue (other than (i) the Sterling Preference Shares, the Euro Preference Shares and any other shares expressed to rank pari passu therewith as regards income and (ii) any shares which by their terms rank in priority to the Dollar Preference Shares as regards income) to a non-cumulative preferential dividend in US dollars payable at such rate (whether fixed, variable or floating or to be determined by a specified procedure, mechanism or formula) on such dates (each a "Dividend Payment Date") and on such other terms and conditions as may be determined by the Board prior to allotment thereof;
Capital
(b) the right in a winding up of the Company (but not,
unless otherwise provided by the terms of issue of such
share, upon a redemption, reduction or purchase by the
Company of any of its share capital) to receive in US
dollars out of the assets of the Company available for
distribution to its members in priority to any payment
to the holders of the Ordinary Shares and any other
class of shares of the Company in issue (other than (i)
the Sterling Preference Shares, the Euro Preference
Shares and any other shares expressed to rank pari
passu therewith as regards repayment of capital and
(ii) any shares which by their terms rank in priority
to the Dollar Preference Shares as regards repayment of
capital):
(i) a sum equal to:
(A) the amount of any dividend which is due for payment after the date of commencement of the winding up but which is payable in respect of a period ending on or before such date; and
(B) if the date of commencement of the winding up falls before the last day of a period in respect of which a dividend would have been payable and which began before such date, any further amount of dividend which would have been payable had the day before such date been the last day of that period
but only to the extent that any such amount or further amount was, or would have been, payable as a dividend in accordance with or pursuant to this Article; and
(ii) subject thereto, a sum equal to the amount paid up or credited as paid up on such share together with such premium (if any) as may be determined by the Board (or by a procedure, mechanism or formula determined by the Board) prior to allotment thereof (and so that the Board may determine that such premium is payable only in specified circumstances).
Limitations
(3) No Dollar Preference Share shall;
(a) confer any right to participate in the profits or assets of the Company other than that set out in sub-paragraphs (2)(a) and (b) of this Article;
(b) subject to the Act, confer any right to participate in any offer or invitation by way of rights or otherwise to subscribe for additional shares or securities in the Company;
(c) confer any right of conversion; or
(d) confer any right to participate in any issue of bonus shares or shares issued by way of capitalisation of reserves.
Further provisions as to income
(4) All or any of the following provisions shall apply in relation to any Dollar Preference Shares of any series ("relevant Dollar Preference Shares") if so determined by the Board prior to allotment thereof:
(a) (i) if, on any Dividend Payment Date ("the relevant date") on which a dividend ("the relevant dividend") would otherwise fall to be paid on any relevant Dollar Preference Shares, the profits of the Company available for distribution are, in the opinion of the Board, insufficient to enable payment in full to be made of the relevant dividend, then the Board shall (after payment in full, or the setting aside of a sum required for payment in full, of all dividends payable on or before the relevant date on any shares in the capital of the Company in priority to the relevant Dollar Preference Shares) apply such profits, if any, in paying dividends to the holders of participating shares (as defined below) pro rata to the amounts of dividend on participating shares accrued and payable on or before the relevant date. For the purposes of this paragraph, the expression "participating shares" shall mean the relevant Dollar Preference Shares and any other shares in the capital of the Company which rank pari passu as to participation in profits with the relevant Dollar Preference Shares and on which either (1) a dividend is payable on the relevant date or (2) arrears of cumulative dividend are unpaid at the relevant date;
(ii) if it shall subsequently appear that any such dividend which has been paid in whole or in part should not, in accordance with the provisions of this sub-paragraph, have been so paid, then provided the Board shall have acted in good faith, they shall not incur any liability for any loss which any shareholder may suffer in consequence of such payment having been made;
(b) if the payment of any dividend on any relevant Dollar Preference Shares would breach or cause a breach of the capital adequacy requirements of the Financial Services Authority (or any successor organisation responsible for the supervision of banks in the United Kingdom) from time to time applicable to the Company and/or any of its subsidiaries, then none of such dividend shall be payable;
(c) if a dividend or any part thereof on any relevant Dollar Preference Shares is not paid for the reasons specified in sub-paragraphs (a) or (b) above, the holders of such shares shall have no claim in respect of such non-payment;
(d) if any dividend on any relevant Dollar Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, the Company may not thereafter purchase or redeem any other share capital of the Company ranking pari passu with or after the relevant Dollar Preference Shares (and may not contribute any moneys to a sinking fund for any such purchase or redemption) until such time as dividends on the relevant Dollar Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or an amount equivalent thereto shall have been paid or set aside to provide for such payment in full);
(e) if any dividend on any relevant Dollar Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, no dividend or other distribution may thereafter be declared or paid on any other share capital of the Company ranking as to dividend after the relevant Dollar Preference Shares until such time as dividends on the relevant Dollar Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or a sum shall have been paid or set aside to provide for such payment in full).
Redemption
(5) (a) Unless otherwise determined by the Board in relation to
Dollar Preference Shares of any series prior to
allotment thereof, the Dollar Preference Shares shall,
subject to the provisions of the Act, be redeemable at
the option of the Company.
(b) In the case of any series of Dollar Preference Shares
which are to be so redeemable:
(i) the Company may, subject to the provisions of the
Act, and sub-paragraph (ii) below, redeem on any
Redemption Date (as hereinafter defined) all, but
not merely some, of the Dollar Preference Shares
of such series by giving to the holders of the
Dollar Preference Shares to be redeemed not less
than 30 days' nor more than 60 days' prior notice
in writing (a "Notice of Redemption") of the
relevant Redemption Date. "Redemption Date" means,
in relation to Dollar Preference Shares of a
particular series, any date mentioned in any one
of (A), (B) or (C) below, as determined by the
Board prior to the first allotment of Dollar
Preference Shares of that series:
(A) any date which falls on or after the First
Redemption Date (as hereinafter defined); or
(B) the First Redemption Date or any subsequent
Dividend Payment Date for Dollar Preference
Shares of that series; or
(C) the First Redemption Date or any successive
fifth anniversary thereof.
"First Redemption Date" means:
(D) in relation to any relevant Dollar Preference
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Shares designated as:
(1) "Series 1", 30 June 2010;
(2) "Series 2", 30 June 2030;
(E) in relation to any other Dollar Preference Shares of a particular series, one day after such one of the following dates as shall be determined by the Board prior to the first allotment of Dollar Preference Shares of that series:
(1) five years after the Relevant Date (as hereinafter defined);
(2) ten years after the Relevant Date;
(3) fifteen years after the Relevant Date;
(4) twenty years after the Relevant Date;
(5) thirty years after the Relevant Date.
"Relevant Date" means, in relation to Dollar Preference Shares of a particular series, such one of the following dates as shall be determined by the Board prior to the first allotment of Dollar Preference Shares of that series:
(F) the first date of allotment of Dollar Preference Shares of that series; or
(G) the first Dividend Payment Date for Dollar Preference Shares of that series;
(ii) if either of the restrictions in sub-paragraphs
(4)(a)(i) and (4)(a)(ii) of this Article applies
to any dividend otherwise payable on any
Redemption Date on the Dollar Preference Shares of
that series, the Company may not redeem such
Dollar Preference Shares on that Redemption Date;
(iii) there shall be paid on each Dollar Preference Share so redeemed, in US dollars, the aggregate of the nominal amount thereof and any premium credited as paid up on such share together with any dividend payable on the Redemption Date;
(iv) any Notice of Redemption given under sub-paragraph
(b)(i) above shall specify the applicable
Redemption Date, the particular Dollar Preference
Shares to be redeemed and the redemption price,
and shall state the place or places at which
documents of title or such other evidence as may
be accepted by the Board in respect of such Dollar
Preference Shares are to be presented and
surrendered for redemption and payment of the
redemption moneys is to be effected. Upon such
Redemption Date, the Company shall redeem the
particular Dollar Preference Shares to be redeemed
on that date subject to the provisions of this
paragraph and of the Act. No defect in the Notice
of Redemption or in the giving thereof shall
affect the validity of the redemption proceedings;
(v) payments in respect of the amount due on redemption of a Dollar Preference Share shall be made by US Dollar cheque drawn on a bank in New York City or upon the request of the holder or joint holders not later than the date specified for the purpose in the Notice of Redemption by transfer to a US dollar account maintained by the payee with a bank in New York City or by such other method as the Board may determine. Such payment will be made against presentation and surrender of the relative certificate at the place or one of the places specified in the Notice of Redemption or against such other evidence as may be accepted by the Board.
All payments in respect of redemption moneys will in all respects be subject to any applicable fiscal or other laws;
(vi) as from the relevant Redemption Date the dividend on the Dollar Preference Shares due for redemption shall cease to accrue except on any such Dollar Preference Shares in respect of which, upon due surrender of the certificate or other evidence aforesaid, payment of the redemption moneys due on such Redemption Date shall be improperly withheld or refused, in which case such dividend, at the rate then applicable, shall be deemed to have continued and shall accordingly continue to accrue from the relevant Redemption Date to the date of payment of such redemption moneys. Such Dollar Preference Shares shall not be treated as having been redeemed until the redemption moneys in question together with the accrued dividend thereon shall have been paid;
(vii) if the due date for the payment of the redemption moneys on any Dollar Preference Share is not a day (other than a Saturday or Sunday) on which commercial banks and foreign exchange markets settle payments in US dollars and are open for general business in London and New York City (a "Dollar Business Day"), then payment of such moneys will be made on the next succeeding day which is a Dollar Business Day and without any interest or other payment in respect of such delay; and
(viii) the receipt of the holder for the time being of any Dollar Preference Shares (or, in the case of joint registered holders, the receipt of any one of them) for the moneys payable on redemption thereof shall constitute an absolute discharge to the Company in respect thereof.
(c) Upon the redemption or purchase of any Dollar Preference Shares the Board shall have power without any further resolution or consent to convert the authorised but unissued Dollar Preference Shares existing as a result of such redemption or purchase into shares of any other class of share capital into which the authorised share capital of the Company is or may be divided of the same nominal amount in US dollars as the Dollar Preference Shares or into unclassified shares of the same nominal amount in US dollars as the Dollar Preference Shares.
(d) Any Dollar Preference Shares redeemed pursuant to this paragraph (5) shall be cancelled on redemption.
Purchase
(6) Subject to the provisions of the Act, the Company may at any time purchase any Dollar Preference Shares (i) in the market, (ii) by tender (available alike to all holders of the same class of Dollar Preference Shares) or (iii) by private treaty, in each case upon such terms as the Board shall determine.
Consolidation and division
(7) Pursuant to the authority given by the passing of the resolution adopting this Article the Board may consolidate and divide and/or sub-divide any Dollar Preference Shares into shares of a larger or smaller amount.
Attendance and voting at general meetings
(8) (a) Save as provided by its terms of issue, no Dollar
Preference Share shall carry any right to attend or
vote at general meetings of the Company.
(b) If so determined by the Board prior to allotment
thereof, holders of Dollar Preference Shares of any
series shall have the right to attend and vote at
general meetings of the Company in the following
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circumstances:
(i) if any dividend on any Dollar Preference Shares of that series in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, the right to attend and vote at general meetings of the Company until such time as dividends on those Dollar Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or a sum shall have been paid or set aside to provide for such payment in full);
(ii) in such other circumstances, and upon and subject to such terms, as the Board may determine prior to allotment of such Dollar Preference Shares.
(c) Whenever holders of Dollar Preference Shares are entitled to vote on a resolution at a general meeting, on a show of hands every such holder who is present in person shall have one vote and on a poll every such holder who is present in person or by proxy shall have one vote per Dollar Preference Share held by him or such number of votes per share as the Board shall determine prior to allotment of such share.
(d) Holders of Dollar Preference Shares having a registered address or address for correspondence within the United Kingdom shall have the right to have sent to them (at the same time as the same are sent to the holders of Ordinary Shares) all notices of general meetings of the Company and a copy of every circular or other like document sent out by the Company to the holders of Ordinary Shares.
Further preference shares
(9) The special rights attached to any Dollar Preference Shares of any series allotted or in issue shall not (unless otherwise provided by their terms of issue) be deemed to be varied by the creation or issue of any other preference shares or further shares in any currency ("new shares") ranking as regards participation in the profits and assets of the Company pari passu with such Dollar Preference Shares and so that any new shares ranking pari passu with such Dollar Preference Shares may either carry rights and restrictions identical in all respects with such Dollar Preference Shares or any of them or rights and restrictions differing therefrom in any respect including but without prejudice to the generality of the foregoing in that:
(a) the rate of and/or basis of calculation of dividend may differ and the dividend may be cumulative or non-cumulative;
(b) the new shares or any series thereof may rank for dividend as from such date as may be provided by the terms of issue thereof and the dates of payment of dividend may differ;
(c) a premium may be payable on return of capital or there may be no such premium;
(d) the new shares may be redeemable at the option of the holder or of the Company, or may be non-redeemable, and if redeemable at the option of the Company they may be redeemable at different dates and on different terms from those applying to the Dollar Preference Shares; and
(e) the new shares may be convertible into Ordinary Shares or any other class of shares ranking as regards participation in the profits and assets of the Company pari passu with or after such Dollar Preference Shares in each case on such terms and conditions as may be prescribed by the terms of issue thereof.
Variation of class rights
(10)(a) Subject to the provisions of the Act:
(i) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to the Dollar Preference Shares may from time to time (whether or not the Company is being wound up) be varied or abrogated with the consent in writing of the holders of not less than three-quarters in nominal value of the Dollar Preference Shares of all series in issue or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of the Dollar Preference Shares, voting as a single class without regard for series; and
(ii) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to Dollar Preference Shares of any series may be varied or abrogated so as to affect adversely such rights on a basis different from any other series of Dollar Preference Shares with the consent in writing of the holders of not less than three-quarters in nominal value of the Dollar Preference Shares of such series or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of Dollar Preference Shares of such series.
All the provisions of these Articles as to
general to any such meetings of the Company
shall mutatis mutandis apply separate general
meeting, but so that the necessary quorum shall
be two persons holding or representing by proxy
at least one-third in nominal value of the
issued shares of the class, that every holder of
shares of the class shall be entitled on a poll
to one vote for every share of the class held by
him, that any holder of shares of the class
present in person or by proxy may demand a poll
and that at any adjourned meeting of the holders
one holder present in person or by proxy
(whatever the number of shares held by him)
shall be a quorum.
(b) Unless otherwise provided by its terms of issue, the rights attached to any Dollar Preference Share shall not be deemed to be varied or abrogated by a reduction of any share capital or purchase by the Company or redemption of any share capital in each case ranking as regards participation in the profits and assets of the Company in priority to or pari passu with or after such Dollar Preference Share.
5B Rights of the Euro Preference Shares
5B.1 The following rights and restrictions shall be attached
to the Euro Preference Shares:
(1) The Euro Preference Shares shall rank pari passu inter se and with the Dollar Preference Shares and the Sterling Preference Shares and with all other shares expressed to rank pari passu therewith. They shall confer the rights and be subject to the limitations set out in this Article. They shall also confer such further rights (not being inconsistent with the rights set out in this Article) and be subject to such further limitations and restrictions as may be attached by the Board to such shares prior to allotment. Whenever the Board has power under this Article to determine any of the rights attached to any of the Euro Preference Shares, the rights so determined need not be the same as those attached to the Euro Preference Shares which have then been allotted or issued. The Euro Preference Shares may be issued in one or more separate series and each series shall be identified in such manner as the Board may determine without any such determination or identification requiring any alteration to these Articles.
(2) Each Euro Preference Share shall confer the following rights as to dividend and capital:
Income
(a) the right (subject to the provisions of paragraph (4) of this Article, if applicable) in priority to the payment of any dividend to the holders of Ordinary Shares and any other class of shares of the Company in issue (other than (i) the Dollar Preference Shares, the Sterling Preference Shares and any other shares expressed to rank pari passu therewith as regards income and (ii) any shares which by their terms rank in priority to the Euro Preference Shares as regards income) to a non-cumulative preferential dividend in euro payable at such rate (whether fixed, variable or floating or to be determined by a specified procedure, mechanism or formula) on such dates (each a "Dividend Payment Date") and on such other terms and conditions as may be determined by the Board prior to allotment thereof;
Capital
(b) the right in a winding up of the Company (but not, unless
otherwise provided by the terms of issue of such share, upon
a redemption, reduction or purchase by the Company of any of
its share capital) to receive in euro out of the assets of
the Company available for distribution to its members in
priority to any payment to the holders of the Ordinary
Shares and any other class of shares of the Company in issue
(other than (i) the Dollar Preference Shares, the Sterling
Preference Shares and any other shares expressed to rank
pari passu therewith as regards repayment of capital and
(ii) any shares which by their terms rank in priority to the
Euro Preference Shares as regards repayment of capital):
(i) a sum equal to:
(A) the amount of any dividend which is due for payment after the date of commencement of the winding up but which is payable in respect of a period ending on or before such date; and
(B) if the date of commencement of the winding up falls before the last day of a period in respect of which a dividend would have been payable and which began before such date, any further amount of dividend which would have been payable had the day before such date been the last day of that period
but only to the extent that any such amount or further amount was, or would have been, payable as a dividend in accordance with or pursuant to this Article; and
(ii) subject thereto, a sum equal to the amount paid up or credited as paid up on such share together with such premium (if any) as may be determined by the Board (or by a procedure, mechanism or formula determined by the Board) prior to allotment thereof (and so that the Board may determine that such premium is payable only in specified circumstances).
Limitations
(3) No Euro Preference Share shall;
(a) confer any right to participate in the profits or assets of the Company other than that set out in sub-paragraphs (2)(a) and (b) of this Article;
(b) subject to the Act, confer any right to participate in any offer or invitation by way of rights or otherwise to subscribe for additional shares or securities in the Company;
(c) confer any right of conversion; or
(d) confer any right to participate in any issue of bonus shares or shares issued by way of capitalisation of reserves.
Further provisions as to income
(4) All or any of the following provisions shall apply in relation to any Euro Preference Shares of any series ("relevant Euro Preference Shares") if so determined by the Board prior to allotment thereof;
(a) (i) if, on any Dividend Payment Date ("the relevant date") on which a dividend ("the relevant dividend") would otherwise fall to be paid on any relevant Euro Preference Shares, the profits of the Company available for distribution are, in the opinion of the Board, insufficient to enable payment in full to be made of the relevant dividend, then the Board shall (after payment in full, or the setting aside of a sum required for payment in full, of all dividends payable on or before the relevant date on any shares in the capital of the Company in priority to the relevant Euro Preference Shares) apply such profits, if any, in paying dividends to the holders of participating shares (as defined below) pro rata to the amounts of dividend on participating shares accrued and payable on or before the relevant date. For the purposes of this paragraph, the expression "participating shares" shall mean the relevant Euro Preference Shares and any other shares in the capital of the Company which rank pari passu as to participation in profits with the relevant Euro Preference Shares and on which either (1) a dividend is payable on the relevant date or (2) arrears of cumulative dividend are unpaid at the relevant date;
(ii) if it shall subsequently appear that any such dividend which has been paid in whole or in part should not, in accordance with the provisions of this sub-paragraph, have been so paid, then provided the Board shall have acted in good faith, they shall not incur any liability for any loss which any shareholder may suffer in consequence of such payment having been made;
(b) if the payment of any dividend on any relevant Euro Preference Shares would breach or cause a breach of the capital adequacy requirements of the Financial Services Authority (or any successor organisation responsible for the supervision of banks in the United Kingdom) from time to time applicable to the Company and/or any of its subsidiaries, then none of such dividend shall be payable;
(c) if a dividend or any part thereof on any relevant Euro Preference Shares is not paid for the reasons specified in sub-paragraphs (a) or (b) above, the holders of such shares shall have no claim in respect of such non-payment;
(d) if any dividend on any relevant Euro Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, the Company may not thereafter purchase or redeem any other share capital of the Company ranking pari passu with or after the relevant Euro Preference Shares (and may not contribute any moneys to a sinking fund for any such purchase or redemption) until such time as dividends on the relevant Euro Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or an amount equivalent thereto shall have been paid or set aside to provide for such payment in full);
(e) if any dividend on any relevant Euro Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, no dividend or other distribution may thereafter be declared or paid on any other share capital of the Company ranking as to dividend after the relevant Euro Preference Shares until such time as dividends on the relevant Euro Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or a sum shall have been paid or set aside to provide for such payment in full).
Redemption
(5) (a) Unless otherwise determined by the Board in
relation to Euro Preference Shares of any series
prior to allotment thereof, the Euro Preference
Shares shall, subject to the provisions of the
Act, be redeemable at the option of the Company.
(b) In the case of any series of Euro Preference
Shares which are to be so redeemable:
(i) the Company may, subject to the provisions of
the Act and sub-paragraph (ii) below, redeem
on any Redemption Date (as hereinafter
defined) all, but not merely some, of the
Euro Preference Shares of such series by
giving to the holders of the Euro Preference
Shares to be redeemed not less than 30 days'
nor more than 60 days' prior notice in
writing (a "Notice of Redemption") of the
relevant Redemption Date. "Redemption Date"
means, in relation to Euro Preference Shares
of a particular series, any date mentioned in
any one of (A), (B) or (C) below, as
determined by the Board prior to the first
allotment of Euro Preference Shares of that
series:
(A) any date which falls on or after the
First Redemption Date (as hereinafter
defined); or
(B) the First Redemption Date or any
subsequent Dividend Payment Date for
Euro Preference Shares of that series;
or
(C) the First Redemption Date or any
successive fifth anniversary thereof.
"First Redemption Date" means:
(D) in relation to any Euro Preference
Shares designated as "Series 1", 30 June
2012;
(E) in relation to any other Euro Preference
Shares of a particular series, one day
after such one of the following dates as
shall be determined by the Board prior
to the first allotment of Euro
Preference Shares of that series:
(1) five years after the Relevant Date
(as hereinafter defined);
(2) ten years after the Relevant Date;
(3) fifteen years after the Relevant
Date;
(4) twenty years after the Relevant
Date;
(5) thirty years after the Relevant
Date. "Relevant Date" means, in
relation to Euro Preference Shares
of a particular series, such one of
the following dates as shall be
determined by the Board prior to
the first allotment of Euro
Preference Shares of that series:
(F) the first date of allotment of Euro
Preference Shares of that series; or
(G) the first Dividend Payment Date for Euro
Preference Shares of that series;
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(ii) if either of the restrictions in sub-paragraphs (4)(a)(i) and (4)(a)(ii) of this Article applies to any dividend otherwise payable on any Redemption Date on the Euro Preference Shares of that series, the Company may not redeem such Euro Preference Shares on that Redemption Date;
(iii) there shall be paid on each Euro Preference Share so redeemed, in euro, the aggregate of the nominal amount thereof and any premium credited as paid up on such share together with any dividend payable on the Redemption Date;
(iv) any Notice of Redemption given under sub-paragraph (b)(i) above shall specify the applicable Redemption Date, the particular Euro Preference Shares to be redeemed and the redemption price, and shall state the place or places at which documents of title or such other evidence as may be accepted by the Board in respect of such Euro Preference Shares are to be presented and surrendered for redemption and payment of the redemption moneys is to be effected. Upon such Redemption Date, the Company shall redeem the particular Euro Preference Shares to be redeemed on that date subject to the provisions of this paragraph and of the Act. No defect in the Notice of Redemption or in the giving thereof shall affect the validity of the redemption proceedings;
(v) payments in respect of the amount due on redemption of a Euro Preference Share shall be made by euro cheque drawn on a bank in a member state of the European Union (or such other country participating in European Monetary Union from time to time) or upon the request of the holder or joint holders not later than the date specified for the purpose in the Notice of Redemption by transfer to a euro account maintained by the payee with a bank in a member state of the European Union (or such other country participating in European Monetary Union from time to time) or by such other method as the Board may determine. Such payment will be made against presentation and surrender of the relative certificate at the place or one of the places specified in the Notice of Redemption or against such other evidence as may be accepted by the Board.
All payments in respect of redemption moneys will in all respects be subject to any applicable fiscal or other laws;
(vi) as from the relevant Redemption Date the dividend on the Euro Preference Shares due for redemption shall cease to accrue except on any such Euro Preference Shares in respect of which, upon due surrender of the certificate or other evidence aforesaid, payment of the redemption moneys due on such Redemption Date shall be improperly withheld or refused, in which case such dividend, at the rate then applicable, shall be deemed to have continued and shall accordingly continue to accrue from the relevant Redemption Date to the date of payment of such redemption moneys. Such Euro Preference Shares shall not be treated as having been redeemed until the redemption moneys in question together with the accrued dividend thereon shall have been paid;
(vii) if the due date for the payment of the redemption moneys on any Euro Preference Share is not a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System (or any successor system) is open (a "Euro Business Day"), then payment of such moneys will be made on the next succeeding day which is a Euro Business Day and without any interest or other payment in respect of such delay; and
(viii) the receipt of the holder for the time being of any Euro Preference Shares (or, in the case of joint registered holders, the receipt of any one of them) for the moneys payable on redemption thereof shall constitute an absolute discharge to the Company in respect thereof.
(c) Upon the redemption or purchase of any Euro Preference Shares the Board shall have power without any further resolution or consent to convert the authorised but unissued Euro Preference Shares existing as a result of such redemption or purchase into shares of any other class of share capital into which the authorised share capital of the Company is or may be divided of the same nominal amount in euro as the Euro Preference Shares or into unclassified shares of the same nominal amount in euro as the Euro Preference Shares.
(d) Any Euro Preference Shares redeemed pursuant to this paragraph (5) shall be cancelled on redemption.
Purchase
(6) Subject to the provisions of the Act, the Company may at any time purchase any Euro Preference Shares (i) in the market, (ii) by tender (available alike to all holders of the same class of Euro Preference Shares) or (iii) by private treaty, in each case upon such terms as the Board shall determine.
Consolidation and division
(7) Pursuant to the authority given by the passing of the resolution adopting this Article the Board may consolidate and divide and/or sub-divide any Euro Preference Shares into shares of a larger or smaller amount.
Attendance and voting at general meetings
(8) (a) Save as provided by its terms of issue, no Euro
Preference Share shall carry any right to attend or
vote at general meetings of the Company.
(b) If so determined by the Board prior to allotment
thereof, holders of Euro Preference Shares of any
series shall have the right to attend and vote at
general meetings of the Company in the following
circumstances:
(i) if any dividend on any Euro Preference Shares
of that series in respect of such period as
the Board shall determine prior to allotment
thereof is not paid in full, the right to
attend and vote at general meetings of the
Company until such time as dividends on those
Euro Preference Shares in respect of such
period as the Board shall determine prior to
allotment thereof shall have been paid in
full (or a sum shall have been paid or set
aside to provide for such payment in full);
(ii) in such other circumstances, and upon and
subject to such terms, as the Board may
determine prior to allotment of such Euro
Preference Shares.
(c) Whenever holders of Euro Preference Shares are
entitled to vote on a resolution at a general
meeting, on a show of hands every such holder who is
present in person shall have one vote and on a poll
every such holder who is present in person or by
proxy shall have one vote per Euro Preference Share
held by him or such number of votes per share as the
Board shall determine prior to allotment of such
share.
(d) Holders of Euro Preference Shares having a
registered address or address for correspondence
within the United Kingdom shall have the right to
have sent to them (at the same time as the same are
sent to the holders of Ordinary Shares) all notices
of general meetings of the Company and a copy of
every circular or other like document sent out by
the Company to the holders of Ordinary Shares.
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Further preference shares
(9) The special rights attached to any Euro Preference Shares of any series allotted or in issue shall not (unless otherwise provided by their terms of issue) be deemed to be varied by the creation or issue of any other preference shares or further shares in any currency ("new shares") ranking as regards participation in the profits and assets of the Company pari passu with such Euro Preference Shares and so that any new shares ranking pari passu with such Euro Preference Shares may either carry rights and restrictions identical in all respects with such Euro Preference Shares or any of them or rights and restrictions differing therefrom in any respect including but without prejudice to the generality of the foregoing in that:
(a) the rate of and/or basis of calculation of dividend may differ and the dividend may be cumulative or non-cumulative;
(b) the new shares or any series thereof may rank for dividend as from such date as may be provided by the terms of issue thereof and the dates of payment of dividend may differ;
(c) a premium may be payable on return of capital or there may be no such premium;
(d) the new shares may be redeemable at the option of the holder or of the Company, or may be non-redeemable, and if redeemable at the option of the Company they may be redeemable at different dates and on different terms from those applying to the Euro Preference Shares; and
(e) the new shares may be convertible into Ordinary Shares or any other class of shares ranking as regards participation in the profits and assets of the Company pari passu with or after such Euro Preference Shares in each case on such terms and conditions as may be prescribed by the terms of issue thereof.
Variation of class rights
(10) (a) Subject to the provisions of the Act:
(i) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to the Euro Preference Shares may from time to time (whether or not the Company is being wound up) be varied or abrogated with the consent in writing of the holders of not less than three-quarters in nominal value of the Euro Preference Shares of all series in issue or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of the Euro Preference Shares, voting as a single class without regard for series; and
(ii) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to Euro Preference Shares of any series may be varied or abrogated so as to affect adversely such rights on a basis different from any other series of Euro Preference Shares with the consent in writing of the holders of not less than three-quarters in nominal value of the Euro Preference Shares of such series or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of Euro Preference Shares of such series.
All the provisions of these Articles as to general meetings of the Company shall mutatis mutandis apply to any such separate general meeting, but so that the necessary quorum shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class, that every holder of shares of the class shall be entitled on a poll to one vote for every share of the class held by him, that any holder of shares of the class present in person or by proxy may demand a poll and that at any adjourned meeting of the holders one holder present in person or by proxy (whatever the number of shares held by him) shall be a quorum.
(b) Unless otherwise provided by its terms of issue, the rights attached to any Euro Preference Share shall not be deemed to be varied or abrogated by a reduction of any share capital or purchase by the Company or redemption of any share capital in each case ranking as regards participation in the profits and assets of the Company in priority to or pari passu with or after such Euro Preference Share."; and
(iv) by the re-numbering of the existing Article 5A (Rights of the Non-voting Deferred Shares) as Article 5C.
ORDINARY RESOLUTION
5 THAT the Directors be and they are hereby generally and unconditionally authorised pursuant to and for the purposes of section 80 of the Companies Act 1985 to exercise all the powers of the Company to allot relevant securities (within the meaning of that section) up to an aggregate nominal amount of US$848,847,000 and either (pound)500,000,000 (in the form of non-cumulative Sterling Preference Shares of (pound)1 each) or, conditional upon the passing of Resolution 4 set out in the Notice of this Meeting of which this Resolution forms part ("the Condition"), (pound)100,000, US$100,000 and (euro)100,000 (in each such case in the form of 10,000,000 non-cumulative preference shares) provided that this authority shall be limited so that, otherwise than pursuant to:
(a) a rights issue or other issue the subject of an offer or invitation, open for acceptance for a period fixed by the Directors, to:
(i) Ordinary Shareholders where the relevant securities respectively attributable to the interests of all Ordinary Shareholders are proportionate (or as nearly as may be) to the respective number of Ordinary Shares held by them; and
(ii) holders of securities, bonds, debentures or warrants which, in accordance with the rights attaching thereto, are entitled to participate in such a rights issue or other issue,
but subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or securities represented by depositary receipts or having regard to any restrictions, obligations or legal problems under the laws of or the requirements of any regulatory body or stock exchange in any territory or otherwise howsoever; or
(b) the terms of any share scheme for employees of the Company or any of its subsidiary undertakings; or
(c) any scrip dividend scheme or similar arrangements implemented in accordance with the Articles of Association of the Company; or
(d) the allotment of up to 500,000,000 non-cumulative Sterling Preference Shares of (pound)1 each in the capital of the Company or, if the Condition is satisfied, the allotment of up to 10,000,000 non-cumulative preference shares of (pound)0.01 each, 10,000,000 non-cumulative preference shares of US$0.01 each and 10,000,000 non-cumulative preference shares of (euro)0.01 each in the capital of the Company,
the nominal amount of relevant securities to be allotted by the Directors pursuant to this authority wholly for cash shall not in aggregate exceed US$212,211,750 (being equal to approximately 5 per cent of the nominal amount of Ordinary Shares of the Company in issue at the date of the Notice of this Meeting) and such authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2001 save that this authority shall allow the Company before the expiry of this authority to make offers or agreements which would or might require relevant securities to be allotted after such expiry and the Directors may allot relevant securities in pursuance of such offers or agreements as if the authority conferred hereby had not expired.
SPECIAL RESOLUTION
6 THAT, subject to the passing of Resolution 5 set out in the Notice convening this Meeting, the Directors be and they are hereby empowered, pursuant to section 95 of the Companies Act 1985 ("the Act") to allot equity securities (as defined by section 94 of the Act) pursuant to the authority conferred by Resolution 5 as if section 89(1) of the Act did not apply to any such allotment, provided that this power shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2001 save that this power shall enable the Company before the expiry of this power to make offers or agreements which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such offers or agreements as if the power conferred hereby had not expired.
ORDINARY RESOLUTIONS
7 THAT the Company be and is generally and unconditionally authorised to make market purchases (within the meaning of section 163 of the Companies Act 1985) of Ordinary Shares of US$0.50 each in the capital of the Company ("Ordinary Shares") and the Directors are authorised to exercise such authority provided that:
(a) the maximum number of Ordinary Shares hereby authorised to be purchased is 848,847,000 Ordinary Shares;
(b) the minimum price (exclusive of expenses) which may be paid for each Ordinary Share is US$0.50 (or the equivalent in the relevant currency in which the purchase is effected calculated by reference to the spot rate of exchange for the purchase of United States dollars with such other currency as quoted by HSBC Bank plc in the London Foreign Exchange Market at or about 11.00 am (London time) on the business day (being a day on which banks are ordinarily open for the transaction of normal banking business in London) prior to the date on which the Ordinary Share is contracted to be purchased, in each case such rate to be the rate as conclusively certified by an officer of HSBC Bank plc);
(c) the maximum price (exclusive of expenses) which may be paid for each Ordinary Share is the lower of (i) 105 per cent of the average of the middle market quotations for the Ordinary Shares (as derived from the Daily Official List of the London Stock Exchange Limited) for the five dealing days immediately preceding the day on which the Ordinary Share is contracted to be purchased or (ii) 105 per cent of the average of the closing prices of Ordinary Shares on The Stock Exchange of Hong Kong Limited for the five dealing days immediately preceding the day on which the Ordinary Share is contracted to be purchased, in each case converted (where relevant) into the relevant currency in which the purchase is effected calculated by reference to the spot rate of exchange for the purchase of such currency with the currency in which the quotation and/or price is given as quoted by HSBC Bank plc in the London Foreign Exchange Market at or about 11.00 am (London time) on the business day prior to the date on which the Ordinary Share is contracted to be purchased, in each case such rate to be the rate as conclusively certified by an officer of HSBC Bank plc;
(d) unless previously revoked or varied this authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2001; and
(e) the Company may prior to the expiry of this authority make a contract to purchase Ordinary Shares under this authority which will or may be executed wholly or partly after such expiry and may make a purchase of Ordinary Shares pursuant to any such contract.
8 THAT the amended rules of the HSBC Holdings Savings-Related Share Option Plan ("SAYE Plan") (the main features of which are summarised in Appendix II to the Chairman's letter to Shareholders dated 19 April 2000 and a copy of which has been signed for the purposes of identification by the Chairman of the Meeting) including the deferral of the final date on which options may be granted under the SAYE Plan to 26 May 2010 are hereby approved and that the Directors are hereby authorised to do whatever may be necessary or expedient to carry the amended SAYE Plan into effect including making such changes as may be necessary to secure the approval of the Inland Revenue under Schedule 9 to the Income and Corporation Taxes Act 1988.
9 THAT the amended rules of the HSBC Holdings Savings-Related Share Option Plan: Overseas Section ("Overseas SAYE Plan") (the main features of which are summarised in Appendix II to the Chairman's letter to Shareholders dated 19 April 2000 and a copy of which has been signed for the purposes of identification by the Chairman of the Meeting) including the deferral of the final date on which options may be granted under the Overseas SAYE Plan to 26 May 2010 are hereby approved and that the Directors are hereby authorised to do whatever may be necessary or expedient to carry the amended Overseas SAYE Plan into effect.
10 THAT the HSBC Holdings UK All-Employee Share Ownership Plan ("the UK AESOP") (the main features of which are summarised in Appendix II to the Chairman's letter to Shareholders dated 19 April 2000 and the draft rules of which have been signed for the purposes of identification by the Chairman of the Meeting) is hereby approved and that the Directors are hereby authorised to do whatever may be necessary or expedient to carry the UK AESOP into effect including making such amendments to the draft rules as they consider necessary to take account of the relevant provisions of the Finance Act 2000 when enacted and to obtain Inland Revenue approval of the UK AESOP.
11 THAT the Directors be and are hereby authorised to establish for the benefit of non-United Kingdom resident employees of the Company or of any of its direct or indirect subsidiaries such further all-employee share ownership plans as the Directors shall from time to time consider appropriate, provided that:
(a) any such further plans are based on or similar to the HSBC Holdings UK All-Employee Share Ownership Plan or any part or parts thereof but with such variations as the Directors may consider necessary or desirable taking into account local tax, exchange control and securities laws in relevant overseas countries or territories; and
(b) where Ordinary Shares made available under such further plans are newly issued such Shares shall be counted against the overall limits applicable to the Company's employee share plans,
and in any event this authority shall extend to establishing, for the benefit of French-resident employees of the Company or of any of its direct or indirect subsidiaries, one or more plans d'epargne d'entreprise or similar plans on such terms as the Directors shall consider appropriate in accordance with French law and practice and shall also extend to making Ordinary Shares available under such plan or plans, and so that for this purpose establishing a plan also includes participating in a plan established or operated by any direct or indirect subsidiary, or establishing or participating in a sub-plan or adopting such other method or approach as the Directors consider appropriate to achieve the relevant objectives.
12 THAT the HSBC Holdings Group Share Option Plan ("the New Option Plan") (the main features of which are summarised in Appendix II to the Chairman's letter to Shareholders dated 19 April 2000 and the draft rules of which have been signed for the purposes of identification by the Chairman of the Meeting) is hereby approved and that the Directors are hereby authorised to do whatever may be necessary or expedient to carry the New Option Plan into effect including making such changes to Part A of the New Option Plan as may be necessary to secure the approval of the Inland Revenue under schedule 9 to the Income and Corporation Taxes Act 1988, and creating such schedules to or sub-plans (which are, or may be deemed for relevant purposes to be, independent plans) of the New Option Plan as they consider necessary or desirable for the benefit of non-United Kingdom resident employees of the Company or its subsidiaries, taking account of local tax, exchange control and securities laws in the relevant country or territory.
13 THAT the HSBC Holdings Restricted Share Plan 2000 (the main features of which are summarised in Appendix II to the Chairman's letter to Shareholders dated 19 April 2000 and the draft rules of which have been signed for the purposes of identification by the Chairman of the Meeting) is hereby approved and that the Directors are hereby authorised to do whatever may be necessary or expedient to carry the HSBC Holdings Restricted Share Plan 2000 into effect and to create such schedules to or sub-plans (which are, or may be deemed for relevant purposes to be, independent plans) of the HSBC Holdings Restricted Share Plan 2000 as they consider necessary or desirable for the benefit of non-United Kingdom resident employees of the Company or its subsidiaries, taking account of local tax, exchange control and securities laws in the relevant country or territory.
14 THAT pursuant to Article 104.1 of the Articles of Association of the Company with effect from 1 January 2000 the Directors (other than alternate Directors) shall be entitled to receive (pound)35,000 per annum by way of fees for their services as Directors.
J R H Bond Chairman
THE COMPANIES ACTS 1985 AND 1989
PUBLIC COMPANY LIMITED BY SHARES
RESOLUTIONS
of
HSBC Holdings plc
At the Annual General Meeting of HSBC Holdings plc held at the Barbican Hall, Barbican Centre, London EC2 on Friday, 25 May 2001, the following Resolutions were passed:
SPECIAL RESOLUTION
4 THAT
(a) the authorised share capital of the Company denominated in United States dollars be increased to US$7,500,100,000 by the creation of an additional 4,500,000,000 Ordinary Shares of US$0.50 each; and
(b) the Articles of Association of the Company be and are hereby altered by the deletion of Article 4.1 and the substitution therefor of the following:
"4.1 The authorised share capital of the Company is US$7,500,100,000
divided into 15,000,000,000 Ordinary Shares of US$0.50 each and
10,000,000 Dollar Preference Shares of US$0.01 each,
(pound)401,500 divided into 10,000,000 Sterling Preference Shares
of (pound)0.01 each and 301,500 Non-voting Deferred Shares of
(pound)1 each, and (euro)100,000 divided into 10,000,000 Euro
Preference Shares of (euro)0.01 each."
ORDINARY RESOLUTION
5 THAT the Directors be and they are hereby generally and unconditionally authorised pursuant to and for the purposes of section 80 of the Companies Act 1985 to exercise all the powers of the Company to allot relevant securities (within the meaning of that section) up to an aggregate nominal amount of (pound)100,000, US$100,000 and (euro)100,000 (in each such case in the form of 10,000,000 non-cumulative preference shares) and either US$615,075,000 or, conditional upon the passing of Resolution 4 set out in the Notice of this Meeting, US$926,985,000 (in either such case in the form of Ordinary Shares of US$0.50 each) provided that this authority shall be limited so that, otherwise than pursuant to:
(a) a rights issue or other issue the subject of an offer or invitation, open for acceptance for a period fixed by the Directors, to:
(i) Ordinary Shareholders where the relevant securities respectively attributable to the interests of all Ordinary Shareholders are proportionate (or as nearly as may be) to the respective number of Ordinary Shares held by them; and
(ii) holders of securities, bonds, debentures or warrants which, in accordance with the rights attaching thereto, are entitled to participate in such a rights issue or other issue,
but subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or securities represented by depositary receipts or having regard to any restrictions, obligations or legal problems under the laws of or the requirements of any regulatory body or stock exchange in any territory or otherwise howsoever; or
(b) the terms of any share plan for employees of the Company or any of its subsidiary undertakings; or
(c) any scrip dividend scheme or similar arrangements implemented in accordance with the Articles of Association of the Company; or
(d) the allotment of up to 10,000,000 non-cumulative preference shares of
(pound)0.01 each, 10,000,000 non-cumulative preference shares of US$0.01
each and 10,000,000 non-cumulative preference shares of (euro)0.01 each
in the capital of the Company,
the nominal amount of relevant securities to be allotted by the Directors pursuant to this authority wholly for cash shall not in aggregate exceed US$231,746,250 (being equal to approximately 5 per cent of the nominal amount of Ordinary Shares of the Company in issue at the date of the Notice of this Meeting) and such authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2002 save that this authority shall allow the Company before the expiry of this authority to make offers or agreements which would or might require relevant securities to be allotted after such expiry and the Directors may allot relevant securities in pursuance of such offers or agreements as if the authority conferred hereby had not expired.
SPECIAL RESOLUTION
6 THAT, subject to the passing of Resolution 5 set out in the Notice of this Meeting, the Directors be and they are hereby empowered pursuant to section 95 of the Companies Act 1985 ("the Act") to allot equity securities (as defined by section 94 of the Act) pursuant to the authority conferred by Resolution 5 as if section 89(1) of the Act did not apply to any such allotment, provided that this power shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2002 save that this power shall enable the Company before the expiry of this power to make offers or agreements which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such offers or agreements as if the power conferred hereby had not expired.
ORDINARY RESOLUTION
7 THAT the Company be and is generally and unconditionally authorised to make market purchases (within the meaning of section 163 of the Companies Act 1985) of Ordinary Shares of US$0.50 each in the capital of the Company ("Ordinary Shares") and the Directors are authorised to exercise such authority provided that:
(a) the maximum number of Ordinary Shares hereby authorised to be purchased is 926,985,000 Ordinary Shares;
(b) the minimum price (exclusive of expenses) which may be paid for each Ordinary Share is US$0.50 (or the equivalent in the relevant currency in which the purchase is effected calculated by reference to the spot rate of exchange for the purchase of United States dollars with such other currency as quoted by HSBC Bank plc in the London Foreign Exchange Market at or about 11.00 am (London time) on the business day (being a day on which banks are ordinarily open for the transaction of normal banking business in London) prior to the date on which the Ordinary Share is contracted to be purchased, in each case such rate to be the rate as conclusively certified by an officer of HSBC Bank plc);
(c) the maximum price (exclusive of expenses) which may be paid for each Ordinary Share is the lower of (i) 105 per cent of the average of the middle market quotations for the Ordinary Shares (as derived from the Daily Official List of the London Stock Exchange plc) for the five dealing days immediately preceding the day on which the Ordinary Share is contracted to be purchased or (ii) 105 per cent of the average of the closing prices of Ordinary Shares on The Stock Exchange of Hong Kong Limited for the five dealing days immediately preceding the day on which the Ordinary Share is contracted to be purchased, in each case converted (where relevant) into the relevant currency in which the purchase is effected calculated by reference to the spot rate of exchange for the purchase of such currency with the currency in which the quotation and/or price is given as quoted by HSBC Bank plc in the London Foreign Exchange Market at or about 11.00 am (London time) on the business day prior to the date on which the Ordinary Share is contracted to be purchased, in each case such rate to be the rate as conclusively certified by an officer of HSBC Bank plc;
(d) unless previously revoked or varied this authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2002; and
(e) the Company may prior to the expiry of this authority make a contract to purchase Ordinary Shares under this authority which will or may be executed wholly or partly after such expiry and may make a purchase of Ordinary Shares pursuant to any such contract.
SPECIAL RESOLUTION
8 THAT the Articles of Association of the Company be and are hereby altered as follows:
(a) by inserting after the expression "Act" in Article 2.1 the following new expression:
"address in relation to any electronic communication
includes any number or address used for the
purposes of such communication";
|
(b) by inserting after the expression "clear days" in Article 2.1 the following new expression:
"communication has the meaning given to it in the Electronic Communications Act 2000";
(c) by inserting after the expression "Dollar Preference Share" in Article 2.1 the following new expression:
"electronic communication has the meaning given to it in the Electronic Communications Act 2000 and "electronic communications" shall be construed accordingly";
(d) by deleting from the meaning of the expression "The Stock Exchange" in Article 2.1 the word "Limited" and substituting therefor the word "plc";
(e)by adding at the end of the meaning of the expression "writing or written" in Article 2.1 the following words "and, if the Board shall in its absolute discretion determine for any purpose or purposes under these Articles, subject to such terms and conditions as the Board may determine, electronic communications";
(f) by deleting in Article 56.1 the word "instrument" and substituting therefor the word "appointment";
(g) by deleting the final sentence of Article 71.3 and substituting therefor the following:
"Evidence to the satisfaction of the Board of the authority of the person claiming to exercise the right to vote shall be deposited at the Office, or deposited or received at such other place or address as is specified in accordance with these Articles for the deposit or receipt of appointments of proxy, not less than 48 hours before the time appointed for holding the meeting or adjourned meeting at which the right to vote is to be exercised, and in default the right to vote shall not be exercisable.";
(h) by deleting in Article 74.1 the words "Deposit of an instrument of" in the second line and substituting therefor the words "The appointment of a";
(i) in Article 75.1:
(i) by deleting the words "instrument appointing" in the first line and substituting therefor the words "appointment of";
(ii) by deleting Article 75.1(a) and substituting therefor the following:
"be in writing and, if the Board in its absolute discretion determines, may be contained in an electronic communication, in any such case in any common form or in such other form as the Board may approve and: (i) if in writing but not contained in an electronic communication, under the hand of the appointor or of his attorney duly authorised in writing or, if the appointor is a corporation, under its common seal or under the hand of some officer or attorney duly authorised in that behalf; or (ii) in the case of an appointment contained in an electronic communication, submitted by or on behalf of the appointor, subject to such terms and conditions and authenticated in such manner as the Board may in its absolute discretion determine;";
(j) by altering the title of Article 76 to "Deposit or receipt of proxy" and making the following alterations to Article 76.1:
(i) deleting the words "instrument appointing" in the first line and substituting therefor the words "appointment of";
(ii) in Article 76.1(a):
(A) adding the following words at the beginning of that Article:
"in the case of an instrument in writing (including, whether or not the appointment of proxy is contained in an electronic communication, any such power of attorney or other authority),";
(B) deleting the word "instrument" in the fifth line and substituting therefor the word "appointment";
(iii) inserting after Article 76.1(a) the following new Article 76.1(aa):
"(aa) in the case of an appointment contained in an electronic communication, where an address has been specified for the purpose of receiving communications:
(A) in the notice convening the meeting; or
(B) in any instrument of proxy sent out by the Company in relation to the meeting; or
(C) in any invitation contained in an electronic communication to appoint a proxy issued by the Company in relation to the meeting,
be received at such address not less than 48 hours before the time for holding the meeting or adjourned meeting at which the person named in the appointment proposes to vote; or";
(iv) adding in Article 76.1(b) the words "or received" after the word "deposited";
(v) deleting the existing text after Article 76.1(c) and substituting therefor the following:
"and an appointment of proxy not deposited, delivered or received in a manner so permitted shall be invalid. No appointment of proxy shall be valid after the expiry of 12 months from the date named in it as the date of its execution or the date of its submission, except at an adjourned meeting or on a poll demanded at a meeting or an adjourned meeting in cases where the meeting was originally held within 12 months from such date.";
(k) by deleting Article 77.1 and substituting therefor the following:
"A member may appoint more than one proxy to attend on the same occasion. When two or more valid but differing appointments of proxy are delivered or received in respect of the same share for use at the same meeting and in respect of the same matter, the one which is last validly delivered or received (regardless of its date or of the date of its execution or submission) shall be treated as replacing and revoking the other or others as regards that share. If the Company is unable to determine which appointment was last validly delivered or received, none of them shall be treated as valid in respect of that share.";
(l) in Article 78.1, by deleting the first sentence and substituting therefor the following:
"The Board may at the expense of the Company send or make available, by
post, electronic communication or otherwise, appointments of proxy
(reply-paid or otherwise) to members for use at any general meeting(s)
or at any separate meeting(s) of the holders of any class of shares,
either in blank or nominating in the alternative any one or more of the
Directors or any other persons.";
(m) by deleting Article 79.1 and substituting therefor the following:
"A vote given or poll demanded in accordance with the terms of an appointment of proxy shall be valid notwithstanding the death or mental disorder of the principal or the revocation of the appointment of proxy, or of the authority under which the appointment of proxy was executed or submitted, or the transfer of the share in respect of which the appointment of proxy is given, unless notice in writing of such death, mental disorder, revocation or transfer shall have been received by the Company at the Office, or at such other place or places or address as has or have been appointed for the deposit or receipt of appointments of proxy, at least 48 hours before the commencement of the meeting or adjourned meeting or the taking of the poll at which the appointment of proxy is used.";
(n) by adding the following new Article 91.2:
"91.2 In addition to the Directors required to retire by rotation under Article 91.1, there shall also be required to retire by rotation any Director who at an annual general meeting of the Company shall have been a Director at each of the preceding two annual general meetings of the Company and who was not elected or re-elected at either such annual general meeting and who has not otherwise ceased to be a Director (either by resignation, retirement, removal or otherwise) and been re-elected by general meeting of the Company at or since either such annual general meeting.";
(o) by altering the title of Article 159 to "Form of Notices" and making the following alterations to Article 159:
(i) deleting the first sentence of Article 159.1 and substituting therefor the following:
"Notwithstanding anything to the contrary in these Articles, any notice or document to be given, sent, issued, deposited, served or delivered (or the equivalent) to or by any person pursuant to these Articles (other than a notice calling a meeting of the Directors) shall be in writing and, if the Board in its absolute discretion considers appropriate for any purpose or purposes under these Articles, any such notice or document shall be deemed given, sent, issued, deposited, served or delivered (or the equivalent) where it is sent using electronic communications to an address for the time being notified for that purpose to the person giving the notice, but subject always to the provisions of Article 162. In the case of notices or other documents sent by means of electronic communication the Board may make this subject to such terms and conditions as it shall in its absolute discretion consider appropriate.";
(ii) adding the following new Article 159.2:
"159.2 For the purposes of Article 159.1, notices or documents shall be treated as being sent using electronic communications by the Company to a person where (i) the Company and that person have agreed to his having access to the notice or document on a web site (instead of such notice or document being sent to him) (ii) the notice or document (as the case may be) is a notice or document to which that agreement applies and (iii) a notice is sent to the person, in a manner for the time being agreed for that purpose between him and the Company, of (a) the publication of that notice or document on the web site (b) the address of the web site and (c) the place on that web site where the notice or document may be accessed, and how it may be accessed, and in any such case the notification referred to above shall be treated as the relevant notice for the purposes of these Articles.";
(p) by adding in Article 160.1 after the words "that address" in the third line the words "or, in the circumstances referred to in Article 159, by sending it using electronic communications to an address for the time being notified to the Company by the member";
(q) by deleting Article 160.3 and substituting therefor the following:
"Where a member (or, in the case of joint holders, the person first named in the Register) has a registered address outside Hong Kong or the United Kingdom but has notified the Company of an address within Hong Kong or the United Kingdom at which notices or other documents may be given to him or, if the Board in its absolute discretion permits, an address to which notices or documents may be sent using electronic communications, he shall be entitled to have notices or documents given or sent to him at that address but otherwise no such member shall be entitled to receive any notice or document from the Company. If on at least two consecutive occasions the Company has attempted to send notices or documents using electronic communications to an address for the time being notified to the Company by a member for that purpose but the Company is aware that there has been a failure of delivery of such notice or document in the manner described in Article 162.3, then the Company shall thereafter send notices or documents through the post to such member at his registered address or his address for the service of notices by post, in which case the provisions of the remainder of this Article shall apply. If on three consecutive occasions notices or documents have been sent through the post to any member at his registered address or his address for the service of notices but have been returned undelivered, such member shall not thereafter be entitled to receive notices or documents from the Company until he shall have communicated with the Company and supplied in writing a new registered address or address within Hong Kong or the United Kingdom for the service of notices or, if the Board in its absolute discretion permits, an address to which notices or documents may be sent using electronic communications.";
(r) by adding in Article 161.1 after the words "United Kingdom" in the sixth line the words "or to which notices may be sent using electronic communications"; and
(s) by adding the following new Article 162.3:
"162.3 Any notice or other document addressed to a member shall, if sent using electronic communications, be deemed to have been served or delivered at the expiration of 24 hours after the time it was first sent. In proving such service or delivery it shall be conclusive to prove that the address used for the electronic communication was the address supplied for that purpose and the electronic communication was properly dispatched, unless the Company is aware that there has been a failure of delivery of such notice or document following at least 2 attempts in which case such notice or document shall be sent to the member at his registered address or address for service in Hong Kong or the United Kingdom provided that the date of deemed service or delivery shall be 24 hours from the dispatch of the original electronic communication in accordance with this Article.".
Sir John Bond Chairman
THE COMPANIES ACTS 1985 AND 1989
PUBLIC COMPANY LIMITED BY SHARES
RESOLUTIONS
of
HSBC Holdings plc
At the Annual General Meeting of HSBC Holdings plc held at the Barbican Hall, Barbican Centre, London EC2 on Friday, 31 May 2002, the following Resolutions were passed:
ORDINARY RESOLUTION
4 THAT the Directors be and they are hereby generally and unconditionally authorised pursuant to and for the purposes of section 80 of the Companies Act 1985 to exercise all the powers of the Company to allot relevant securities (within the meaning of that section) up to an aggregate nominal amount of (pound)100,000, US$100,000 and (euro)100,000 (in each such case in the form of 10,000,000 non-cumulative preference shares) and US$935,560,000 (in the form of Ordinary Shares of US$0.50 each) provided that this authority shall be limited so that, otherwise than pursuant to:
(a) a rights issue or other issue the subject of an offer or invitation, open for acceptance for a period fixed by the Directors, to:
(i) Ordinary Shareholders where the relevant securities respectively attributable to the interests of all Ordinary Shareholders are proportionate (or as nearly as may be) to the respective number of Ordinary Shares held by them; and
(ii) holders of securities, bonds, debentures or warrants which, in accordance with the rights attaching thereto, are entitled to participate in such a rights issue or other issue,
but subject to such exclusions or other arrangements as the Directors may deem necessary or expedient in relation to fractional entitlements or securities represented by depositary receipts or having regard to any restrictions, obligations or legal problems under the laws of or the requirements of any regulatory body or stock exchange in any territory or otherwise howsoever; or
(b) the terms of any share plan for employees of the Company or any of its subsidiary undertakings; or
(c) any scrip dividend scheme or similar arrangements implemented in accordance with the Articles of Association of the Company; or
(d) the allotment of up to 10,000,000 non-cumulative preference shares of
(pound)0.01 each, 10,000,000 non-cumulative preference shares of US$0.01
each and 10,000,000 non-cumulative preference shares of (euro)0.01 each
in the capital of the Company,
the nominal amount of relevant securities to be allotted by the Directors pursuant to this authority wholly for cash shall not in aggregate exceed US$233,890,000 (being equal to approximately 5 per cent of the nominal amount of Ordinary Shares of the Company in issue at the date of the Notice of this Meeting) and such authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2003 save that this authority shall allow the Company before the expiry of this authority to make offers or agreements which would or might require relevant securities to be allotted after such expiry and the Directors may allot relevant securities in pursuance of such offers or agreements as if the authority conferred hereby had not expired.
SPECIAL RESOLUTION
5 THAT, subject to the passing of Resolution 4 set out in the Notice of this Meeting, the Directors be and they are hereby empowered pursuant to section 95 of the Companies Act 1985 ("the Act") to allot equity securities (as defined by section 94 of the Act) pursuant to the authority conferred by Resolution 4 as if section 89(1) of the Act did not apply to any such allotment, provided that this power shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2003 save that this power shall enable the Company before the expiry of this power to make offers or agreements which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such offers or agreements as if the power conferred hereby had not expired.
ORDINARY RESOLUTIONS
6 THAT the Company be and is hereby generally and unconditionally authorised to make market purchases (within the meaning of section 163 of the Companies Act 1985) of Ordinary Shares of US$0.50 each in the capital of the Company ("Ordinary Shares") and the Directors are authorised to exercise such authority provided that:
(a) the maximum number of Ordinary Shares hereby authorised to be purchased is 935,560,000 Ordinary Shares;
(b) the minimum price (exclusive of expenses) which may be paid for each Ordinary Share is US$0.50 (or the equivalent in the relevant currency in which the purchase is effected calculated by reference to the spot rate of exchange for the purchase of United States dollars with such other currency as quoted by HSBC Bank plc in the London Foreign Exchange Market at or about 11.00 am (London time) on the business day (being a day on which banks are ordinarily open for the transaction of normal banking business in London) prior to the date on which the Ordinary Share is contracted to be purchased, in each case such rate to be the rate as conclusively certified by an officer of HSBC Bank plc);
(c) the maximum price (exclusive of expenses) which may be paid for each Ordinary Share is the lower of (i) 105 per cent of the average of the middle market quotations for the Ordinary Shares (as derived from the Daily Official List of the London Stock Exchange plc) for the five dealing days immediately preceding the day on which the Ordinary Share is contracted to be purchased or (ii) 105 per cent of the average of the closing prices of Ordinary Shares on The Stock Exchange of Hong Kong Limited for the five dealing days immediately preceding the day on which the Ordinary Share is contracted to be purchased, in each case converted (where relevant) into the relevant currency in which the purchase is effected calculated by reference to the spot rate of exchange for the purchase of such currency with the currency in which the quotation and/or price is given as quoted by HSBC Bank plc in the London Foreign Exchange Market at or about 11.00 am (London time) on the business day prior to the date on which the Ordinary Share is contracted to be purchased, in each case such rate to be the rate as conclusively certified by an officer of HSBC Bank plc;
(d) unless previously revoked or varied this authority shall expire at the conclusion of the Annual General Meeting of the Company to be held in 2003; and
(e) the Company may prior to the expiry of this authority make a contract to purchase Ordinary Shares under this authority which will or may be executed wholly or partly after such expiry and may make a purchase of Ordinary Shares pursuant to any such contract.
7 THAT the Directors be and are hereby empowered:
(a) to exercise the power conferred upon them by Article 151 of the Articles of Association of the Company in respect of all or part of any dividend payable in respect of any financial period of the Company ending on or before 31 December 2006;
(b) to capitalise from time to time the appropriate nominal amount or amounts of new shares of the Company falling to be allotted pursuant to elections made under the Company's scrip dividend scheme out of the amount or amounts standing to the credit of any reserve account or fund of the Company, to apply that sum in paying up in full the relevant number of such new shares and to allot such new shares pursuant to such elections; and
(c) generally to implement the Company's scrip dividend scheme on such terms and conditions as the Directors may from time to time determine and to take such other actions as the Directors may deem necessary or desirable from time to time in respect of the Company's scrip dividend scheme.
8 THAT the Company be and is hereby generally and unconditionally authorised for the purposes of Part XA of the Companies Act 1985 (as amended) ("the Act") to make donations to EU political organisations and to incur EU political expenditure (as such terms are defined in section 347A of the Act) up to a maximum aggregate amount of (pound)250,000 provided that such authority shall expire at the conclusion of the next Annual General Meeting of the Company to be held after the passing of this resolution.
9 THAT HSBC Bank plc be and is hereby generally and unconditionally authorised for the purposes of Part XA of the Companies Act 1985 (as amended) ("the Act") to make donations to EU political organisations and to incur EU political expenditure (as such terms are defined in section 347A of the Act) up to a maximum aggregate amount of (pound)50,000 provided that such authority shall expire at the conclusion of the next Annual General Meeting of the Company to be held after the passing of this resolution.
Sir John Bond Chairman
THE COMPANIES ACT 1948
and
THE COMPANIES ACTS 1985 AND 1989
MEMORANDUM OF ASSOCIATION
(As altered by Special Resolutions passed on 20 July 1981, 18 December 1990, 25 March 1991, and 28 May 1999, which came into effect on 2 July 1999)
OF
1(1) The name of the Company is "HSBC Holdings plc".
2(2) The Company is to be a public company.
3 The Registered Office of the Company will be situate in England.
4 The objects for which the Company is established are:--
4.1(3) To act as the holding and co-ordinating company of the group of companies of which the Company is for the time being the holding company and in particular (but without prejudice to the generality of the foregoing) to co-ordinate the administration, policies, management, supervision, control, research, planning, business operations and any and all other activities of any company or companies or group of companies any securities of which are held, directly or indirectly, by or on behalf of the Company or which is or are associated in any other manner with the Company, to enter into any arrangements with, or in relation to, any such company or group for sharing profits or losses, union of interests, joint venture, reciprocal concessions or co-operation, the provision of finance and subsidies or otherwise as may be thought expedient, to act as managers, controllers, administrators, advisers and consultants of or to any such company or group or all or any part of its business operations, and generally to perform any services or undertake any duties to or on behalf of or in any other manner assist any such company or group as aforesaid in any such case with or without remuneration in any part of the world.
4.2 To carry on in any part of the world the business of banking of all kinds and to transact and do all matters and things incidental thereto, or which may at any time hereafter, at any place where the Company shall carry on business, be usually carried on as part of or in connection with, or which may conduce to or be calculated to facilitate or render profitable the transaction of, the business of banking or dealing in money or securities of any kind; and, in particular, and without prejudice to such generality:--
(i) To receive money on loan, deposit, current account or otherwise, with or without security, to obtain the use and control of money and securities, and to employ and use the same.
(ii) To advance or lend money with or without security.
(iii)To draw, make, accept, endorse, grant, discount, acquire, buy, sell, issue, negotiate, transfer, hold, invest, or deal in and honour, retire, pay or secure obligations, instruments (whether negotiable or not) and securities of every kind.
(iv) To grant, issue, negotiate, honour, retire and pay letters of credit, circular notes, drafts and other instruments and securities of every kind.
(v) To buy, sell and deal in foreign exchange, precious metals, bullion and specie.
(vi) To contract for public and private loans and to negotiate and issue the same.
(vii) To receive money, securities, documents and valuables on deposit or for safe custody or otherwise.
(viii) To collect and transmit money and securities and to act as agent for the receipt of money or of documents and for the delivery of documents.
(ix) To guarantee or otherwise accept responsibility for the genuineness and validity of obligations, instruments, deeds and documents of all kinds.
(x) To guarantee or otherwise become responsible for the performance of obligations or contracts of every kind by any company or person.
(xi) To promote, effect, insure, guarantee, underwrite, secure the subscription or placing of, subscribe or tender for or procure the subscription of, participate in, manage or carry out any issue, public or private, of state, municipal or other loans, or of shares, stocks, debentures, or debenture stock of any company and to lend money for the purposes of any such issue.
(xii) To receive security for the implementation of any obligations.
(xiii) To grant indemnities against loss and risks of all kinds.
(c) To carry on financial business and financial operations of all kind, and in particular and without prejudice to the generality of the foregoing to finance or assist in the financing of the sale of goods, articles or commodities of all and every kind whether by way of personal loan, hire purchase, instalment finance, deferred payment or otherwise, to acquire by assignment or otherwise, debts due and owing to any person or company and to collect such debts and to constitute and to act as managers of unit trusts and investment trusts and to issue and transact business in respect of all types of bankers' payment systems and to carry on all kinds of insurance business and generally to act as insurance brokers or in any other capacity, and to import, export, buy, sell, barter, exchange, let on hire, pledge, make advances upon or otherwise deal in any property whether tangible or intangible.
(d) To undertake the office of trustee, custodian trustee, administrator, receiver, treasurer, registrar or secretary and to undertake and execute trusts of all kinds and in particular to act as trustee of any deeds constituting or securing any debentures, debenture stock or other securities or obligations.
4.3 To purchase, take on lease or in exchange, hire or otherwise acquire and hold, for any estate or interest, and manage any lands, buildings, servitude, easements, rights, privileges, concessions, machinery, plant, stock-in-trade and any heritable or moveable real or personal property of any kind.
4.4 To purchase or otherwise acquire any patents, brevets d'invention, licences, concessions, copyrights, trade marks, designs and the like, conferring any exclusive or non-exclusive or limited right to use, or any secret or other information as to any invention, process or development which may seem to the Company capable of being used for any of the purposes of the Company, or the acquisition of which may seem calculated directly or indirectly to benefit the Company, to use, exercise, develop, grant licences in respect of or otherwise turn to account any of the same and with a view to the working and development of the same to carry on any business whatsoever, whether manufacturing or otherwise, which the Company may think calculated directly or indirectly to achieve these objects.
4.5 To form, promote, subsidise and assist companies, syndicates or other bodies of all kinds and to issue on commission or otherwise underwrite, subscribe for and take or guarantee the payment of any dividend or interest on any shares, stocks, debentures or other capital or securities or obligations of any such companies, syndicates or other bodies, and to pay or provide for brokerage commission and underwriting in respect of any such issue.
4.6 To enter into partnerships or into any arrangement for sharing profits, union of interests, co-operation, reciprocal concessions or otherwise with any person or company for the purpose of carrying on business within any of the objects of the Company.
4.7 To carry on any other business which may seem to the Company capable of being conveniently carried on in connection with the above or calculated directly or indirectly to enhance the value of or render profitable any of the Company's property or rights.
4.8 To purchase or otherwise acquire and undertake all or any part of the business, property, liabilities and transactions of any person or company carrying on any business which this Company is authorised to carry on, or possessed of property suitable for any of the purposes of the Company.
4.9 To develop, work, improve, manage, lease, mortgage, charge, pledge, turn to account or otherwise deal with all or any part of the property of the Company; to surrender or accept surrender of any lease or tenancy or rights; and to sell the property, business or undertaking of the Company, or any part thereof, for such consideration as the Company may think fit, and in particular for cash or shares, debentures or securities of any other company.
4.10 To construct, erect, maintain, alter, replace or remove any buildings, works, offices, erections, plant, machinery, tools, or equipment as may seem desirable for any of the businesses or in the interests of the Company; and to manufacture, buy, sell and generally deal in any plant, tools, machinery, goods or things of any description which may be conveniently dealt with in connection with any of the Company's objects.
4.11 To manage and conduct the affairs of any companies, firms and persons carrying on business of any kind whatsoever, and in any part of the world.
4.12 To enter into, carry on and participate in financial transactions and operations of all kinds; and to take any steps which may be considered expedient for carrying into effect such transactions and operations including, without prejudice to the generality of the foregoing, borrowing and lending money and entering into contracts and arrangements of all kinds.
4.13 To borrow or raise money in such manner as the Company shall think fit and in particular by the issue (whether at par or at a premium or discount and for such consideration as the Company may think fit) of bonds, debentures or debenture stock (payable to bearer or otherwise), mortgages or charges, perpetual or otherwise, and, if the Company thinks fit, charged upon all or any of the Company's property (both present and future) and undertaking including its uncalled capital and further, if so thought fit, convertible into any stock or shares of the Company or any other company, and collaterally or further to secure any obligations of the Company by a trust deed or other assurance.
4.14 To guarantee or otherwise support or secure, either with or without the Company receiving any consideration or advantage and whether by personal covenant or by mortgaging or charging all or part of the undertaking, property, assets and rights present and future and uncalled capital of the Company or by both such methods or by any other means whatsoever, the liabilities and obligations of and the payment of any moneys whatsoever (including but not limited to capital, principal, premiums, interest, dividends, costs and expenses on any stocks, shares or securities) by any person, firm or company whatsoever including but not limited to any company which is for the time being the holding company or a subsidiary (both as defined by section 736 of the Companies Act 1985) of the Company or of the Company's holding company or is controlled by the same person or persons as control the Company or is otherwise associated with the Company in its business.
4.15 To grant indemnities of every description and to undertake obligations of every description.
4.16 To make, draw, accept, endorse and negotiate bills of exchange or other negotiable instruments and to receive money on deposit or loan.
4.17 To pay all or any expenses incurred in connection with the formation and promotion and incorporation of the Company and to pay commission to and remunerate any person or company for services rendered in underwriting or placing, or assisting to underwrite or place, any of the shares in the Company's capital or any debentures or other securities of the Company, or in or about the formation or promotion of the Company or the conduct of its business.
4.18 To pay for any property or rights acquired by the Company either in cash or fully or partly paid-up shares with or without preferred or deferred rights in respect of dividend or repayment of capital or otherwise, or by any securities which the Company has power to issue, or partly in one mode and partly in another and generally on such terms as the Company may determine.
4.19 To accept payment for any property or rights sold or otherwise disposed of or dealt with by the Company, either in cash, by instalments or otherwise, or in fully or partly paid-up shares of any company or corporation, with or without deferred or preferred rights in respect of dividend or repayment of capital or otherwise, or in debentures or mortgage debentures or debenture stock, mortgages or other securities of any company or corporation, or partly in one mode and partly in another, and generally on such terms as the Company may determine.
4.20 To make loans or donations to such persons and in such cases (and in the case of loans either of cash or of other assets) as the Company may think directly or indirectly conducive to any of its objects or otherwise expedient.
4.21 To distribute among the members in specie any property of the Company or any proceeds of sale, disposal or realisation of any property of the Company but so that no distribution amounting to a reduction of capital be made except with the sanction (if any) for the time being required by law.
4.22 To subscribe for, purchase or otherwise acquire, take, hold, or sell any shares or stock, bonds, debentures or debenture stock, or other securities or obligations of any company and to invest or lend any of the moneys of the Company not immediately required for its operations in such manner, with or without security, as the Company may think fit.
4.23 To amalgamate with any other company whose objects are or include objects similar to those of the Company and on any terms whatsoever.
4.24 To procure the Company to be registered or recognised in any country or place abroad.
4.25 To obtain any provisional or other order or Act of Parliament of this country or of the legislature of any other State for enabling the Company to carry any of its objects into effect, or for effecting any modifications of the Company's constitution, or for any other purpose which may seem expedient, and to oppose any proceeding or application which may seem calculated, directly or indirectly, to prejudice the Company's interests.
4.26 To appoint any person or persons, firm or firms, company or companies to be the attorney or agent of the Company and to act as agents, managers, secretaries, contractors or in similar capacity.
4.27 To insure the life of any person who may, in the opinion of the Company, be of value to the Company as having or holding for the Company interests, goodwill or influence or other assets and to pay the premiums on such insurance.
4.28 To establish and maintain or procure the establishment and maintenance of contributory or non-contributory pension or superannuation funds for the benefit of the persons referred to below, to grant emoluments, pensions, allowances, donations, gratuities and bonuses to such persons and to make payments for or towards insurance on the life or lives of such persons; to establish, subsidise, subscribe to or otherwise support any institution, association, society, club, trust, other establishment, or fund, the support of which may, in the opinion of the Company, be calculated directly or indirectly to benefit the Company or any such persons, or may be connected with any place where the Company carries on business; to institute and maintain any institution, association, society, club, trust or other establishment or profit-sharing scheme calculated to advance the interests of the Company or such persons; to join, participate in and subsidise or assist any association of employers or employees or any trade association; and to subscribe or guarantee money for charitable or benevolent objects or for any public, general or useful object or for any exhibition; the said persons are any persons who are or were at any time in the employment or service of the Company or of any company being at the relevant time the holding company or a subsidiary (both as defined by section 736 Companies Act 1985) of the Company or of the Company's holding company or is otherwise associated with the Company in its business or who are or were at any time directors or officers of the Company or of such other company as aforesaid, and holding or who held any salaried employment or office in the Company or such other company, and the wives, widows, families or dependants of any such persons.
4.29 To purchase and maintain for any Director or other officer of the Company any insurance policy indemnifying such officer against liability for negligence, default, breach of duty or breach of trust or any other liabilities which may be lawfully insured against.
4.30 To take, make, execute, enter into, commence, carry on, prosecute or defend all steps, contracts, agreements, negotiations, legal and other proceedings, compromises, arrangements and schemes, and to do all other acts, matters and things which shall at any time appear conducive or expedient for the advantage or protection of the Company.
4.31 To do all or any of the above things in Hong Kong and in any other part of the world and either as principals, agents, contractors, trustees, or otherwise, and either alone or in conjunction with others.
4.32 To carry on business as a general commercial company.
4.33 To do all such acts or things as are incidental or conducive to the attainment of the above objects or any of them.
It is hereby declared that:
(a) the word "company" in this Clause, except where used in reference to the Company, shall be deemed to include any partnership or other body of persons, whether incorporated or not incorporated, and wheresoever domiciled, and whether now existing or hereafter to be formed; and
(b) the objects set forth in each sub-clause of this Clause shall not be restrictively construed but the widest interpretation should be given thereto and they shall not, except where the context expressly so requires, be in any way limited or restricted by application of the ejusdem generis rule or by reference to or inference from any other object or objects set forth in such sub-clause or from the terms of any other sub-clause or by the name of the Company; none of such sub-clauses or the object or objects therein specified or the powers thereby conferred shall be deemed subsidiary or ancillary to the objects or powers mentioned in any other sub-clause, but the Company shall have full power to exercise all or any of the objects conferred by and provided in each of the said sub-clauses as if each sub-clause contained the objects of a separate company.
5 The liability of the members is limited.
6(4) The capital of HSBC Holdings plc was by virtue of a Special Resolution and with the sanction of an Order of the High Court of Justice dated 30 June 1999 reduced from HK$20,000,000,000 divided into 2,000,000,000 Ordinary Shares of HK$10 each and (pound)1,625,301,500 divided into 1,500,000,000 Ordinary Shares of 75p each, 500,000,000 Non-cumulative
By a Special Resolution passed on 26 May 2000 the 500,000,000 authorised but unissued non-cumulative preference shares of (pound)1 each were cancelled, and the authorised share capital of the Company was increased by the creation of 10,000,000 non-cumulative preference shares of (pound)0.01 each, 10,000,000 non-cumulative preference shares of US$0.01 each and 10,000,000 non-cumulative preference shares of (euro)0.01 each.
By a Special Resolution passed on 25 May 2001 the authorised share capital
of the Company denominated in United States dollars was increased to
US$7,500,100,000 by the creation of an additional 4,500,000,000 Ordinary
Shares of US$0.50 each.
...........................
Preference Shares of (pound)1 each and 301,500 Non-voting Deferred Shares of (pound)1 each to (pound)500,301,500 divided into 500,000,000 Non-cumulative Preference Shares of (pound)1 each and 301,500 Non-voting Deferred Shares of (pound)1 each. It is further provided by the said Special Resolution that, contingent upon the said reduction of capital taking effect, the authorised share capital of the Company be increased by US$4,203,714,753 by the creation of 2,802,476,502 Ordinary Shares of US$1.50 each. The capital of the Company is accordingly on the registration of this Minute US$4,203,714,753 divided into 2,802,476,502 Ordinary Shares of US$1.50 each and (pound)500,301,500 divided into 500,000,000 Non-cumulative Preference Shares of (pound)1 each and 301,500 Non-voting Deferred Shares of (pound)1 each, of which all the said Non-voting Deferred Shares have been issued and are deemed to be fully paid up and none of the Non-Cumulative Preference Shares or Ordinary Shares has been issued.
We, the several persons whose names, addresses and descriptions are subscribed, are desirous of being formed into a Company in pursuance of this Memorandum of Association, and we respectively agree to take the number of shares in the capital of the Company set opposite our respective names.
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NAMES AND ADDRESSES AND Number of Shares
DESCRIPTION OF SUBSCRIBERS taken by each
Subscriber
----------------------------------------------------
JEAN HERBERT One
156 Strand
London WC2
Company Director
THOMAS ARTHUR HERBERT One
156 Strand
London WC2
Barrister-at-Law
====================================================
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Dated the 18th day of January 1956
WITNESS to the above Signatures
CHRISTINE FREDA HERBERT
7 The Avenue
Muswell Hill
London N10
Company Director
ARTICLES OF ASSOCIATION
CONTENTS
Article No Page
PRELIMINARY
1 Table "A" not to apply .. .. .. .. 14 2 Interpretation .. .. .. .. .. .. 14 3 Registered Office and Head Office .. .. .. .. 18 SHARE CAPITAL 4 Share Capital .. .. .. .. .. .. 18 5 Rights of the Sterling Preference Shares .. .. .. 18 5A Rights of the Dollar Preference Shares .. .. .. 26 5B Rights of the Euro Preference Shares .. .. .. 34 5C Rights of the Non-voting Deferred Shares .. .. 42 6 Allotment .. .. .. .. .. .. 43 7 Redeemable shares .. .. .. .. .. .. 44 8 Power to attach rights .. .. .. .. 44 9 Stock and share warrants to bearer .. .. .. .. 44 10 Commission and brokerage .. .. .. .. .. 45 11 Trusts not to be recognised .. .. .. .. .. 45 |
SHARE CERTIFICATES
12 Right to certificates .. .. .. .. .. 45
13 Replacement certificates .. .. .. .. .. 46
LIEN ON SHARES
14 Lien on shares not fully paid .. .. .. .. 46 15 Enforcement of lien by sale .. .. .. .. .. 47 16 Application of proceeds of sale .. .. .. .. 47 CALLS ON SHARES 17 Calls .. .. .. .. .. .. .. 47 18 Interest on calls .. .. .. .. .. .. 48 19 Rights of member when call unpaid .. .. .. .. 48 20 Sums due on allotment treated as calls .. .. 48 21 Power to differentiate .. .. .. .. 48 22 Payment in advance of calls .. .. .. .. .. 48 23 Delegation of power to make calls .. .. .. .. 49 24 Indemnity against claims in respect of shares .. .. 49 FORFEITURE OF SHARES 25 Notice if call not paid .. .. .. .. 50 26 Forfeiture for non-compliance .. .. .. .. 50 27 Notice after forfeiture .. .. .. .. 50 28 Forfeiture may be annulled .. .. .. .. .. 50 29 Surrender .. .. .. .. .. .. 51 30 Disposal of forfeited shares.. .. .. .. .. 51 31 Effect of forfeiture .. .. .. .. .. .. 51 32 Extinction of claims .. .. .. .. .. .. 51 33 Evidence of forfeiture .. .. .. .. .. 51 TRANSFER OF SHARES 34 Form of transfer .. .. .. .. .. .. 52 35 Right to refuse registration.. .. .. .. .. 52 36 Notice of refusal .. .. .. .. .. .. 53 37 Closing of Registers .. .. .. .. .. .. 53 38 Fees on registration .. .. .. .. .. .. 53 39 Other powers in relation to transfers .. .. .. 53 40 [Deleted] .. .. .. .. .. .. .. 53 TRANSMISSION OF SHARES 41 On death .. .. .. .. .. .. .. 54 42 Election of person entitled by transmission.. .. .. 54 43 Rights on transmission .. .. .. .. 54 |
DESTRUCTION OF DOCUMENTS
44 Destruction of documents .. .. .. .. .. 55
ALTERATION OF SHARE CAPITAL
45 Increase, consolidation, cancellation and sub-division.. .. 55 46 Fractions .. .. .. .. .. .. .. 56 47 Reduction of capital .. .. .. .. .. .. 57 48 Purchase of own shares .. .. .. .. .. 57 VARIATION OF CLASS RIGHTS 49 Sanction to variation.. .. .. .. .. .. 58 50 Class meetings.. .. .. .. .. .. .. 58 51 Deemed variation .. .. .. .. .. .. 59 GENERAL MEETINGS 52 Annual general meetings .. .. .. .. .. 59 53 Extraordinary general meetings .. .. .. .. 59 54 Convening of extraordinary general meetings.. .. .. 59 55 Notice of general meetings .. .. .. .. .. 59 56 Omission to send notice .. .. .. .. .. 60 57 Special business .. .. .. .. .. .. 60 PROCEEDINGS AT GENERAL MEETINGS 58 Quorum .. .. .. .. .. .. .. .. 61 59 If quorum not present.. .. .. .. .. .. 61 60 Chairman .. .. .. .. .. .. .. 61 61 Director may attend and speak .. .. .. 61 62 Power to adjourn .. .. .. .. .. .. 61 63 Notice of adjourned meeting .. .. .. .. 62 64 Business of adjourned meeting .. .. .. .. 62 65 Accommodation of members at meeting .. .. .. .. 62 VOTING 66 Method of voting .. .. .. .. .. .. 63 67 Chairman's declaration conclusive on show of hands.. .. 63 68 Objection to error in voting.. .. .. .. .. 63 69 Amendment to resolutions .. .. .. .. .. 64 70 Procedure on a poll .. .. .. .. .. .. 64 71 Votes of members .. .. .. .. .. .. 64 72 Casting vote .. .. .. .. .. .. 65 73 Restriction on voting rights for unpaid calls etc .. .. 65 74 Voting by proxy .. .. .. .. .. .. 65 75 Form of proxy .. .. .. .. .. .. 65 76 Deposit or receipt of proxy .. .. .. .. .. 66 77 More than one proxy may be appointed .. .. .. 67 78 Board may supply proxy cards .. .. .. .. 67 79 Revocation of proxy .. .. .. .. .. .. 67 80 Corporate representative .. .. .. .. .. 68 81 Failure to disclose interests in shares .. .. .. 68 |
UNTRACED MEMBERS
82 Power of sale .. .. .. .. .. .. 70
83 Application of proceeds of sale.. .. .. .. .. 72
APPOINTMENT, RETIREMENT AND REMOVAL OF DIRECTORS
84 Number of Directors .. .. .. .. .. .. 71 85 Power of Company to appoint Directors .. .. .. 71 86 Power of Board to appoint Directors .. .. .. .. 71 87 Appointment of executive Directors .. .. .. .. 71 88 Eligibility of new Directors.. .. .. .. .. 73 89 Share qualification .. .. .. .. .. .. 73 90 Resolution for appointment .. .. .. .. .. 73 91 Retirement by rotation .. .. .. .. 73 92 Directors subject to retirement by rotation.. .. .. 73 93 Position of retiring Director .. .. .. .. 74 94 Deemed re-appointment.. .. .. .. .. .. 74 95 Retirement on account of age.. .. .. .. .. 74 96 Removal by ordinary resolution .. .. .. .. 74 97 Vacation of office by Director .. .. .. 74 98 Resolution as to vacancy conclusive .. .. .. .. 75 ALTERNATE DIRECTORS 99 Appointments .. .. .. .. .. .. 75 100 Participation in Board meetings .. .. .. .. 75 101 Alternate Director responsible for own acts.. .. .. 76 102 Interests of alternate Director .. .. .. 76 103 Revocation of appointment .. .. .. .. .. 76 DIRECTORS' REMUNERATION, EXPENSES AND PENSIONS 104 Directors' fees .. .. .. .. .. 76 105 Expenses .. .. .. .. .. .. .. 77 106 Additional remuneration .. .. .. .. .. 77 107 Remuneration of executive Directors .. .. .. .. 77 108 Pensions .. .. .. .. .. .. .. 77 POWERS AND DUTIES OF THE BOARD 109 Powers of the Board .. .. .. .. .. 77 110 Powers of Directors being less than minimum number.. .. 78 111 Powers of executive Directors .. .. .. 78 112 Delegation to committees .. .. .. .. .. 78 113 Local management .. .. .. .. .. .. 79 114 Power of attorney .. .. .. .. .. .. 79 115 Associate directors .. .. .. .. .. .. 79 116 Exercise of voting power .. .. .. .. .. 79 117 Provision for employees .. .. .. .. .. 80 118 Registers of members .. .. .. .. .. .. 80 119 Borrowing powers .. .. .. .. .. .. 81 PROCEEDINGS OF DIRECTORS AND COMMITTEES 120 Board meetings.. .. .. .. .. .. .. 81 121 Notice of Board meetings .. .. .. .. .. 81 122 Quorum .. .. .. .. .. .. .. .. 81 123 Chairman of Board .. .. .. .. .. .. 82 124 Voting .. .. .. .. .. .. .. 82 125 Participation by telephone .. .. .. .. .. 82 126 Resolution in writing.. .. .. .. .. .. 82 127 Proceedings of committees .. .. .. .. .. 83 128 Minutes of proceedings .. .. .. .. .. 83 129 Validity of proceedings .. .. .. .. .. 83 DIRECTORS' INTERESTS 130 Director may have interests .. .. .. .. .. 83 131 Disclosure of interests to Board .. .. .. .. 84 132 Interested Director not to vote or count for quorum .. 84 133 Director's interest in own appointment .. .. 85 134 Chairman's ruling conclusive on Director's interest .. 85 135 Directors' resolution conclusive on Chairman's interest.... 86 136 [Deleted] .. .. .. .. .. .. .. 86 137 Definitions .. .. .. .. .. .. .. 86 THE SEAL 138 Application of Seal .. .. .. .. .. .. 86 139 Deed without sealing .. .. .. .. .. .. 87 140 Official seal for use abroad.. .. .. .. .. 87 |
THE SECRETARY
141 The Secretary .. .. .. .. .. .. 87
DIVIDENDS AND OTHER PAYMENTS
142 Declaration of dividends .. .. .. .. .. 87 143 Interim dividends .. .. .. .. .. .. 87 144 Entitlement to dividends .. .. .. .. .. 88 145 Calls or debts may be deducted from dividends .. .. 88 146 Distribution in specie .. .. .. .. .. 88 147 Dividends not to bear interest .. .. .. 88 148 Method of payment .. .. .. .. .. .. 89 149 Uncashed dividends .. .. .. .. .. .. 89 150 Unclaimed dividends .. .. .. .. .. .. 89 151 Payment of scrip dividends .. .. .. .. .. 90 152 Reserves .. .. .. .. .. .. .. 91 153 Capitalisation of reserves .. .. .. .. .. 92 154 Record dates .. .. .. .. .. .. .. 93 ACCOUNTS 155 Accounting records .. .. .. .. .. .. 93 156 Inspection of records.. .. .. .. .. .. 94 157 Accounts to be sent to members .. .. .. .. 94 158 Summary financial statements .. .. .. .. 94 NOTICES 159 Form of Notices .. .. .. .. .. 94 160 Service of notice on members .. .. .. .. 95 161 Notice in case of death, bankruptcy or mental disorder.. .. 96 162 Evidence of service .. .. .. .. .. .. 96 163 Notice binding on transferees .. .. .. 97 164 Notice by advertisement .. .. .. .. .. 97 165 Suspension of postal services .. .. .. .. 97 WINDING UP 166 Division of assets .. .. .. .. .. .. 97 167 Transfer or sale under s.110 Insolvency Act 1986 .. .. 98 INDEMNITY 168 Right to indemnity .. .. .. .. .. .. 98 169 Power to insure .. .. .. .. .. .. 98 |
UNCERTIFICATED SHARES
170 Uncertificated Shares.. .. .. .. .. .. 99
THE COMPANIES ACTS 1985 AND 1989
PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
of
HSBC Holdings plc
(As adopted by Special Resolution passed on 25 March 1991 and amended by Special Resolutions passed on 9 June 1992, which came into effect on 10 July 1992, on 28 May 1993, on 28 May 1999, which came into effect in part on 28 May 1999, in part on 2 July 1999 and in part on 30 September 1999, on 26 May 2000 and on 25 May 2001)
PRELIMINARY
1 Table "A" not to apply
1.1 No regulations for management of a company set out in any schedule to any statute concerning companies or contained in any regulations or instrument made pursuant to a statute shall apply to the Company, but the following shall be the Articles of Association of the Company.
2 Interpretation
2.1 In these Articles, unless the context otherwise requires, the following expressions have the following meanings:
Expression Meaning
Act subject to paragraph 2.3 of this Article, the
Companies Act 1985 and, where the context requires,
every other statute for the time being in force
concerning companies and affecting the Company
(including, without limitation, the Regulations)
address in relation to any electronic communication
includes any number or address used for the
purposes of such communication
these Articles these Articles of Association as altered or varied
from time to time (and "Article" means one of these
Articles)
Auditors the auditors for the time being of the Company or,
in the case of joint auditors, any one of them
Board the board of Directors for the time being of the
Company or the Directors present at a duly convened
meeting of Directors at which a quorum is present
Chairman the chairman (if any) of the Board or where the
context requires, the chairman of a general meeting
of the Company
clear days (in relation to the period of a notice) that
period, excluding the day when the notice is given
or deemed to be given and the day for which it is
given or on which it is to take effect
communication has the meaning given to it in the Electronic
Communications Act 2000
Company HSBC Holdings plc
Depositary a custodian or other person (or a nominee for such
custodian or other person) appointed under
contractual arrangements with the Company or other
arrangements approved by the Board whereby such
custodian or other person or nominee holds or is
interested in shares of the Company or rights or
interests in shares of the Company and issues
securities or other documents of title or otherwise
evidencing the entitlement of the holder thereof to
or to receive such shares, rights or interests,
provided and to the extent that such arrangements
have been approved by the Board for the purpose of
these Articles and shall include, where approved by
the Board, the trustees (acting in their capacity
as such) of any employees' share scheme established
by the Company or any other scheme or arrangements
principally for the benefit of employees of the
Company and/or its subsidiaries which have been
approved by the Board
Director a director for the time being of the Company
dividend a distribution or a bonus
Dollar Preference
Share a non-cumulative preference share of US$0.01
electronic
communication has the meaning given to it in the Electronic
Communications Act 2000 and "electronic
communications" shall be construed accordingly
Euro Preference
Share a non-cumulative preference share of(euro)0.01
execution includes any mode of execution (and "executed"
shall be construed accordingly)
Head Office the office determined by the Board for the time
being under Article 3.1
holder (in relation to any share) the member whose name is
entered in the Register as the holder or, where the
context permits, the members whose names are
entered in the Register as joint holders, of that
share
Hong Kong the register referred to in Article 118
Overseas
Branch Register
The Hong Kong The Stock Exchange of Hong Kong Limited or other
Stock Exchange the principal stock exchange in Hong Kong for the
time being
member a member of the Company
Office the registered office for the time being of the
Company
Ordinary Share an Ordinary Share of the Company
paid up paid up or credited as paid up
recognised person a recognised clearing house or a nominee of a
recognised clearing house or of a recognised
investment exchange who is designated as mentioned
in section 185(4) of the Act
Principal Register the register of members of the Company to be kept
pursuant to section 352 of the Act
Register the Principal Register or the Hong Kong Overseas
Branch Register or any Overseas Branch Register as
is referred to in Article 118, as the case may be
Regulations The Uncertificated Securities Regulations 1995 (SI
1995 No. 3272) including any modifications thereof
and rules made thereunder or any regulations in
substitution therefor made under section 207 of the
Companies Act 1989 for the time being in force
Seal any common seal of the Company or any official seal
kept by the Company by virtue of section 40 of the
Act
Secretary the secretary for the time being of the Company or
any other person appointed to perform any of the
duties of the secretary of the Company including
(subject to the provisions of the Act) a joint,
temporary, assistant or deputy secretary
share a share of the Company
Sterling a non-cumulative preference share of (pound)0.01
Preference Share
The Stock London Stock Exchange plc or other principal stock
Exchange exchange in the United Kingdom for the time being
United Kingdom Great Britain and Northern Ireland
writing or includes printing, typewriting, lithography,
written photography and any other mode or modes of
representing or reproducing words in a legible and
non-transitory form and, if the Board shall in its
absolute discretion determine for any purpose or
purposes under these Articles, subject to such
terms and conditions as the Board may determine,
electronic communications
(pound)(or sterling)
and p or pence pounds sterling and pence
US$ or US dollars United States dollars
(euro)or euro the single currency adopted by those states
participating in European Monetary Union from time
to time
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2.2 Unless the context otherwise requires:
(a) words in the singular include the plural, and vice versa;
(b) words importing the masculine gender include the feminine gender;
(c) a reference to a person includes a body corporate and an unincorporated body of persons.
2.3 A reference to any statute or provision of a statute shall include any orders regulations or other subordinate legislation made under it and shall, unless the context otherwise requires, include any statutory modification or re-enactment of any statute or provision of a statute for the time being in force.
2.4 Save as aforesaid, and unless the context otherwise requires, words or expressions contained in these Articles shall bear the same meaning as in the Act.
2.5 Where for any purpose an ordinary resolution of the Company is required, a special resolution or an extraordinary resolution shall also be effective, and where an extraordinary resolution is required a special resolution shall also be effective.
2.6 The headings are inserted for convenience only and shall not affect the construction of these Articles.
3 Registered Office and Head Office
3.1 The Office shall be at such place in England and Wales as the Board shall from time to time appoint. The Head Office shall be at such place and in such country or territory as the Board shall from time to time appoint.
SHARE CAPITAL
4 Share Capital
4.1 The authorised share capital of the Company is US$7,500,100,000 divided into 15,000,000,000 Ordinary Shares of US$0.50 each and 10,000,000 Dollar Preference Shares of US$0.01 each, (pound)401,500 divided into 10,000,000 Sterling Preference Shares of (pound)0.01 each and 301,500 Non-voting Deferred Shares of (pound)1 each, and (euro)100,000 divided into 10,000,000 Euro Preference Shares of (euro)0.01 each.
4.2 The Ordinary Shares rank pari passu in all respects.
4.3 Fully paid Ordinary Shares confer identical rights in respect of capital, dividends (save where and to the extent that any such share is issued on terms providing that it shall rank for dividend as from a particular date), voting and otherwise notwithstanding that they are denominated in different currencies and shall be treated as if they are one single class of shares.
5 Rights of the Sterling Preference Shares
5.1 The following rights and restrictions shall be attached to the Sterling Preference Shares:
(1) The Sterling Preference Shares shall rank pari passu inter se and
with the Dollar Preference Shares and the Euro Preference Shares
and with all other shares expressed to rank pari passu therewith.
They shall confer the rights and be subject to the limitations set
out in this Article. They shall also confer such further rights
(not being inconsistent with the rights set out in this Article)
and be subject to such further limitations and restrictions as may
be attached by the Board to such shares prior to allotment.
Whenever the Board has power under this Article to determine any
of the rights attached to any of the Sterling Preference Shares,
the rights so determined need not be the same as those attached to
the Sterling Preference Shares which have then been allotted or
issued. The Sterling Preference Shares may be issued in one or
more separate series and each series shall be identified in such
manner as the Board may determine without any such determination
or identification requiring any alteration to these Articles.
(2) Each Sterling Preference Share shall confer the following rights as to dividend and capital:
Income
(a) the right (subject to the provisions of paragraph (4) of this Article, if applicable) in priority to the payment of any dividend to the holders of Ordinary Shares and any other class of shares of the Company in issue (other than (i) the Dollar Preference Shares, the Euro Preference Shares and any other shares expressed to rank pari passu therewith as regards income and (ii) any shares which by their terms rank in priority to the Sterling Preference Shares as regards income) to a non-cumulative preferential dividend in sterling payable at such rate (whether fixed, variable or floating or to be determined by a specified procedure, mechanism or formula) on such dates (each a "Dividend Payment Date") and on such other terms and conditions as may be determined by the Board prior to allotment thereof;
Capital
(b) the right in a winding up of the Company (but not, unless otherwise provided by the terms of issue of such share, upon a redemption, reduction or purchase by the Company of any of its share capital) to receive in sterling out of the assets of the Company available for distribution to its members in priority to any payment to the holders of the Ordinary Shares and any other class of shares of the Company in issue (other than (i) the Dollar Preference Shares, the Euro Preference Shares and any other shares expressed to rank pari passu therewith as regards repayment of capital and (ii) any shares which by their terms rank in priority to the Sterling Preference Shares as regards repayment of capital):
(i) a sum equal to:
(A) the amount of any dividend which is due for payment after the date of commencement of the winding up but which is payable in respect of a period ending on or before such date; and
(B) if the date of commencement of the winding up falls before the last day of a period in respect of which a dividend would have been payable and which began before such date, any further amount of dividend which would have been payable had the day before such date been the last day of that period,
but only to the extent that any such amount or further amount was, or would have been, payable as a dividend in accordance with or pursuant to this Article; and
(ii) subject thereto, a sum equal to the amount paid up or credited as paid up on such share together with such premium (if any) as may be determined by the Board (or by a procedure, mechanism or formula determined by the Board) prior to allotment thereof (and so that the Board may determine that such premium is payable only in specified circumstances).
Limitations
(3) No Sterling Preference Share shall:
(a) confer any right to participate in the profits or assets of
the Company other than that set out in sub-paragraphs
(2)(a) and (b) of this Article;
(b) subject to the Act, confer any right to participate in any offer or invitation by way of rights or otherwise to subscribe for additional shares or securities in the Company;
(c) confer any right of conversion; or
(d) confer any right to participate in any issue of bonus shares or shares issued by way of capitalisation of reserves.
Further provisions as to income
(4) All or any of the following provisions shall apply in relation to any Sterling Preference Shares of any series ("relevant Sterling Preference Shares") if so determined by the Board prior to allotment thereof:
(a) (i) if, on any Dividend Payment Date ("the relevant date") on which a dividend ("the relevant dividend") would otherwise fall to be paid on any relevant Sterling Preference Shares, the profits of the Company available for distribution are, in the opinion of the Board, insufficient to enable payment in full to be made of the relevant dividend, then the Board shall (after payment in full, or the setting aside of a sum required for payment in full, of all dividends payable on or before the relevant date on any shares in the capital of the Company in priority to the relevant Sterling Preference Shares) apply such profits, if any, in paying dividends to the holders of participating shares (as defined below) pro rata to the amounts of dividend on participating shares accrued and payable on or before the relevant date. For the purposes of this paragraph, the expression "participating shares" shall mean the relevant Sterling Preference Shares and any other shares in the capital of the Company which rank pari passu as to participation in profits with the relevant Sterling Preference Shares and on which either (1) a dividend is payable on the relevant date or (2) arrears of cumulative dividend are unpaid at the relevant date;
(ii) if it shall subsequently appear that any such dividend which has been paid in whole or in part should not, in accordance with the provisions of this sub-paragraph, have been so paid, then provided the Board shall have acted in good faith, they shall not incur any liability for any loss which any shareholder may suffer in consequence of such payment having been made;
(b) if the payment of any dividend on any relevant Sterling Preference Shares would breach or cause a breach of the capital adequacy requirements of the Financial Services Authority (or any successor organisation responsible for the supervision of banks in the United Kingdom) from time to time applicable to the Company and/or any of its subsidiaries, then none of such dividend shall be payable;
(c) if a dividend or any part thereof on any relevant Sterling Preference Shares is not paid for the reasons specified in sub-paragraphs (a) or (b) above, the holders of such shares shall have no claim in respect of such non-payment;
(d) if any dividend on any relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, the Company may not thereafter purchase or redeem any other share capital of the Company ranking pari passu with or after the relevant Sterling Preference Shares (and may not contribute any moneys to a sinking fund for any such purchase or redemption) until such time as dividends on the relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or an amount equivalent thereto shall have been paid or set aside to provide for such payment in full);
(e) if any dividend on any relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, no dividend or other distribution may thereafter be declared or paid on any other share capital of the Company ranking as to dividend after the relevant Sterling Preference Shares until such time as dividends on the relevant Sterling Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or a sum shall have been paid or set aside to provide for such payment in full).
Redemption
(5) (a) Unless otherwise determined by the Board in relation to
Sterling Preference Shares of any series prior to allotment
thereof, the Sterling Preference Shares shall, subject to
the provisions of the Act, be redeemable at the option of
the Company.
(b) In the case of any series of Sterling Preference Shares
which are to be so redeemable:
(i) the Company may, subject to the provisions of the
Act and sub-paragraph (ii) below, redeem on any
Redemption Date (as hereinafter defined) all, but
not merely some, of the Sterling Preference Shares
of such series by giving to the holders of the
Sterling Preference Shares to be redeemed not less
than 30 days' nor more than 60 days' prior notice in
writing (a "Notice of Redemption") of the relevant
Redemption Date. "Redemption Date" means, in
relation to Sterling Preference Shares of a
particular series, any date mentioned in any one of
(A), (B) or (C) below, as determined by the Board
prior to the first allotment of Sterling Preference
Shares of that series:
(A) any date which falls on or after the First
Redemption Date (as hereinafter defined); or
(B) the First Redemption Date or any subsequent
Dividend Payment Date for Sterling Preference
Shares of that series; or
(C) the First Redemption Date or any successive
fifth anniversary thereof.
"First Redemption Date" means:
(D) in relation to any Sterling Preference Shares
designated as "Series 1", 30 June 2015;
(E) in relation to any other Sterling Preference
Shares of a particular series, one day after
such one of the following dates as shall be
determined by the Board prior to the first
allotment of Sterling Preference Shares of
that series:
(1) five years after the Relevant Date (as
hereinafter defined);
(2) ten years after the Relevant Date;
(3) fifteen years after the Relevant Date;
(4) twenty years after the Relevant Date;
(5) thirty years after the Relevant Date.
"Relevant Date" means, in relation to Sterling
Preference Shares of a particular series, such one
of the following dates as shall be determined by the
Board prior to the first allotment of Sterling
Preference Shares of that series:
(F) the first date of allotment of Sterling
Preference Shares of that series; or
(G) the first Dividend Payment Date for Sterling
Preference Shares of that series;
(ii) if either of the restrictions in sub-paragraphs
(4)(a)(i) and (4)(a)(ii) of this Article applies to
any dividend otherwise payable on any Redemption
Date on the Sterling Preference Shares of that
series, the Company may not redeem such Sterling
Preference Shares on that Redemption Date;
(iii) there shall be paid on each Sterling Preference
Share so redeemed, in sterling, the aggregate of the
nominal amount thereof and any premium credited as
paid up on such share together with any dividend
payable on the Redemption Date;
(iv) any Notice of Redemption given under sub-paragraph
(b)(i) above shall specify the applicable Redemption
Date, the particular Sterling Preference Shares to
be redeemed and the redemption price, and shall
state the place or places at which documents of
title or such other evidence as may be accepted by
the Board in respect of such Sterling Preference
Shares are to be presented and surrendered for
redemption and payment of the redemption moneys is
to be effected. Upon such Redemption Date, the
Company shall redeem the particular Sterling
Preference Shares to be redeemed on that date
subject to the provisions of this paragraph and of
the Act. No defect in the Notice of Redemption or in
the giving thereof shall affect the validity of the
redemption proceedings;
(v) payments in respect of the amount due on redemption
of a Sterling Preference Share shall be made by
sterling cheque drawn on a bank in London or upon
the request of the holder or joint holders not later
than the date specified for the purpose in the
Notice of Redemption by transfer to a sterling
account maintained by the payee with a bank in
London or by such other method as the Board may
determine. Such payment will be made against
presentation and surrender of the relative
certificate at the place or one of the places
specified in the Notice of Redemption or against
such other evidence as may be accepted by the Board.
All payments in respect of redemption monies will in
all respects be subject to any applicable fiscal or
other laws;
(vi) as from the relevant Redemption Date the dividend on
the Sterling Preference Shares due for redemption
shall cease to accrue except on any such Sterling
Preference Shares in respect of which, upon due
surrender of the certificate or other evidence
aforesaid, payment of the redemption moneys due on
such Redemption Date shall be improperly withheld or
refused, in which case such dividend, at the rate
then applicable, shall be deemed to have continued
and shall accordingly continue to accrue from the
relevant Redemption Date to the date of payment of
such redemption moneys. Such Sterling Preference
Shares shall not be treated as having been redeemed
until the redemption moneys in question together
with the accrued dividend thereon shall have been
paid;
(vii) if the due date for the payment of the redemption
moneys on any Sterling Preference Share is not a day
(other than a Saturday or Sunday) on which
commercial banks and foreign exchange markets settle
payments in sterling and are open for general
business in London (a "Sterling Business Day"), then
payment of such moneys will be made on the next
succeeding day which is a Sterling Business Day and
without any interest or other payment in respect of
such delay; and
(viii) the receipt of the holder for the time being of any
Sterling Preference Shares (or, in the case of joint
registered holders, the receipt of any one of them)
for the moneys payable on redemption thereof shall
constitute an absolute discharge to the Company in
respect thereof.
(c) Upon the redemption or purchase of any Sterling Preference
Shares the Board shall have power without any further
resolution or consent to convert the authorised but
unissued Sterling Preference Shares existing as a result of
such redemption or purchase into shares of any other class
of share capital into which the authorised share capital of
the Company is or may be divided of the same nominal amount
in sterling as the Sterling Preference Shares or into
unclassified shares of the same nominal amount in sterling
as the Sterling Preference Shares.
(d) Any Sterling Preference Shares redeemed pursuant to this
paragraph (5) shall be cancelled on redemption.
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Purchase
(6) Subject to the provisions of the Act, the Company may at any time purchase any Sterling Preference Shares (i) in the market, (ii) by tender (available alike to all holders of the same class of Sterling Preference Shares) or (iii) by private treaty, in each case upon such terms as the Board shall determine.
Consolidation and division
(7) Pursuant to the authority given by the passing of the resolution adopting this Article the Board may consolidate and divide and/or sub-divide any Sterling Preference Shares into shares of a larger or smaller amount.
Attendance and voting at general meetings
(8) (a) Save as provided by its terms of issue, no Sterling
Preference Share shall carry any right to attend or vote at
general meetings of the Company.
(b) If so determined by the Board prior to allotment thereof,
holders of Sterling Preference Shares of any series shall
have the right to attend and vote at general meetings of
the Company in the following circumstances:
(i) if any dividend on any Sterling Preference Shares of
that series in respect of such period as the Board
shall determine prior to allotment thereof is not
paid in full, the right to attend and vote at
general meetings of the Company until such time as
dividends on those Sterling Preference Shares in
respect of such period as the Board shall determine
prior to allotment thereof shall have been paid in
full (or a sum shall have been paid or set aside to
provide for such payment in full);
(ii) in such other circumstances, and upon and subject to
such terms, as the Board may determine prior to
allotment of such Sterling Preference Shares.
(c) Whenever holders of Sterling Preference Shares are entitled
to vote on a resolution at a general meeting, on a show of
hands every such holder who is present in person shall have
one vote and on a poll every such holder who is present in
person or by proxy shall have one vote per Sterling
Preference Share held by him or such number of votes per
share as the Board shall determine prior to allotment of
such share.
(d) Holders of Sterling Preference Shares having a registered
address or address for correspondence within the United
Kingdom shall have the right to have sent to them (at the
same time as the same are sent to the holders of Ordinary
Shares) all notices of general meetings of the Company and
a copy of every circular or other like document sent out by
the Company to the holders of Ordinary Shares.
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Further preference shares
(9) The special rights attached to any Sterling Preference Shares of any series allotted or in issue shall not (unless otherwise provided by their terms of issue) be deemed to be varied by the creation or issue of any other preference shares or further shares in any currency ("new shares") ranking as regards participation in the profits and assets of the Company pari passu with such Sterling Preference Shares and so that any new shares ranking pari passu with such Sterling Preference Shares may either carry rights and restrictions identical in all respects with such Sterling Preference Shares or any of them or rights and restrictions differing therefrom in any respect including but without prejudice to the generality of the foregoing in that:
(a) the rate of and/or basis of calculation of dividend may differ and the dividend may be cumulative or non-cumulative;
(b) the new shares or any series thereof may rank for dividend as from such date as may be provided by the terms of issue thereof and the dates of payment of dividend may differ;
(c) a premium may be payable on return of capital or there may be no such premium;
(d) the new shares may be redeemable at the option of the holder or of the Company, or may be non-redeemable, and if redeemable at the option of the Company they may be redeemable at different dates and on different terms from those applying to the Sterling Preference Shares; and
(e) the new shares may be convertible into Ordinary Shares or any other class of shares ranking as regards participation in the profits and assets of the Company pari passu with or after such Sterling Preference Shares in each case on such terms and conditions as may be prescribed by the terms of issue thereof.
Variation of class rights
(10)(a) Subject to the provisions of the Act:
(i) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to the Sterling Preference Shares may from time to time (whether or not the Company is being wound up) be varied or abrogated with the consent in writing of the holders of not less than three-quarters in nominal value of the Sterling Preference Shares of all series in issue or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of the Sterling Preference Shares, voting as a single class without regard for series; and
(ii) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to Sterling Preference Shares of any series may be varied or abrogated so as to affect adversely such rights on a basis different from any other series of Sterling Preference Shares with the consent in writing of the holders of not less than three-quarters in nominal value of the Sterling Preference Shares of such series or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of Sterling Preference Shares of such series.
All the provisions of these Articles as to general meetings of the Company shall mutatis mutandis apply to any such separate general meeting, but so that the necessary quorum shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class, that every holder of shares of the class shall be entitled on a poll to one vote for every share of the class held by him, that any holder of shares of the class present in person or by proxy may demand a poll and that at any adjourned meeting of the holders one holder present in person or by proxy (whatever the number of shares held by him) shall be a quorum.
(b) Unless otherwise provided by its terms of issue, the rights
attached to any Sterling Preference Share shall not be deemed to
be varied or abrogated by a reduction of any share capital or
purchase by the Company or redemption of any share capital in each
case ranking as regards participation in the profits and assets of
the Company in priority to or pari passu with or after such
Sterling Preference Share.
5A Rights of the Dollar Preference Shares
5A.1 The following rights and restrictions shall be attached to the Dollar
Preference Shares:
(1) The Dollar Preference Shares shall rank pari passu inter se and
with the Sterling Preference Shares and the Euro Preference Shares
and with all other shares expressed to rank pari passu therewith.
They shall confer the rights and be subject to the limitations set
out in this Article. They shall also confer such further rights
(not being inconsistent with the rights set out in this Article)
and be subject to such further limitations and restrictions as may
be attached by the Board to such shares prior to allotment.
Whenever the Board has power under this Article to determine any
of the rights attached to any of the Dollar Preference Shares, the
rights so determined need not be the same as those attached to the
Dollar Preference Shares which have then been allotted or issued.
The Dollar Preference Shares may be issued in one or more separate
series and each series shall be identified in such manner as the
Board may determine without any such determination or
identification requiring any alteration to these Articles.
(2) Each Dollar Preference Share shall confer the following rights as
to dividend and capital:
Income
(a) the right (subject to the provisions of paragraph (4) of this
Article, if applicable) in priority to the payment of any dividend
to the holders of Ordinary Shares and any other class of shares of
the Company in issue (other than (i) the Sterling Preference
Shares, the Euro Preference Shares and any other shares expressed
to rank pari passu therewith as regards income and (ii) any shares
which by their terms rank in priority to the Dollar Preference
Shares as regards income) to a non-cumulative preferential
dividend in US dollars payable at such rate (whether fixed,
variable or floating or to be determined by a specified procedure,
mechanism or formula) on such dates (each a "Dividend Payment
Date") and on such other terms and conditions as may be determined
by the Board prior to allotment thereof;
Capital
(b) the right in a winding up of the Company (but not, unless
otherwise provided by the terms of issue of such share, upon a
redemption, reduction or purchase by the Company of any of its
share capital) to receive in US dollars out of the assets of the
Company available for distribution to its members in priority to
any payment to the holders of the Ordinary Shares and any other
class of shares of the Company in issue (other than (i) the
Sterling Preference Shares, the Euro Preference Shares and any
other shares expressed to rank pari passu therewith as regards
repayment of capital and (ii) any shares which by their terms rank
in priority to the Dollar Preference Shares as regards repayment
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of capital):
(i) a sum equal to:
(A) the amount of any dividend which is due for payment after the date of commencement of the winding up but which is payable in respect of a period ending on or before such date; and
(B) if the date of commencement of the winding up falls before the last day of a period in respect of which a dividend would have been payable and which began before such date, any further amount of dividend which would have been payable had the day before such date been the last day of that period
but only to the extent that any such amount or further amount was, or would have been, payable as a dividend in accordance with or pursuant to this Article; and
(ii) subject thereto, a sum equal to the amount paid up or credited as paid up on such share together with such premium (if any) as may be determined by the Board (or by a procedure, mechanism or formula determined by the Board) prior to allotment thereof (and so that the Board may determine that such premium is payable only in specified circumstances).
Limitations
(3) No Dollar Preference Share shall;
(a) confer any right to participate in the profits or assets of
the Company other than that set out in sub-paragraphs
(2)(a) and (b) of this Article;
(b) subject to the Act, confer any right to participate in any offer or invitation by way of rights or otherwise to subscribe for additional shares or securities in the Company;
(c) confer any right of conversion; or
(d) confer any right to participate in any issue of bonus shares or shares issued by way of capitalisation of reserves.
Further provisions as to income
(4) All or any of the following provisions shall apply in relation to any Dollar Preference Shares of any series ("relevant Dollar Preference Shares") if so determined by the Board prior to allotment thereof:
(a) (i) if, on any Dividend Payment Date ("the relevant date") on which a dividend ("the relevant dividend") would otherwise fall to be paid on any relevant Dollar Preference Shares, the profits of the Company available for distribution are, in the opinion of the Board, insufficient to enable payment in full to be made of the relevant dividend, then the Board shall (after payment in full, or the setting aside of a sum required for payment in full, of all dividends payable on or before the relevant date on any shares in the capital of the Company in priority to the relevant Dollar Preference Shares) apply such profits, if any, in paying dividends to the holders of participating shares (as defined below) pro rata to the amounts of dividend on participating shares accrued and payable on or before the relevant date. For the purposes of this paragraph, the expression "participating shares" shall mean the relevant Dollar Preference Shares and any other shares in the capital of the Company which rank pari passu as to participation in profits with the relevant Dollar Preference Shares and on which either (1) a dividend is payable on the relevant date or (2) arrears of cumulative dividend are unpaid at the relevant date;
(ii) if it shall subsequently appear that any such dividend which has been paid in whole or in part should not, in accordance with the provisions of this sub-paragraph, have been so paid, then provided the Board shall have acted in good faith, they shall not incur any liability for any loss which any shareholder may suffer in consequence of such payment having been made;
(b) if the payment of any dividend on any relevant Dollar Preference Shares would breach or cause a breach of the capital adequacy requirements of the Financial Services Authority (or any successor organisation responsible for the supervision of banks in the United Kingdom) from time to time applicable to the Company and/or any of its subsidiaries, then none of such dividend shall be payable;
(c) if a dividend or any part thereof on any relevant Dollar Preference Shares is not paid for the reasons specified in sub-paragraphs (a) or (b) above, the holders of such shares shall have no claim in respect of such non-payment;
(d) if any dividend on any relevant Dollar Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, the Company may not thereafter purchase or redeem any other share capital of the Company ranking pari passu with or after the relevant Dollar Preference Shares (and may not contribute any moneys to a sinking fund for any such purchase or redemption) until such time as dividends on the relevant Dollar Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or an amount equivalent thereto shall have been paid or set aside to provide for such payment in full);
(e) if any dividend on any relevant Dollar Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, no dividend or other distribution may thereafter be declared or paid on any other share capital of the Company ranking as to dividend after the relevant Dollar Preference Shares until such time as dividends on the relevant Dollar Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or a sum shall have been paid or set aside to provide for such payment in full).
Redemption
(5) (a) Unless otherwise determined by the Board in relation to
Dollar Preference Shares of any series prior to allotment
thereof, the Dollar Preference Shares shall, subject to the
provisions of the Act, be redeemable at the option of the
Company.
(b) In the case of any series of Dollar Preference Shares which
are to be so redeemable:
(i) the Company may, subject to the provisions of the
Act, and sub-paragraph (ii) below, redeem on any
Redemption Date (as hereinafter defined) all, but
not merely some, of the Dollar Preference Shares of
such series by giving to the holders of the Dollar
Preference Shares to be redeemed not less than 30
days' nor more than 60 days' prior notice in writing
(a "Notice of Redemption") of the relevant
Redemption Date. "Redemption Date" means, in
relation to Dollar Preference Shares of a particular
series, any date mentioned in any one of (A), (B) or
(C) below, as determined by the Board prior to the
first allotment of Dollar Preference Shares of that
series:
(A) any date which falls on or after the First
Redemption Date (as hereinafter defined); or
(B) the First Redemption Date or any subsequent
Dividend Payment Date for Dollar Preference
Shares of that series; or
(C) the First Redemption Date or any successive
fifth anniversary thereof.
"First Redemption Date" means:
(D) in relation to any relevant Dollar Preference
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Shares designated as:
(1) "Series 1", 30 June 2010;
(2) "Series 2", 30 June 2030;
(E) in relation to any other Dollar Preference Shares of a particular series, one day after such one of the following dates as shall be determined by the Board prior to the first allotment of Dollar Preference Shares of that series:
(1) five years after the Relevant Date (as hereinafter defined);
(2) ten years after the Relevant Date;
(3) fifteen years after the Relevant Date;
(4) twenty years after the Relevant Date;
(5) thirty years after the Relevant Date.
"Relevant Date" means, in relation to Dollar Preference Shares of a particular series, such one of the following dates as shall be determined by the Board prior to the first allotment of Dollar Preference Shares of that series:
(F) the first date of allotment of Dollar Preference Shares of that series; or
(G) the first Dividend Payment Date for Dollar Preference Shares of that series;
(ii) if either of the restrictions in sub-paragraphs
(4)(a)(i) and (4)(a)(ii) of this Article applies to
any dividend otherwise payable on any Redemption
Date on the Dollar Preference Shares of that series,
the Company may not redeem such Dollar Preference
Shares on that Redemption Date;
(iii) there shall be paid on each Dollar Preference Share so redeemed, in US dollars, the aggregate of the nominal amount thereof and any premium credited as paid up on such share together with any dividend payable on the Redemption Date;
(iv) any Notice of Redemption given under sub-paragraph
(b)(i) above shall specify the applicable Redemption
Date, the particular Dollar Preference Shares to be
redeemed and the redemption price, and shall state
the place or places at which documents of title or
such other evidence as may be accepted by the Board
in respect of such Dollar Preference Shares are to
be presented and surrendered for redemption and
payment of the redemption moneys is to be effected.
Upon such Redemption Date, the Company shall redeem
the particular Dollar Preference Shares to be
redeemed on that date subject to the provisions of
this paragraph and of the Act. No defect in the
Notice of Redemption or in the giving thereof shall
affect the validity of the redemption proceedings;
(v) payments in respect of the amount due on redemption of a Dollar Preference Share shall be made by US Dollar cheque drawn on a bank in New York City or upon the request of the holder or joint holders not later than the date specified for the purpose in the Notice of Redemption by transfer to a US dollar account maintained by the payee with a bank in New York City or by such other method as the Board may determine. Such payment will be made against presentation and surrender of the relative certificate at the place or one of the places specified in the Notice of Redemption or against such other evidence as may be accepted by the Board.
All payments in respect of redemption moneys will in all respects be subject to any applicable fiscal or other laws;
(vi) as from the relevant Redemption Date the dividend on the Dollar Preference Shares due for redemption shall cease to accrue except on any such Dollar Preference Shares in respect of which, upon due surrender of the certificate or other evidence aforesaid, payment of the redemption moneys due on such Redemption Date shall be improperly withheld or refused, in which case such dividend, at the rate then applicable, shall be deemed to have continued and shall accordingly continue to accrue from the relevant Redemption Date to the date of payment of such redemption moneys. Such Dollar Preference Shares shall not be treated as having been redeemed until the redemption moneys in question together with the accrued dividend thereon shall have been paid;
(vii) if the due date for the payment of the redemption moneys on any Dollar Preference Share is not a day (other than a Saturday or Sunday) on which commercial banks and foreign exchange markets settle payments in US dollars and are open for general business in London and New York City (a "Dollar Business Day"), then payment of such moneys will be made on the next succeeding day which is a Dollar Business Day and without any interest or other payment in respect of such delay; and
(viii) the receipt of the holder for the time being of any Dollar Preference Shares (or, in the case of joint registered holders, the receipt of any one of them) for the moneys payable on redemption thereof shall constitute an absolute discharge to the Company in respect thereof.
(c) Upon the redemption or purchase of any Dollar Preference Shares the Board shall have power without any further resolution or consent to convert the authorised but unissued Dollar Preference Shares existing as a result of such redemption or purchase into shares of any other class of share capital into which the authorised share capital of the Company is or may be divided of the same nominal amount in US dollars as the Dollar Preference Shares or into unclassified shares of the same nominal amount in US dollars as the Dollar Preference Shares.
(d) Any Dollar Preference Shares redeemed pursuant to this paragraph (5) shall be cancelled on redemption.
Purchase
(6) Subject to the provisions of the Act, the Company may at any time purchase any Dollar Preference Shares (i) in the market, (ii) by tender (available alike to all holders of the same class of Dollar Preference Shares) or (iii) by private treaty, in each case upon such terms as the Board shall determine.
Consolidation and division
(7) Pursuant to the authority given by the passing of the resolution adopting this Article the Board may consolidate and divide and/or sub-divide any Dollar Preference Shares into shares of a larger or smaller amount.
Attendance and voting at general meetings
(8) (a) Save as provided by its terms of issue, no Dollar
Preference Share shall carry any right to attend or vote at
general meetings of the Company.
(b) If so determined by the Board prior to allotment thereof,
holders of Dollar Preference Shares of any series shall
have the right to attend and vote at general meetings of
the Company in the following circumstances:
(i) if any dividend on any Dollar Preference Shares of
that series in respect of such period as the Board
shall determine prior to allotment thereof is not
paid in full, the right to attend and vote at
general meetings of the Company until such time as
dividends on those Dollar Preference Shares in
respect of such period as the Board shall determine
prior to allotment thereof shall have been paid in
full (or a sum shall have been paid or set aside to
provide for such payment in full);
(ii) in such other circumstances, and upon and subject to
such terms, as the Board may determine prior to
allotment of such Dollar Preference Shares.
(c) Whenever holders of Dollar Preference Shares are entitled
to vote on a resolution at a general meeting, on a show of
hands every such holder who is present in person shall have
one vote and on a poll every such holder who is present in
person or by proxy shall have one vote per Dollar
Preference Share held by him or such number of votes per
share as the Board shall determine prior to allotment of
such share.
(d) Holders of Dollar Preference Shares having a registered
address or address for correspondence within the United
Kingdom shall have the right to have sent to them (at the
same time as the same are sent to the holders of Ordinary
Shares) all notices of general meetings of the Company and
a copy of every circular or other like document sent out by
the Company to the holders of Ordinary Shares.
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Further preference shares
(9) The special rights attached to any Dollar Preference Shares of any series allotted or in issue shall not (unless otherwise provided by their terms of issue) be deemed to be varied by the creation or issue of any other preference shares or further shares in any currency ("new shares") ranking as regards participation in the profits and assets of the Company pari passu with such Dollar Preference Shares and so that any new shares ranking pari passu with such Dollar Preference Shares may either carry rights and restrictions identical in all respects with such Dollar Preference Shares or any of them or rights and restrictions differing therefrom in any respect including but without prejudice to the generality of the foregoing in that:
(a) the rate of and/or basis of calculation of dividend may differ and the dividend may be cumulative or non-cumulative;
(b) the new shares or any series thereof may rank for dividend as from such date as may be provided by the terms of issue thereof and the dates of payment of dividend may differ;
(c) a premium may be payable on return of capital or there may be no such premium;
(d) the new shares may be redeemable at the option of the holder or of the Company, or may be non-redeemable, and if redeemable at the option of the Company they may be redeemable at different dates and on different terms from those applying to the Dollar Preference Shares; and
(e) the new shares may be convertible into Ordinary Shares or any other class of shares ranking as regards participation in the profits and assets of the Company pari passu with or after such Dollar Preference Shares in each case on such terms and conditions as may be prescribed by the terms of issue thereof.
Variation of class rights
(10) (a) Subject to the provisions of the Act:
(i) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to the Dollar Preference Shares may from time to time (whether or not the Company is being wound up) be varied or abrogated with the consent in writing of the holders of not less than three-quarters in nominal value of the Dollar Preference Shares of all series in issue or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of the Dollar Preference Shares, voting as a single class without regard for series; and
(ii) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to Dollar Preference Shares of any series may be varied or abrogated so as to affect adversely such rights on a basis different from any other series of Dollar Preference Shares with the consent in writing of the holders of not less than three-quarters in nominal value of the Dollar Preference Shares of such series or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of Dollar Preference Shares of such series.
All the provisions of these Articles as to general meetings of the Company shall mutatis mutandis apply to any such separate general meeting, but so that the necessary quorum shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class, that every holder of shares of the class shall be entitled on a poll to one vote for every share of the class held by him, that any holder of shares of the class present in person or by proxy may demand a poll and that at any adjourned meeting of the holders one holder present in person or by proxy (whatever the number of shares held by him) shall be a quorum.
(b) Unless otherwise provided by its terms of issue, the rights
attached to any Dollar Preference Share shall not be deemed
to be varied or abrogated by a reduction of any share
capital or purchase by the Company or redemption of any
share capital in each case ranking as regards participation
in the profits and assets of the Company in priority to or
pari passu with or after such Dollar Preference Share.
5B Rights of the Euro Preference Shares
5B.1 The following rights and restrictions shall be attached to the Euro
Preference Shares:
(1) The Euro Preference Shares shall rank pari passu inter se and with
the Dollar Preference Shares and the Sterling Preference Shares
and with all other shares expressed to rank pari passu therewith.
They shall confer the rights and be subject to the limitations set
out in this Article. They shall also confer such further rights
(not being inconsistent with the rights set out in this Article)
and be subject to such further limitations and restrictions as may
be attached by the Board to such shares prior to allotment.
Whenever the Board has power under this Article to determine any
of the rights attached to any of the Euro Preference Shares, the
rights so determined need not be the same as those attached to the
Euro Preference Shares which have then been allotted or issued.
The Euro Preference Shares may be issued in one or more separate
series and each series shall be identified in such manner as the
Board may determine without any such determination or
identification requiring any alteration to these Articles.
(2) Each Euro Preference Share shall confer the following rights as to
dividend and capital:
Income
(a) the right (subject to the provisions of paragraph (4) of this
Article, if applicable) in priority to the payment of any dividend
to the holders of Ordinary Shares and any other class of shares of
the Company in issue (other than (i) the Dollar Preference Shares,
the Sterling Preference Shares and any other shares expressed to
rank pari passu therewith as regards income and (ii) any shares
which by their terms rank in priority to the Euro Preference
Shares as regards income) to a non-cumulative preferential
dividend in euro payable at such rate (whether fixed, variable or
floating or to be determined by a specified procedure, mechanism
or formula) on such dates (each a "Dividend Payment Date") and on
such other terms and conditions as may be determined by the Board
prior to allotment thereof;
Capital
(b) the right in a winding up of the Company (but not, unless
otherwise provided by the terms of issue of such share, upon a
redemption, reduction or purchase by the Company of any of its
share capital) to receive in euro out of the assets of the Company
available for distribution to its members in priority to any
payment to the holders of the Ordinary Shares and any other class
of shares of the Company in issue (other than (i) the Dollar
Preference Shares, the Sterling Preference Shares and any other
shares expressed to rank pari passu therewith as regards repayment
of capital and (ii) any shares which by their terms rank in
priority to the Euro Preference Shares as regards repayment of
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capital):
(i) a sum equal to:
(A) the amount of any dividend which is due for payment after the date of commencement of the winding up but which is payable in respect of a period ending on or before such date; and
(B) if the date of commencement of the winding up falls before the last day of a period in respect of which a dividend would have been payable and which began before such date, any further amount of dividend which would have been payable had the day before such date been the last day of that period
but only to the extent that any such amount or further amount was, or would have been, payable as a dividend in accordance with or pursuant to this Article; and
(ii) subject thereto, a sum equal to the amount paid up or credited as paid up on such share together with such premium (if any) as may be determined by the Board (or by a procedure, mechanism or formula determined by the Board) prior to allotment thereof (and so that the Board may determine that such premium is payable only in specified circumstances).
Limitations
(3) No Euro Preference Share shall;
(a) confer any right to participate in the profits or assets of
the Company other than that set out in sub-paragraphs
(2)(a) and (b) of this Article;
(b) subject to the Act, confer any right to participate in any offer or invitation by way of rights or otherwise to subscribe for additional shares or securities in the Company;
(c) confer any right of conversion; or
(d) confer any right to participate in any issue of bonus shares or shares issued by way of capitalisation of reserves.
Further provisions as to income
(4) All or any of the following provisions shall apply in relation to any Euro Preference Shares of any series ("relevant Euro Preference Shares") if so determined by the Board prior to allotment thereof;
(a) (i) if, on any Dividend Payment Date ("the relevant date") on which a dividend ("the relevant dividend") would otherwise fall to be paid on any relevant Euro Preference Shares, the profits of the Company available for distribution are, in the opinion of the Board, insufficient to enable payment in full to be made of the relevant dividend, then the Board shall (after payment in full, or the setting aside of a sum required for payment in full, of all dividends payable on or before the relevant date on any shares in the capital of the Company in priority to the relevant Euro Preference Shares) apply such profits, if any, in paying dividends to the holders of participating shares (as defined below) pro rata to the amounts of dividend on participating shares accrued and payable on or before the relevant date. For the purposes of this paragraph, the expression "participating shares" shall mean the relevant Euro Preference Shares and any other shares in the capital of the Company which rank pari passu as to participation in profits with the relevant Euro Preference Shares and on which either (1) a dividend is payable on the relevant date or (2) arrears of cumulative dividend are unpaid at the relevant date;
(ii) if it shall subsequently appear that any such dividend which has been paid in whole or in part should not, in accordance with the provisions of this sub-paragraph, have been so paid, then provided the Board shall have acted in good faith, they shall not incur any liability for any loss which any shareholder may suffer in consequence of such payment having been made;
(b) if the payment of any dividend on any relevant Euro Preference Shares would breach or cause a breach of the capital adequacy requirements of the Financial Services Authority (or any successor organisation responsible for the supervision of banks in the United Kingdom) from time to time applicable to the Company and/or any of its subsidiaries, then none of such dividend shall be payable;
(c) if a dividend or any part thereof on any relevant Euro Preference Shares is not paid for the reasons specified in sub-paragraphs (a) or (b) above, the holders of such shares shall have no claim in respect of such non-payment;
(d) if any dividend on any relevant Euro Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, the Company may not thereafter purchase or redeem any other share capital of the Company ranking pari passu with or after the relevant Euro Preference Shares (and may not contribute any moneys to a sinking fund for any such purchase or redemption) until such time as dividends on the relevant Euro Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or an amount equivalent thereto shall have been paid or set aside to provide for such payment in full);
(e) if any dividend on any relevant Euro Preference Shares in respect of such period as the Board shall determine prior to allotment thereof is not paid in full, no dividend or other distribution may thereafter be declared or paid on any other share capital of the Company ranking as to dividend after the relevant Euro Preference Shares until such time as dividends on the relevant Euro Preference Shares in respect of such period as the Board shall determine prior to allotment thereof shall have been paid in full (or a sum shall have been paid or set aside to provide for such payment in full).
Redemption
(5) (a) Unless otherwise determined by the Board in relation to
Euro Preference Shares of any series prior to allotment
thereof, the Euro Preference Shares shall, subject to the
provisions of the Act, be redeemable at the option of the
Company.
(b) In the case of any series of Euro Preference Shares which
are to be so redeemable:
(i) the Company may, subject to the provisions of the
Act and sub-paragraph (ii) below, redeem on any
Redemption Date (as hereinafter defined) all, but
not merely some, of the Euro Preference Shares of
such series by giving to the holders of the Euro
Preference Shares to be redeemed not less than 30
days' nor more than 60 days' prior notice in writing
(a "Notice of Redemption") of the relevant
Redemption Date. "Redemption Date" means, in
relation to Euro Preference Shares of a particular
series, any date mentioned in any one of (A), (B) or
(C) below, as determined by the Board prior to the
first allotment of Euro Preference Shares of that
series:
(A) any date which falls on or after the First
Redemption Date (as hereinafter defined); or
(B) the First Redemption Date or any subsequent
Dividend Payment Date for Euro Preference
Shares of that series; or
(C) the First Redemption Date or any successive
fifth anniversary thereof.
"First Redemption Date" means:
(D) in relation to any Euro Preference Shares
designated as "Series 1", 30 June 2012;
(E) in relation to any other Euro Preference
Shares of a particular series, one day after
such one of the following dates as shall be
determined by the Board prior to the first
allotment of Euro Preference Shares of that
series:
(1) five years after the Relevant Date (as
hereinafter defined);
(2) ten years after the Relevant Date;
(3) fifteen years after the Relevant Date;
(4) twenty years after the Relevant Date;
(5) thirty years after the Relevant Date.
"Relevant Date" means, in relation to Euro
Preference Shares of a particular series, such one
of the following dates as shall be determined by the
Board prior to the first allotment of Euro
Preference Shares of that series:
(F) the first date of allotment of Euro
Preference Shares of that series; or
(G) the first Dividend Payment Date for Euro
Preference Shares of that series;
(ii) if either of the restrictions in sub-paragraphs
(4)(a)(i) and (4)(a)(ii) of this Article applies to
any dividend otherwise payable on any Redemption
Date on the Euro Preference Shares of that series,
the Company may not redeem such Euro Preference
Shares on that Redemption Date;
(iii) there shall be paid on each Euro Preference Share so
redeemed, in euro, the aggregate of the nominal
amount thereof and any premium credited as paid up
on such share together with any dividend payable on
the Redemption Date;
(iv) any Notice of Redemption given under sub-paragraph
(b)(i) above shall specify the applicable Redemption
Date, the particular Euro Preference Shares to be
redeemed and the redemption price, and shall state
the place or places at which documents of title or
such other evidence as may be accepted by the Board
in respect of such Euro Preference Shares are to be
presented and surrendered for redemption and payment
of the redemption moneys is to be effected. Upon
such Redemption Date, the Company shall redeem the
particular Euro Preference Shares to be redeemed on
that date subject to the provisions of this
paragraph and of the Act. No defect in the Notice of
Redemption or in the giving thereof shall affect the
validity of the redemption proceedings;
(v) payments in respect of the amount due on redemption
of a Euro Preference Share shall be made by euro
cheque drawn on a bank in a member state of the
European Union (or such other country participating
in European Monetary Union from time to time) or
upon the request of the holder or joint holders not
later than the date specified for the purpose in the
Notice of Redemption by transfer to a euro account
maintained by the payee with a bank in a member
state of the European Union (or such other country
participating in European Monetary Union from time
to time) or by such other method as the Board may
determine. Such payment will be made against
presentation and surrender of the relative
certificate at the place or one of the places
specified in the Notice of Redemption or against
such other evidence as may be accepted by the Board.
All payments in respect of redemption moneys will in
all respects be subject to any applicable fiscal or
other laws;
(vi) as from the relevant Redemption Date the dividend on
the Euro Preference Shares due for redemption shall
cease to accrue except on any such Euro Preference
Shares in respect of which, upon due surrender of
the certificate or other evidence aforesaid, payment
of the redemption moneys due on such Redemption Date
shall be improperly withheld or refused, in which
case such dividend, at the rate then applicable,
shall be deemed to have continued and shall
accordingly continue to accrue from the relevant
Redemption Date to the date of payment of such
redemption moneys. Such Euro Preference Shares shall
not be treated as having been redeemed until the
redemption moneys in question together with the
accrued dividend thereon shall have been paid;
(vii) if the due date for the payment of the redemption
moneys on any Euro Preference Share is not a day on
which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System (or any
successor system) is open (a "Euro Business Day"),
then payment of such moneys will be made on the next
succeeding day which is a Euro Business Day and
without any interest or other payment in respect of
such delay; and
(viii) the receipt of the holder for the time being of any
Euro Preference Shares (or, in the case of joint
registered holders, the receipt of any one of them)
for the moneys payable on redemption thereof shall
constitute an absolute discharge to the Company in
respect thereof.
(c) Upon the redemption or purchase of any Euro Preference
Shares the Board shall have power without any further
resolution or consent to convert the authorised but
unissued Euro Preference Shares existing as a result of
such redemption or purchase into shares of any other class
of share capital into which the authorised share capital of
the Company is or may be divided of the same nominal amount
in euro as the Euro Preference Shares or into unclassified
shares of the same nominal amount in euro as the Euro
Preference Shares.
(d) Any Euro Preference Shares redeemed pursuant to this
paragraph (5) shall be cancelled on redemption.
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Purchase
(6) Subject to the provisions of the Act, the Company may at any time purchase any Euro Preference Shares (i) in the market, (ii) by tender (available alike to all holders of the same class of Euro Preference Shares) or (iii) by private treaty, in each case upon such terms as the Board shall determine.
Consolidation and division
(7) Pursuant to the authority given by the passing of the resolution adopting this Article the Board may consolidate and divide and/or sub-divide any Euro Preference Shares into shares of a larger or smaller amount.
Attendance and voting at general meetings
(8) (a) Save as provided by its terms of issue, no Euro Preference
Share shall carry any right to attend or vote at general
meetings of the Company.
(b) If so determined by the Board prior to allotment thereof,
holders of Euro Preference Shares of any series shall have
the right to attend and vote at general meetings of the
Company in the following circumstances:
(i) if any dividend on any Euro Preference Shares of
that series in respect of such period as the Board
shall determine prior to allotment thereof is not
paid in full, the right to attend and vote at
general meetings of the Company until such time as
dividends on those Euro Preference Shares in respect
of such period as the Board shall determine prior to
allotment thereof shall have been paid in full (or a
sum shall have been paid or set aside to provide for
such payment in full);
(ii) in such other circumstances, and upon and subject to
such terms, as the Board may determine prior to
allotment of such Euro Preference Shares.
(c) Whenever holders of Euro Preference Shares are entitled to
vote on a resolution at a general meeting, on a show of
hands every such holder who is present in person shall have
one vote and on a poll every such holder who is present in
person or by proxy shall have one vote per Euro Preference
Share held by him or such number of votes per share as the
Board shall determine prior to allotment of such share.
(d) Holders of Euro Preference Shares having a registered
address or address for correspondence within the United
Kingdom shall have the right to have sent to them (at the
same time as the same are sent to the holders of Ordinary
Shares) all notices of general meetings of the Company and
a copy of every circular or other like document sent out by
the Company to the holders of Ordinary Shares.
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Further preference shares
(9) The special rights attached to any Euro Preference Shares of any series allotted or in issue shall not (unless otherwise provided by their terms of issue) be deemed to be varied by the creation or issue of any other preference shares or further shares in any currency ("new shares") ranking as regards participation in the profits and assets of the Company pari passu with such Euro Preference Shares and so that any new shares ranking pari passu with such Euro Preference Shares may either carry rights and restrictions identical in all respects with such Euro Preference Shares or any of them or rights and restrictions differing therefrom in any respect including but without prejudice to the generality of the foregoing in that:
(a) the rate of and/or basis of calculation of dividend may differ and the dividend may be cumulative or non-cumulative;
(b) the new shares or any series thereof may rank for dividend as from such date as may be provided by the terms of issue thereof and the dates of payment of dividend may differ;
(c) a premium may be payable on return of capital or there may be no such premium;
(d) the new shares may be redeemable at the option of the holder or of the Company, or may be non-redeemable, and if redeemable at the option of the Company they may be redeemable at different dates and on different terms from those applying to the Euro Preference Shares; and
(e) the new shares may be convertible into Ordinary Shares or any other class of shares ranking as regards participation in the profits and assets of the Company pari passu with or after such Euro Preference Shares in each case on such terms and conditions as may be prescribed by the terms of issue thereof.
Variation of class rights
(10) (a) Subject to the provisions of the Act:
(i) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to the Euro Preference Shares may from time to time (whether or not the Company is being wound up) be varied or abrogated with the consent in writing of the holders of not less than three-quarters in nominal value of the Euro Preference Shares of all series in issue or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of the Euro Preference Shares, voting as a single class without regard for series; and
(ii) all or any of the rights, preferences, privileges, limitations or restrictions for the time being attached to Euro Preference Shares of any series may be varied or abrogated so as to affect adversely such rights on a basis different from any other series of Euro Preference Shares with the consent in writing of the holders of not less than three-quarters in nominal value of the Euro Preference Shares of such series or with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of Euro Preference Shares of such series.
All the provisions of these Articles as to general meetings of the Company shall mutatis mutandis apply to any such separate general meeting, but so that the necessary quorum shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class, that every holder of shares of the class shall be entitled on a poll to one vote for every share of the class held by him, that any holder of shares of the class present in person or by proxy may demand a poll and that at any adjourned meeting of the holders one holder present in person or by proxy (whatever the number of shares held by him) shall be a quorum.
(b) Unless otherwise provided by its terms of issue, the rights
attached to any Euro Preference Share shall not be deemed to be
varied or abrogated by a reduction of any share capital or
purchase by the Company or redemption of any share capital in each
case ranking as regards participation in the profits and assets of
the Company in priority to or pari passu with or after such Euro
Preference Share.
5C Rights of the Non-voting Deferred Shares
5C.1 The following rights and restrictions shall be attached to the Non-voting
Deferred Shares:
(1) As regards income
The holders of the Non-voting Deferred Shares shall not be
entitled to receive any dividend out of the profits of the Company
available for distribution and resolved to be distributed in
respect of any financial year.
(2) As regards capital
On a distribution of assets on a winding-up or other return of
capital (otherwise than on conversion or redemption or purchase by
the Company of any of its shares) the holders of the Non-voting
Deferred Shares shall be entitled to receive the amount paid up on
their shares after there shall have been distributed (in cash or
specie) to the holders of the Ordinary Shares the amount of
(pound)10,000,000 in respect of each Ordinary Share held by them
respectively. For this purpose distributions in currency other
than sterling shall be treated as converted into sterling, and the
value of any distribution in specie shall be ascertained in
sterling, in each case in such manner as the Board or the Company
in general meeting may approve. The Non-voting Deferred Shares
shall not entitle the holders thereof to any further or other
right of participation in the assets of the Company.
(3) As regards voting
The holders of Non-voting Deferred Shares shall not be entitled to
receive notice of or to attend (either personally or by proxy) any
general meeting of the Company or to vote (either personally or by
proxy) on any resolution to be proposed thereat.
(4) Variation
The rights attached to the Non-voting Deferred Shares shall not be
deemed to be varied or abrogated by the creation or issue of any
new shares ranking in priority to or pari passu with or subsequent
to such shares.
6 Allotment
6.1 Subject to the provisions of the Act and to any relevant authority of the
Company in general meeting required by the Act, unissued shares of the
Company at the date of adoption of these Articles and any shares
hereafter created shall be at the disposal of the Board, which may allot
(with or without conferring rights of renunciation), grant options over,
offer or otherwise deal with or dispose of them or grant rights to
subscribe for or convert any security into shares of the Company to such
persons (including the Directors themselves), at such times and generally
on such terms and conditions as the Board may decide, provided that no
share shall be issued at a discount.
6.2 (1) This Article 6.2 applies to any rights issue of any New Securities
(as hereinafter defined) or any invitation to subscribe for any
such securities which the Company may make in favour of holders of
Ordinary Shares.
(2) Whenever this Article 6.2 applies, the Company shall subject to
the following provisions of this Article 6.2 extend the same
invitation to all holders of Ordinary Shares at the same price and
on the same terms.
(3) Notwithstanding anything herein contained, whenever this Article
6.2 applies:
(a) the Board may make such exclusions or other arrangements as
the Board may deem necessary or expedient in relation to
fractional entitlements or having regard to any
restrictions or obligations under the laws of or the
requirements of any regulatory body or stock exchange in
any territory or otherwise howsoever;
(b) the Board may offer to holders of Ordinary Shares
denominated in one currency Ordinary Shares denominated in
the same or some other currency (or the right to subscribe
for or to convert into or to exchange any securities for
any such Ordinary Shares) and may give to any holders of
Ordinary Shares a choice as to the currency in which the
Ordinary Shares which they acquire (whether in pursuance of
the rights issue or any such right as aforesaid) are
denominated;
(c) the Board may determine that the price per New Security may
be converted into such currency or currencies at such rate
or rates of exchange as the Board may in its absolute
discretion determine and so that the invitation may be made
to holders of Ordinary Shares in different currencies and
so that such holders may be given the option of subscribing
in one or more different currencies;
(d) if the Board determines to exercise the powers conferred by
paragraphs (b) or (c) above, it need not exercise such
powers in the same manner or to the same extent in relation
to all holders of Ordinary Shares but may exercise such
powers in relation to such holders of Ordinary Shares and
in such manner and to such extent as it shall in its
absolute discretion think fit.
(4) In this Article 6.2, "New Securities" means Ordinary Shares or any
securities conferring the right to subscribe for or convert into
or to exchange such security for Ordinary Shares.
7 Redeemable shares
7.1 Subject to the provisions of the Act and to any special rights for the
time being attached to any existing shares, any share may be issued which
is, or at the option of the Company or of the holder of such share is
liable, to be redeemed on such terms and in such manner as these Articles
may provide.
8 Power to attach rights
8.1 Subject to the provisions of the Act and to any special rights for the
time being attached to any existing shares, any shares may be allotted or
issued with or have attached to them such preferred, deferred or other
special rights or restrictions, whether in regard to dividend, voting,
transfer, return of capital or otherwise, as the Company may from time to
time by ordinary resolution determine or, if no such resolution has been
passed or so far as the resolution does not make specific provision, as
the Board may determine.
9 Stock and share warrants to bearer
9.1 The Company may issue, under the Seal, share warrants to bearer in
respect of any fully paid shares in the Company, stating that the bearer
is entitled to the shares represented thereby, and the Company may
provide by coupons or otherwise for the payment of any future dividends
on the shares so represented. Such powers shall be vested in the Board
which may determine and from time to time vary the conditions upon which
warrants shall be issued. Without prejudice to the generality of the
foregoing, the Board may determine the conditions upon which any warrant
or coupon shall be replaced, but so that, in the case of the loss of a
warrant or coupon, no replacement warrant or coupon shall be issued
unless the Board is satisfied beyond reasonable doubt that the original
has been destroyed, and the Board may also determine the conditions upon
which the bearer of a warrant shall be entitled to receive notice of, and
to attend and vote and demand a poll at, general meetings of the Company
and to join in requisitioning or convening general meetings, and upon
which a warrant may be surrendered and the name of the bearer entered in
the register in respect of the shares represented thereby. Subject to
such conditions and to the provisions of these Articles and of the Act,
the bearer of a warrant shall be deemed to be a member for all purposes.
The bearer of a warrant shall hold the same subject to the conditions for
the time being in force in regard to warrants for shares of the same
class of shares to which the warrant relates and whether such conditions
are determined by the Board before or after the issue of such warrant.
10 Commission and brokerage
10.1 The Company may in connection with the issue of any shares exercise all
powers of paying commission and brokerage conferred or permitted by the
Act. Subject to the provisions of the Act, any such commission or
brokerage may be satisfied by the payment of cash, the allotment of fully
or partly paid shares, the grant of an option to call for an allotment of
shares or any combination of such methods.
11 Trusts not to be recognised
11.1 Except as otherwise expressly provided by these Articles, as required by
law or as ordered by a court of competent jurisdiction, the Company shall
not recognise any person as holding any share on any trust, and (except
as aforesaid) the Company shall not be bound by or recognise (even if
having notice of it) any equitable, contingent, future, partial or other
claim to or interest in any share except an absolute right of the holder
to the whole of the share.
SHARE CERTIFICATES
12 Right to certificates
12.1 On becoming the holder of any share every person (except a recognised
person in respect of whom the Company is not by law required to complete
and have ready for delivery a certificate) shall be entitled, without
charge, to receive within two months after allotment or lodgment of a
transfer (unless the terms of issue of the shares provide otherwise) one
certificate for all the shares of each class registered in his name. Such
certificate shall specify the number, class, and distinguishing numbers
(if any) of the shares in respect of which it is issued and the amount or
respective amounts paid up thereon.
12.2 [Deleted by Special Resolution passed on 28 May 1999]
12.3 If and so long as all the issued shares of the Company or all the issued
shares of a particular class are fully paid up and rank pari passu for
all purposes, then none of those shares shall bear a distinguishing
number. In all other cases each share shall bear a distinguishing number.
12.4 The Company shall not be bound to issue more than one certificate in
respect of shares held jointly by two or more persons. Delivery of a
certificate to the person first named on the register shall be sufficient
delivery to all joint holders.
12.5 Where a member (other than a recognised person) has transferred part only
of the shares comprised in a certificate, he shall be entitled without
charge to a certificate for the balance of such shares.
12.6 No certificate shall be issued representing shares of more than one
class, or in respect of shares held by a recognised person.
13 Replacement certificates
13.1 Any two or more certificates representing shares of any one class held by
any member may at his request be cancelled and a single new certificate
for such shares issued in lieu without charge on surrender of the
original certificates for cancellation.
13.2 If any member shall surrender for cancellation a share certificate
representing shares held by him and request the Company to issue in lieu
two or more share certificates representing such shares in such
proportions as he may specify, the Board may, if it thinks fit, comply
with such request.
13.3 If any share certificate shall be defaced, worn out, destroyed or lost,
it may be renewed on such terms as to provision of evidence and indemnity
(with or without security) and without prejudice to the provisions of
paragraph 13.5 below to payment of any exceptional 'out of pocket'
expenses, including those incurred by the Company in investigating such
evidence and preparing such indemnity and security, as the Board may
decide, and on surrender of the original certificate (where it is
defaced, damaged or worn out) but without further charge.
13.4 In the case of shares held jointly by several persons, any such request
as is mentioned in this Article 13 may be made by any one of the joint
holders.
13.5 If the Board so requires, a fee shall be paid in any jurisdiction in
which all or any shares are for the time being listed or traded on a
stock exchange in that jurisdiction before the issue of any new
certificate, whether the same is issued as a result of a transfer or
transmission of the shares to which it relates or the splitting up of an
existing certificate provided always that such fee shall not exceed the
maximum such fee prescribed or permitted from time to time by the
relevant stock exchange or by a relevant regulatory body in that
jurisdiction.
LIEN ON SHARES
14 Lien on shares not fully paid
14.1 The Company shall have a first and paramount lien on any of its shares
which are not fully paid, to the extent and in the circumstances
permitted by section 150 of the Act. The Board may waive any lien which
has arisen and may resolve that any share shall for some limited period
be exempt wholly or partially from the provisions of this Article.
15 Enforcement of lien by sale
15.1 The Board may sell all or any of the shares subject to any lien at such
time or times and in such manner as it may determine. However, no sale
shall be made until such time as the moneys in respect of which such lien
exists or some part thereof are or is presently payable or the liability
or engagement in respect of which such lien exists is liable to be
presently fulfilled or discharged, and until a demand and notice in
writing stating the amount due or specifying the liability or engagement
and demanding payment or fulfilment or discharge thereof and giving
notice of intention to sell in default shall have been served on the
holder or the persons (if any) entitled by transmission to the shares,
and default in payment, fulfilment or discharge shall have been made by
him or them for 14 clear days after service of such notice. For giving
effect to any such sale, the Board may authorise some person to execute
an instrument of transfer of the shares sold in the name and on behalf of
the holder of or the persons entitled by transmission to the shares in
favour of the purchaser or as the purchaser may direct. The purchaser
shall not be bound to see to the application of the purchase money, and
the title of the transferee to the shares shall not be affected by any
irregularity in or invalidity of the proceedings in reference to the
sale.
16 Application of proceeds of sale
16.1 The net proceeds of any sale of shares subject to any lien, after payment
of the costs, shall be applied in or towards satisfaction of so much of
the amount due to the Company, or of the liability or engagement (as the
case may be) as is presently payable or is liable to be presently
fulfilled or discharged. The balance (if any) shall (on surrender to the
Company for cancellation of the certificate for the shares sold, and
subject to a like lien for any moneys not presently payable or any
liability or engagement not liable to be presently fulfilled or
discharged as existed on the shares before the sale) be paid to the
member or the person (if any) entitled by transmission to the shares so
sold.
CALLS ON SHARES
17 Calls
17.1 Subject to the terms of allotment of shares, the Board may from time to
time make calls on the members in respect of any moneys unpaid on the
shares or any class of shares held by them respectively (whether in
respect of nominal value or premium) and not payable on a date fixed by
or in accordance with the terms of issue. Each member shall (subject to
receiving at least 14 clear days' notice specifying when and where
payment is to be made and whether or not by instalments) be liable to pay
the amount of every call so made on him as required by the notice. A call
shall be deemed to have been made at the time when the resolution of the
Board authorising such call was passed or (as the case may require) any
person to whom power has been delegated pursuant to these Articles serves
notice of exercise of such power. A call may be required to be paid by
instalments and may, before receipt by the Company of any sum due
thereunder, be either revoked or postponed in whole or part as regards
all or any holder(s) as the Board may determine. A person on whom a call
is made shall remain liable notwithstanding the subsequent transfer of
the shares in respect of which the call was made. The joint holders of a
share shall be jointly and severally liable for the payment of all calls
in respect thereof.
18 Interest on calls
18.1 If the whole of the sum payable in respect of any call is not paid on or
before the day appointed for payment, the person from whom it is due and
payable shall pay all costs, charges and expenses that the Company may
have incurred by reason of such non-payment, together with interest on
the unpaid amount from the day appointed for payment thereof to the time
of actual payment at the rate fixed by the terms of the allotment of the
share or in the notice of the call or, if no rate is so fixed, at such
rate not exceeding 15 per cent per annum as the Board shall determine.
The Board may waive payment of such costs, charges, expenses or interest
in whole or in part.
19 Rights of member when call unpaid
19.1 No member shall, unless the Board otherwise determines, be entitled to
receive any dividend or to be present and vote at any general meeting
either personally or (save as proxy for another member) by proxy, or be
reckoned in a quorum, or to exercise any other privilege as a member
unless and until he shall have paid all calls for the time being due and
payable on every share held by him, whether alone or jointly with any
other person, together with interest and expenses (if any).
20 Sums due on allotment treated as calls
20.1 Any sum payable in respect of a share on allotment or at any fixed date,
whether in respect of the nominal value of the share or by way of premium
or as an instalment of a call, shall for all purposes of these Articles
be deemed to be a call duly made. If it is not paid the provisions of
these Articles shall apply as if such amount had become due and payable
by virtue of a call.
21 Power to differentiate
21.1 The Board may make arrangements on the allotment or issue of shares for a
difference as between the allottees or holders of such shares in the
amount and time of payment of calls.
22 Payment in advance of calls
22.1 The Board may, if it thinks fit, receive from any member willing to
advance the same all or any part of the moneys uncalled and unpaid on the
shares held by him. Such payment in advance of calls shall extinguish pro
tanto the liability on the shares on which it is made. The Company may
pay interest on the money paid in advance, or so much of it as exceeds
the amount for the time being called up on the shares in respect of which
such advance has been made, at such rate as the Board may decide. The
Board may at any time repay the amount so advanced on giving to such
member not less than three months' notice in writing of its intention in
that behalf, unless before the expiration of such notice the amount so
advanced shall have been called up on the shares in respect of which it
was advanced.
23 Delegation of power to make calls
23.1 If any uncalled capital of the Company is included in or charged by any
mortgage or other security, the Board may delegate to the person in whose
favour such mortgage or security is executed, or to any other person in
trust for him, the power to make calls on the members in respect of such
uncalled capital, to sue in the name of the Company or otherwise for the
recovery of moneys becoming due in respect of calls so made and to give
valid receipts for such moneys. The power so delegated shall subsist
during the continuance of the mortgage or security, notwithstanding any
change of Directors, and shall be assignable if expressed so to be.
24 Indemnity against claims in respect of shares
24.1 Whenever any law for the time being of any country, state or place
imposes or purports to impose any immediate or future or possible
liability on the Company to make any payment, or empowers any government
or taxing authority or government official to require the Company to make
any payment, in respect of any shares held either jointly or solely by
any member or in respect of any dividends, bonuses or other monies due or
payable or accruing due or which may become due or payable to such member
by the Company or in respect of any such shares or for or on account or
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in respect of any member and whether in consequence of:
(a) the death of such member;
(b) the non-payment of any income tax or other tax by such member;
(c) the non-payment of any estate, probate, succession, death, stamp, or other duty by the executor or administrator of such member or by or out of his estate; or
(d) any other act or thing;
the Company in every such case:
(i) shall be fully indemnified by such member or his executor or administrator from all liability arising by virtue of such law; and
(ii) may recover as a debt due from such member or his executor or administrator (wherever constituted or residing) any monies paid by the Company under or in consequence of any such law, together with interest thereon at the rate of 15 per cent. per annum thereon from the date of payment to the date of repayment.
Nothing contained in this Article shall prejudice or affect any right or remedy which any law may confer or purport to confer on the Company and as between the Company and every such member as aforesaid, his executor, administrator, and estate wherever constituted or situated, any right or remedy which such law shall confer or purport to confer on the Company shall be enforceable by the Company.
FORFEITURE OF SHARES
25 Notice if call not paid
25.1 If any member fails to pay the whole of any call or any instalment of any
call on or before the day appointed for payment, the Board may at any
time serve a notice in writing on such member or on any person entitled
to the shares by transmission, requiring payment, on a date not less than
14 clear days from the date of the notice, of the amount unpaid and any
interest which may have accrued thereon and any costs, charges and
expenses incurred by the Company by reason of such non-payment. The
notice shall name the place where the payment is to be made and state
that, if the notice is not complied with, the shares in respect of which
such call was made will be liable to be forfeited.
26 Forfeiture for non-compliance
26.1 If the notice referred to in Article 25 is not fully complied with, any
share in respect of which it was given may, at any time before the
payment required by the notice has been made, be forfeited by a
resolution of the Board to that effect. Such forfeiture shall include all
dividends declared or other moneys payable in respect of the forfeited
shares and not paid before the forfeiture.
26.2 If any person from whom any call or interest thereon or any part thereof
is due, and whose share has been declared forfeited for non-payment
thereof, shows to the satisfaction of the Board that he is unable to pay
the whole amount then remaining due from him in respect of such call or
interest, the Board may accept from him such sum by way of composition
for and in lieu of the whole amount so then due from him as the Board may
determine; and upon the payment of such composition may discharge him
from all claims and demands whatsoever then remaining due in respect of
such call and interest; but no such composition shall be accepted from
any person while he continues a member in his own right in respect of any
share besides the share so forfeited, or shall give him any claim to or
in respect of the share so forfeited.
27 Notice after forfeiture
27.1 When any share has been forfeited, notice of the forfeiture shall be
served on the person who was before forfeiture the holder of the share or
the person entitled to such share by transmission (as the case may be).
An entry of such notice having been given and of the forfeiture with the
date thereof shall forthwith be made in the Register in respect of such
share. However, no forfeiture shall be invalidated by any omission to
give such notice or to make such entry as aforesaid.
28 Forfeiture may be annulled
28.1 The Board may, at any time before any share so forfeited has been
cancelled or sold, re-allotted or otherwise disposed of, annul the
forfeiture, on the terms of payment of all calls and interest due thereon
and all expenses incurred in respect of the share and on such further
terms (if any) as the Board shall see fit.
29 Surrender
29.1 The Board may accept a surrender of any share liable to be forfeited. In
such case references in these Articles to forfeiture shall include
surrender.
30 Disposal of forfeited shares
30.1 Every share which shall be forfeited shall thereupon become the property
of the Company. Subject to the provisions of the Act any such share may
be sold, re-allotted or otherwise disposed of, either to the person who
was before forfeiture the holder thereof or entitled thereto or to any
other person, on such terms and in such manner as the Board shall
determine. The Board may for the purposes of the disposal authorise some
person to transfer the shares in question and may enter the name of the
transferee in respect of the transferred shares in the Register
notwithstanding the absence of any share certificate being lodged in
respect thereof and may issue a new certificate to the transferee and an
instrument of transfer executed by that person shall be as effective as
if it had been executed by the holder of, or person entitled by
transmission to, the shares. The Company may receive the consideration
(if any) given for the share on its disposal.
31 Effect of forfeiture
31.1 A shareholder whose shares have been forfeited shall cease to be a member
in respect of them and shall surrender to the Company for cancellation
the certificate for the shares forfeited. He shall nevertheless be liable
to pay to the Company all calls made and not paid on such shares at the
time of forfeiture, and interest thereon from the date of the forfeiture
to the date of payment, in the same manner in all respects as if the
shares had not been forfeited, and to satisfy all (if any) claims and
demands which the Company might have enforced in respect of the shares at
the time of forfeiture, without any reduction or allowance for the value
of the shares at the time of forfeiture or for any consideration received
on their disposal.
32 Extinction of claims
32.1 The forfeiture of a share shall involve the extinction at the time of
forfeiture of all interest in and all claims and demands against the
Company in respect of the share and all other rights and liabilities
incidental to the share as between the shareholder whose share is
forfeited and the Company, except only such of those rights and
liabilities as are by these Articles expressly saved, or as are by the
Act given or imposed in the case of past members.
33 Evidence of forfeiture
33.1 A statutory declaration by a Director or the Secretary that a share has
been forfeited in pursuance of these Articles, and stating the date on
which it was forfeited, shall, as against all persons claiming to be
entitled to the share adversely to the forfeiture thereof, be conclusive
evidence of the facts therein stated. The declaration, together with the
receipt of the Company for the consideration (if any) given for the share
on the sale or disposition thereof and a certificate for the share under
the Seal delivered to the person to whom the same is sold or disposed of,
shall (subject if necessary to the execution of an instrument of
transfer) constitute a good title to the share. Subject to the execution
of any necessary transfer, such person shall be registered as the holder
of the share and shall be discharged from all calls made prior to such
sale or disposition and shall not be bound to see to the application of
the purchase money or other consideration (if any), nor shall his title
to the share be affected by any act, omission or irregularity relating to
or connected with the proceedings in reference to the forfeiture or
disposal of the share. Any such person shall not (unless by express
agreement) become entitled to any of the dividends accrued or which might
have accrued upon the shares before the completion of the sale or
disposition thereof.
TRANSFER OF SHARES
34 Form of transfer
34.1 Each member may transfer all or any of his shares by instrument of
transfer in writing in any usual form or in any form approved by the
Board. Such instrument shall be executed by or on behalf of the
transferor and (in the case of a transfer of a share which is not fully
paid up) by or on behalf of the transferee. The transferor shall be
deemed to remain the holder of such share until the name of the
transferee is entered in the Register in respect of it.
35 Right to refuse registration
35.1 The Board may, in its absolute discretion and without giving any reason,
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refuse to register any share transfer unless:
(a) it is in respect of a share which is fully paid up;
(b) it is in respect of a share on which the Company has no lien;
(c) it is in respect of only one class of shares and in respect of shares denominated in the same currency;
(d) it is in favour of a single transferee or not more than four joint transferees;
(e) it is duly stamped (if so required); and
(f) it is delivered for registration to the Office or such other place
as the Board may from time to time determine, accompanied (except
in the case of a transfer by a recognised person where a
certificate has not been issued) by the certificate for the shares
to which it relates and such other evidence as the Board may
reasonably require to prove the title of the transferor and the
due execution by him of the transfer or, if the transfer is
executed by some other person on his behalf, the authority of that
person to do so
provided that the Board shall not refuse to register any transfer of
partly paid shares which are listed on The Stock Exchange on the grounds
that they are partly paid shares in circumstances where such refusal
would prevent dealing in such shares from taking place on an open and
proper basis. References herein to a transfer shall be deemed to include
renunciation of a renounceable letter of allotment.
35.2 A transfer of shares will not be registered in the circumstances
envisaged by Article 81.
36 Notice of refusal
36.1 If the Board refuses to register a transfer of a share it shall, within
two months after the date on which the transfer was lodged with the
Company send notice of the refusal to the transferee. Any instrument of
transfer which the Board refuses to register shall (except in the case of
suspected fraud) be returned to the person depositing it. All instruments
of transfer which are registered may be retained by the Company.
37 Closing of Registers
37.1 The registration of transfers of shares or of any class of shares may be
suspended at such times and for such periods (not exceeding 30 days in
any year) as the Board may from time to time determine. Any closing of
the Register shall be notified in accordance with the requirements of the
Act and shall be notified at least once by advertisement in a leading
daily newspaper published in the United Kingdom and in one leading
English language daily newspaper printed and circulating in the place
where such closing takes place (and if such place is Hong Kong also in
one leading Chinese language daily newspaper circulating in Hong Kong).
38 Fees on registration
38.1 If the Board so requires, a fee shall be charged in any jurisdiction in
which all or any shares are for the time being listed or traded on a
stock exchange in that jurisdiction for the registration of a transfer or
on the registration of any probate, letters of administration,
certificate of death or marriage, power of attorney, notice or other
instrument relating to or affecting the title to any shares provided
always that such fee shall not exceed the maximum such fee prescribed or
permitted from time to time by the relevant stock exchange or by a
relevant regulatory body in that jurisdiction.
39 Other powers in relation to transfers
39.1 Nothing in these Articles shall preclude the Board:
(a) from recognising a renunciation of the allotment of any share by
the allottee in favour of some other person; or
(b) if empowered by these Articles to authorise any person to execute
an instrument of transfer of a share, from authorising any person
to transfer that share in accordance with any procedures
implemented pursuant to Article 12.2.
40 [Deleted by Special Resolution passed on 9 June 1992 which came into
effect on 10 July 1992.]
TRANSMISSION OF SHARES
41 On death
41.1 If a member dies, the survivors or survivor, where he was a joint holder,
and his executors or administrators, where he was a sole or the only
survivor of joint holders, shall be the only persons recognised by the
Company as having any title to his shares. Nothing in these Articles
shall release the estate of a deceased member from any liability in
respect of any share which has been solely or jointly held by him.
42 Election of person entitled by transmission
42.1 Any person becoming entitled to a share in consequence of the death or
bankruptcy of any member, or of any other event giving rise to a
transmission of such entitlement by operation of law, may, on such
evidence as to his title being produced as the Board may require, elect
either to become registered as a member or to have some person nominated
by him registered as a member. If he elects to become registered himself,
he shall give notice to the Company to that effect. If he elects to have
some other person registered, he shall execute an instrument of transfer
of such share to that person. All the provisions of these Articles
relating to the transfer of shares shall apply to the notice or
instrument of transfer (as the case may be) as if it were an instrument
of transfer executed by the member and his death, bankruptcy or other
event as aforesaid had not occurred. Where the entitlement of a person to
a share in consequence of the death or bankruptcy of a member or of any
other event giving rise to its transmission by operation of law is proved
to the satisfaction of the Board, the Board shall within two months after
proof cause the entitlement of that person to be noted in the Register.
43 Rights on transmission
43.1 Where a person becomes entitled to a share in consequence of the death or
bankruptcy of any member, or of any other event giving rise to a
transmission of such entitlement by operation of law, the rights of the
holder in relation to such share shall cease. However, the person so
entitled may give a good discharge for any dividends and other moneys
payable in respect of it and shall have the same rights to which he would
be entitled if he were the holder of the share, except that he shall not,
before he is registered as the holder of the share, be entitled in
respect of it to receive notice of, or to attend or vote at any meeting
of the Company or at any separate meeting of the holders of any class of
shares of the Company. The Board may at any time give notice requiring
any such person to elect either to be registered himself or to transfer
the share. If the notice is not complied with within 60 days, the Board
may thereafter withhold payment of all dividends and other moneys payable
in respect of such share until the requirements of the notice have been
complied with.
DESTRUCTION OF DOCUMENTS
44 Destruction of documents
44.1 The Company may destroy:
(a) any instrument of transfer, after six years from the date on which
it is registered (or such shorter period as the Board shall
determine provided a copy thereof is retained by microfilming or
other similar means);
(b) any dividend mandate or any variation or cancellation thereof or
any notification of change of name or address, after two years
from the date on which it is recorded (or such shorter period as
the Board shall determine provided a copy thereof is retained by
microfilming or other similar means);
(c) any share certificate, after one year from the date on which it is
cancelled (or such shorter period as the Board shall determine
provided a copy thereof is retained by microfilming or other
similar means); and
(d) any other document on the basis of which any entry in the Register
is made, after six years from the date on which an entry was first
made in the Register in respect of it (or such shorter period as
the Board shall determine provided a copy thereof is retained by
microfilming or other similar means).
44.2 It shall be conclusively presumed in favour of the Company that every
entry in the Register purporting to have been made on the basis of a
document so destroyed was duly and properly made, that every instrument
of transfer so destroyed was duly registered, that every share
certificate so destroyed was duly cancelled, and that every other
document so destroyed was valid and effective in accordance with the
particulars in the records of the Company, provided that:
(a) this Article 44 shall apply only to the destruction of a document
in good faith and without notice of any claim (regardless of the
parties to it) to which the document might be relevant;
(b) nothing in this Article 44 shall be construed as imposing on the
Company any liability in respect of the destruction of any such
document otherwise than as provided for in this Article 44 which
would not attach to the Company in the absence of this Article 44;
and
(c) references in this Article 44 to the destruction of any document
include references to the disposal of it in any manner.
ALTERATION OF SHARE CAPITAL
45 Increase, consolidation, cancellation and sub-division
45.1 The Company in general meeting may from time to time by ordinary
resolution:
(a) increase its share capital by such sum to be divided into shares
of such amount as the resolution prescribes;
(b) consolidate and divide all or any of its share capital into shares
of larger nominal amount than its existing shares;
(c) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
person, and diminish the amount of its share capital by the amount
of the shares so cancelled; and
(d) subject to the provisions of the Act, sub-divide its shares or any
of them into shares of smaller amount, and may by such resolution
determine that, as between the shares resulting from such
sub-division, one or more of the shares may, as compared with the
others, have any such preferred, deferred or other special rights
or be subject to any such restrictions as the Company has power to
attach to unissued or new shares.
Any resolution for consolidation and division of Ordinary Shares into
shares of a larger nominal amount pursuant to paragraph (b) of this
Article and any resolution for sub-division of Ordinary Shares into
shares of a smaller amount pursuant to paragraph (d) of this Article
shall constitute a variation of the rights attached to the Ordinary
Shares unless such resolution shall affect all the Ordinary Shares in
issue in like manner and to like extent.
46 Fractions
46.1 Whenever as the result of any consolidation, division or sub-division of
shares any difficulty arises, the Board may settle it as it thinks fit
and in particular (but without prejudice to the generality of the
foregoing):
(a) whenever as a result of any consolidation of shares any members
would become entitled to fractions of shares, the Board may, on
behalf of those members, sell the shares incorporating the
fractions for the best price reasonably obtainable to any person
(including the Company) and distribute the net proceeds of sale
after deduction of the expenses of sale in due proportion among
those members (except that any amount otherwise due to a member,
being less than (pound)2.50 or its equivalent based on such
exchange rate as the Board may determine in any other relevant
currency or such other sum as the Board may from time to time
determine, may be retained for the benefit of the Company);
(b) the Board may as between the holders of shares to be consolidated
determine which particular shares are to be consolidated into each
consolidated share and, in the case of any shares registered in
the name of one holder or joint holders being consolidated with
shares registered in the name of another holder or joint holders,
may make such arrangements as it may think fit for the sale of the
consolidated share and for the distribution among the persons
entitled thereto of the net proceeds of such sale after deduction
of the expenses of sale or for the payment of such net proceeds to
the Company (except that any amount otherwise due to a member,
being less than (pound)2.50 or its equivalent based on such
exchange rate as the Board may determine in any other relevant
currency or such other sum as the Board may from time to time
determine, may be retained for the benefit of the Company);
(c) alternatively, provided that the necessary unissued shares are
available, the Board may, in each case where the number of shares
held by any holder is not an exact multiple of the number of
shares to be consolidated into a single share, issue to each such
holder credited as fully paid by way of capitalisation the minimum
number of shares required to round up his holding to such a
multiple (such issue being deemed to have been effected
immediately prior to consolidation); and the amount required to
pay up such shares shall be appropriated at the Board's discretion
from any of the sums standing to the credit of any of the
Company's reserve accounts (including share premium account and
capital redemption reserve) or to the credit of profit and loss
account and capitalised by applying the same in paying up such
shares; and
(d) for the purposes of any sale of consolidated shares pursuant to
paragraph (a) of this Article, the Board may authorise some person
to execute an instrument of transfer of the shares to, or in
accordance with, the directions of the purchaser, and the
transferee shall not be bound to see to the application of the
purchase money, nor shall his title to the shares be affected by
any irregularity in or invalidity of the proceedings in reference
to the sale.
47 Reduction of capital
47.1 Subject to the provisions of the Act and to any rights for the time being
attached to any shares, the Company may by special resolution reduce its
share capital or any capital redemption reserve or share premium account
in any manner.
47.2 Without prejudice to the generality of Article 47.1, the passing and/or
implementation of any special resolution for the reduction of the capital
paid up on any Ordinary Shares and for the cancellation of such Shares
accordingly for the purpose only of, and followed by, the application (as
nearly as may be) of the reserve then arising in or towards the payment
up in full of the same number of new Ordinary Shares denominated in a
different currency (which need not be any currency in which any issued
Ordinary Share is then denominated) but having the same rights as and
ranking pari passu in all respects with Ordinary Shares for the purposes
of these Articles and the distribution of such new Ordinary Shares
credited as fully paid to the holders of the Ordinary Shares so cancelled
in proportion to the number of such Shares then held by them respectively
shall not involve any variation or abrogation of the rights attached to
any Ordinary Shares cancelled as aforesaid (or of the rights attached to
any other Ordinary Share) and all Ordinary Shares whenever issued are
subject to the restriction that the passing and/or implementation of any
such resolution shall not require the consent or sanction of the holders
of any Ordinary Shares to be given in accordance with Article 49.1 or
otherwise.
48 Purchase of own shares
48.1 Subject to the provisions of the Act and to any rights for the time being
attached to any shares, the Company may purchase any of its own shares of
any class (including any redeemable shares). Any shares to be so
purchased may be selected in any manner whatsoever, provided that if at
the relevant date proposed for approval of the proposed purchase there
shall be in issue any shares of a class entitling the holders to convert
into equity share capital of the Company, then no such purchase shall
take place unless it has been sanctioned by an extraordinary resolution
passed at a separate general meeting (or meetings if there is more than
one class) of the holders of such class of convertible shares or the
trust deed or other instrument constituting, or the terms of issue of,
the convertible shares provide for the Company purchasing its own equity
shares.
VARIATION OF CLASS RIGHTS
49 Sanction to variation
49.1 Any of the rights or privileges for the time being attached to any share
or class of shares in the Company (and notwithstanding that the Company
may be or be about to be in liquidation) may be varied or abrogated in
such manner (if any) as may be provided by such rights or, in the absence
of any such provision, either with the consent in writing of the holders
of not less than three-quarters in nominal value of the issued shares of
the class, or with the sanction of an extraordinary resolution passed at
a separate general meeting of the holders of shares of the class duly
convened and held as hereinafter provided (but not otherwise). The
foregoing provisions of this Article shall apply also to the variation or
abrogation of the special rights attached to some only of the shares of
any class as if each group of shares of the class differently treated
formed a separate class the separate rights of which are to be varied.
49.2 Ordinary Shares whenever issued are subject to the restriction that the
rights attached to them may be varied or abrogated by a special
resolution of the Company without the separate consent or sanction (given
in accordance with Article 49.1 or otherwise) of the holders of any of
the Ordinary Shares provided that the rights attached to all the Ordinary
Shares are thereby varied or abrogated in like manner and to like extent
and accordingly neither the passing nor the implementation of any such
resolution constitutes a variation or abrogation of any of the rights
attached to any of the Ordinary Shares.
50 Class meetings
50.1 All the provisions in these Articles as to general meetings shall mutatis
mutandis apply to every meeting of the holders of any class of shares.
The quorum at every such meeting shall be two persons holding or
representing by proxy at least one-third of the nominal amount paid up on
the issued shares of the class. Every holder of shares of the class,
present in person or by proxy, may demand a poll. Each such holder shall
on a poll be entitled to one vote for every share of the class held by
him. If at any adjourned meeting of such holders such quorum as aforesaid
is not present, one person holding shares of the class who is present in
person or by proxy shall be a quorum.
51 Deemed variation
51.1 Subject to the terms of issue of or rights attached to any shares, the
rights or privileges attached to any class of shares shall be deemed to
be varied or abrogated by the reduction of the capital paid up on such
shares, but shall not be deemed to be varied or abrogated by the creation
or issue of any new shares ranking in priority to or pari passu in all
respects (save as to the date from which such new shares shall rank for
dividend) with or subsequent to those already issued or by the purchase
or redemption by the Company of its own shares in accordance with the
provisions of the Act and these Articles.
GENERAL MEETINGS
52 Annual general meetings
52.1 The Company shall in each year hold a general meeting as its annual
general meeting in addition to any other meetings in that year in
accordance with the requirements of the Act. The annual general meeting
shall be held at such time and in such place as the Board may determine.
53 Extraordinary general meetings
53.1 All general meetings, other than annual general meetings, shall be called
extraordinary general meetings. All extraordinary general meetings shall
be held at such time and in such place as the Board shall determine.
54 Convening of extraordinary general meetings
54.1 The Board may convene an extraordinary general meeting whenever it thinks
fit. An extraordinary general meeting shall also be convened on such
requisition, or in default may be convened by such requisitionists, as
provided by section 368 of the Act. At any meeting convened on such
requisition or by such requisitionists no business shall be transacted
except that stated by the requisition or proposed by the Board.
55 Notice of general meetings
55.1 An annual general meeting and an extraordinary general meeting convened
for the passing of a special resolution shall be convened by not less
than 21 clear days' notice in writing. All other extraordinary general
meetings shall be convened by not less than 14 clear days' notice in
writing.
55.2 Subject to the provisions of the Act, and notwithstanding that it is
convened by shorter notice than that specified in this Article 55, a
general meeting shall be deemed to have been duly convened if it is so
agreed:
(a) in the case of an annual general meeting, by all the members
entitled to attend and vote at the meeting; and
(b) in the case of any other meeting, by a majority in number of the
members having a right to attend and vote at the meeting, being a
majority together holding not less than 95 per cent. in nominal
value of the shares giving that right.
55.3 The notice shall specify:
(a) whether the meeting is an annual general meeting or an
extraordinary general meeting;
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(b) the place, the day and the time of the meeting;
(c) in the case of special business, the general nature of that business;
(d) if the meeting is convened to consider a special or extraordinary resolution, the intention to propose the resolution as such; and
(e) with reasonable prominence, that a member entitled to attend and
vote is entitled to appoint one or more proxies to attend and, on
a poll, vote instead of him and that a proxy need not also be a
member.
55.4 The notice shall be given to the members (other than any who, under the
provisions of these Articles or of any restrictions imposed on any
shares, are not entitled to receive notice from the Company), to the
Directors and to the Auditors.
55.5 For the purposes of section 376(2)(b) of the Act any amount paid up on
any Ordinary Share in any currency other than sterling shall be treated
as if it had been converted into sterling at such rate of exchange
prevailing at or about the date of the requisition as the Board shall
determine.
56 Omission to send notice
56.1 The accidental omission to send a notice of meeting or, in cases where it
is intended that it be sent out with the notice, an appointment of proxy
to, or the non-receipt of either by, any person entitled to receive the
same shall not invalidate the proceedings at that meeting.
57 Special business
57.1 All business that is transacted at a general meeting shall be deemed
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special, except the following transactions at an annual general meeting:
(a) the declaration of dividends;
(b) the receipt and consideration of the annual accounts, the reports of the Directors and the Auditors and any other documents required to be annexed to the annual accounts;
(c) the election or re-election of Directors;
(d) the re-appointment of the Auditors retiring (unless they were last appointed otherwise than by the Company in general meeting) and the fixing of the remuneration of the Auditors or the determination of the manner in which such remuneration is to be fixed.
PROCEEDINGS AT GENERAL MEETINGS
58 Quorum
58.1 No business shall be transacted at any general meeting unless a quorum is
present when the meeting proceeds to business. For all purposes the
quorum shall be not less than three persons entitled to attend and to
vote on the business to be transacted, each being a member or a proxy for
a member or a duly authorised representative of a corporation which is a
member.
59 If quorum not present
59.1 If within 15 minutes (or such longer interval as the Chairman in his
absolute discretion thinks fit) from the time appointed for the holding
of a general meeting a quorum is not present, or if during a meeting such
a quorum ceases to be present, the meeting shall stand adjourned to the
same day in the next week at the same time and place, or to such other
day and at such time and place as the Chairman (or, in default, the
Board) may determine. If at such adjourned meeting a quorum is not
present within 15 minutes from the time appointed for holding the
meeting, one person entitled to attend and to vote on the business to be
transacted, being a member or a proxy for a member or a duly authorised
representative of a corporation which is a member, shall be a quorum.
60 Chairman
60.1 The Chairman (if any) of the Board shall preside at every general meeting
of the Company. If there be no such Chairman or if at any meeting he
shall not be present within 5 minutes after the time appointed for
holding the meeting, or shall be unwilling to act as Chairman, a Deputy
Chairman shall if present and willing to act preside at such meeting. In
the event of two or more Deputy Chairmen being present, the Deputy
Chairman to act as Chairman shall be decided by those directors present.
If no Chairman or Deputy Chairman shall be so present and willing to act,
the Directors present shall choose one of their number to act or, if
there be only one Director present, he shall be Chairman if willing to
act. If there be no Director present and willing to act, the members
present and entitled to vote shall choose one of their number to be
Chairman of the meeting.
61 Director may attend and speak
61.1 A Director shall, notwithstanding that he is not a member, be entitled to
attend and speak at any general meeting and at any separate meeting of
the holders of any class of shares of the Company.
62 Power to adjourn
62.1 The Chairman may, with or without the consent of a meeting at which a
quorum is present, and shall, if so directed by the meeting, adjourn any
meeting from time to time (or indefinitely) and from place to place as
the meeting shall determine. However, without prejudice to any other
power which he may have under these Articles or at common law, the
Chairman may, without the need for the consent of the meeting, interrupt
or adjourn any meeting from time to time and from place to place or for
an indefinite period if he is of the opinion that it has become necessary
to do so in order to secure the proper and orderly conduct of the
meeting, to give all persons entitled to do so a reasonable opportunity
of speaking and voting at the meeting or to ensure that the business of
the meeting is properly disposed of.
63 Notice of adjourned meeting
63.1 Where a meeting is adjourned indefinitely, the Board shall fix the time
and place for the adjourned meeting. Whenever a meeting is adjourned for
14 days or more or indefinitely, seven clear days' notice at the least,
specifying the place, the day and time of the adjourned meeting and the
general nature of the business to be transacted, shall be given in the
same manner as in the case of an original meeting. Save as aforesaid, no
member shall be entitled to any notice of an adjournment or of the
business to be transacted at any adjourned meeting.
64 Business of adjourned meeting
64.1 No business shall be transacted at any adjourned meeting other than the
business which might properly have been transacted at the meeting from
which the adjournment took place.
65 Accommodation of members at meeting
65.1 The Board may, for the purpose of controlling the level of attendance at
any place specified for the holding of a general meeting, from time to
time make such arrangements (whether involving the issue of tickets, on a
basis intended to afford to all members otherwise entitled to attend such
meeting an equal opportunity of being admitted to the meeting, or the
imposition of some random means of selection, or otherwise, as the Board
shall in its absolute discretion consider to be appropriate) and may from
time to time vary any such arrangements or make new arrangements in place
therefor. The entitlement of any member or proxy to attend a general
meeting at such place shall be subject to any such arrangements as may be
for the time being in force and by the notice of meeting stated to apply
to that meeting. In the case of any general meeting to which such
arrangements apply the Board shall, and in the case of any other general
meeting the Board may, when specifying the place of the general meeting:
(a) direct that the meeting shall be held at a place specified in the
notice at which the Chairman of the meeting shall preside ("the
Principal Place"); and
(b) make arrangements for simultaneous attendance and participation at
other places by members otherwise entitled to attend the general
meeting but excluded therefrom under the provisions of this
Article or who wish to attend at any of such other places,
provided that persons attending at the Principal Place and at any
of such other places shall be able to see and hear and be seen and
heard by persons attending at the Principal Place and at such
other places.
Such arrangements for simultaneous attendance may include arrangements
for controlling the level of attendance in any manner aforesaid at any of
such other places, provided that they shall operate so that any such
excluded members as aforesaid are able to attend at one of such other
places. For the purposes of all other provisions of these Articles any
such meeting shall be treated as being held and taking place at the
Principal Place.
65.2 The Board may direct that any person wishing to attend any meeting should
submit to such searches or other security arrangements or restrictions as
the Board shall consider appropriate in the circumstances and shall be
entitled in its absolute discretion to refuse entry to any meeting to any
person who fails to submit to such searches or to otherwise comply with
such security arrangements or restrictions.
VOTING
66 Method of voting
66.1 At any general meeting a resolution put to a vote of the meeting shall be
decided on a show of hands, unless (before or on the declaration of the
result of the show of hands) a poll is duly demanded. Subject to the
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provisions of the Act, a poll may be demanded by:
(a) the Chairman of the meeting; or
(b) by at least five members present in person or by proxy and entitled to vote at the meeting; or
(c) a member or members present in person or by proxy representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting; or
(d) a member or members present in person or by proxy holding shares
conferring a right to vote at the meeting, being shares on which
an aggregate sum has been paid up equal to not less than one-tenth
of the total sum paid up on all the shares conferring that right.
67 Chairman's declaration conclusive on show of hands
67.1 Unless a poll is duly demanded and the demand is not withdrawn, a
declaration by the Chairman of the meeting that a resolution has on a
show of hands been carried, or carried unanimously or by a particular
majority, or lost, or not carried by a particular majority, and an entry
to that effect in the book containing the minutes of proceedings of the
Company, shall be conclusive evidence thereof, without proof of the
number or proportion of the votes recorded in favour of or against such
resolution.
68 Objection to error in voting
68.1 No objection shall be raised to the qualification of any voter or to the
counting of, or failure to count, any vote, except at the meeting or
adjourned meeting at which the vote objected to is given or tendered or
at which the error occurs. Any objection or error shall be referred to
the Chairman of the meeting and shall only vitiate the decision of the
meeting on any resolution if the Chairman decides that the same is of
sufficient magnitude to vitiate the resolution or may otherwise have
affected the decision of the meeting. The decision of the Chairman on
such matters shall be final and conclusive.
69 Amendment to resolutions
69.1 If an amendment shall be proposed to any resolution under consideration
but shall in good faith be ruled out of order by the Chairman of the
meeting, any error in such ruling shall not invalidate the proceedings on
the substantive resolution. In the case of a resolution duly proposed as
a special or extraordinary resolution, no amendment thereto (other than a
mere clerical amendment to correct a patent error) may in any event be
considered or voted on.
70 Procedure on a poll
70.1 Any poll duly demanded on the election of a Chairman of a meeting or on
any question of adjournment shall be taken forthwith. A poll duly
demanded on any other matter shall be taken in such manner (including the
use of ballot or voting papers or tickets) and at such time and place,
not being more than 30 days from the date of the meeting or adjourned
meeting at which the poll was demanded, as the Chairman shall direct. No
notice need be given of a poll not taken immediately if the time and
place at which it is to be taken are announced at the meeting at which it
is demanded. In any other case at least seven clear days' notice shall be
given specifying the time and place at which the poll is to be taken. The
result of the poll shall be deemed to be the resolution of the meeting at
which the poll was demanded.
70.2 The demand for a poll (other than on the election of a Chairman or a
resolution for adjourning the meeting) shall not prevent the continuance
of the meeting for the transaction of any business other than the
question on which a poll has been demanded. If a poll is demanded before
the declaration of the result on a show of hands and the demand is duly
withdrawn, the meeting shall continue as if the demand had not been made.
70.3 The demand for a poll may, before the poll is taken, be withdrawn, but
only with the consent of the Chairman. A demand so withdrawn shall
validate the result of a show of hands declared before the demand was
made and, in the case of a poll demanded but duly withdrawn before the
declaration of the result of a show of hands, the meeting shall continue
as if the demand had not been made.
70.4 On a poll votes may be given in person or by proxy. A member entitled to
more than one vote need not, if he votes, use all his votes or cast all
the votes he uses in the same way.
71 Votes of members
71.1 Subject to the provisions of the Act and to any special terms as to
voting on which any shares may have been issued or may for the time being
be held and to any suspension or abrogation of voting rights pursuant to
these Articles, at any general meeting every member who is present in
person shall on a show of hands have one vote and every member present in
person or by proxy shall on a poll have one vote for every Ordinary Share
of which he is the holder.
71.2 If two or more persons are joint holders of a share, then in voting on
any question the vote of the senior who tenders a vote, whether in person
or by proxy, shall be accepted to the exclusion of the votes of the other
joint holders. For this purpose seniority shall be determined by the
order in which the names of the holders stand in the Register.
71.3 Where in England or elsewhere a receiver or other person (by whatever
name called) has been appointed by any court claiming jurisdiction in
that behalf to exercise powers with respect to the property or affairs of
any member on the ground (however formulated) of mental disorder, the
Board may in its absolute discretion, on or subject to production of such
evidence of the appointment as the Board may require, permit such
receiver or other person to vote in person or, on a poll, by proxy on
behalf of such member at any general meeting. Evidence to the
satisfaction of the Board of the authority of the person claiming to
exercise the right to vote shall be deposited at the Office, or deposited
or received at such other place or address as is specified in accordance
with these Articles for the deposit or receipt of appointments of proxy,
not less than 48 hours before the time appointed for holding the meeting
or adjourned meeting at which the right to vote is to be exercised, and
in default the right to vote shall not be exercisable.
72 Casting vote
72.1 In the case of an equality of votes, whether on a show of hands or on a
poll, the Chairman of the meeting at which the show of hands takes place
or at which the poll was demanded shall be entitled to a second or
casting vote in addition to any other vote that he may have.
73 Restriction on voting rights for unpaid calls etc.
73.1 No member shall, unless the Board otherwise determines, be entitled to
vote at a general meeting or at any separate meeting of the holders of
any class of shares, either in person or by proxy, in respect of any
share held by him or to exercise any right as a member unless all calls
or other sums presently payable by him in respect of that share in the
Company have been paid.
74 Voting by proxy
74.1 Any person (whether a member of the Company or not) may be appointed to
act as a proxy. The appointment of a proxy shall not preclude a member
from attending and voting in person at the meeting in respect of which
the proxy is appointed or at any adjournment thereof.
75 Form of proxy
75.1 An appointment of a proxy shall:
(a) be in writing and, if the Board in its absolute discretion
determines, may be contained in an electronic communication, in
any such case in any common form or in such other form as the
Board may approve and: (i) if in writing but not contained in an
electronic communication, under the hand of the appointor or of
his attorney duly authorised in writing or, if the appointor is a
corporation, under its common seal or under the hand of some
officer or attorney duly authorised in that behalf; or (ii) in the
case of an appointment contained in an electronic communication,
submitted by or on behalf of the appointor, subject to such terms
and conditions and authenticated in such manner as the Board may
in its absolute discretion determine;
(b) be deemed (subject to any contrary direction contained in the
same) to confer authority to demand or join in demanding a poll
and to vote on any resolution or amendment of a resolution put to
the meeting for which it is given, as the proxy thinks fit, but
shall not confer any further right to speak at the meeting, except
with the permission of the Chairman of the meeting or as otherwise
determined by the Board where the relevant shares are held by a
Depositary; and
(c) unless the contrary is stated therein, be valid as well for any
adjournment of the meeting as for the meeting to which it relates.
76 Deposit or receipt of proxy
76.1 The appointment of a proxy and the power of attorney or other authority
(if any) under which it is signed, or a copy of such authority certified
notarially or in some other way approved by the Board may:
(a) in the case of an instrument in writing (including, whether or not
the appointment of proxy is contained in an electronic
communication, any such power of attorney or other authority), be
deposited at the Office or at such other place or places and in
such location or locations as is or are specified in the notice
convening the meeting or in any appointment of proxy sent out by
the Company in relation to the meeting not less than 48 hours
before the time of the holding of the meeting or adjourned meeting
at which the person named in the instrument proposes to vote; or
(aa) in the case of an appointment contained in an electronic
communication, where an address has been specified for the purpose
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of receiving communications:
(A) in the notice convening the meeting; or
(B) in any instrument of proxy sent out by the Company in relation to the meeting; or
(C) in any invitation contained in an electronic communication to appoint a proxy issued by the Company in relation to the meeting,
be received at such address not less than 48 hours before the time for holding the meeting or adjourned meeting at which the person named in the appointment proposes to vote; or
(b) in the case of a poll taken more than 48 hours after it is demanded, be deposited or received as aforesaid after the poll has been demanded and not less than 24 hours before the time appointed for the taking of the poll; or
(c) where the poll is not taken forthwith but is taken not more than
48 hours after it was demanded, be delivered at the meeting at
which the poll was demanded to the Chairman of the meeting or to
any Director, the Secretary or some person authorised for the
purpose by the Secretary
and an appointment of proxy not deposited, delivered or received in a
manner so permitted shall be invalid. No appointment of proxy shall be
valid after the expiry of 12 months from the date named in it as the date
of its execution or the date of its submission, except at an adjourned
meeting or on a poll demanded at a meeting or an adjourned meeting in
cases where the meeting was originally held within 12 months from such
date.
77 More than one proxy may be appointed
77.1 A member may appoint more than one proxy to attend on the same occasion.
When two or more valid but differing appointments of proxy are delivered
or received in respect of the same share for use at the same meeting and
in respect of the same matter, the one which is last validly delivered or
received (regardless of its date or of the date of its execution or
submission) shall be treated as replacing and revoking the other or
others as regards that share. If the Company is unable to determine which
appointment was last validly delivered or received, none of them shall be
treated as valid in respect of that share.
78 Board may supply proxy cards
78.1 The Board may at the expense of the Company send or make available, by
post, electronic communication or otherwise, appointments of proxy
(reply-paid or otherwise) to members for use at any general meeting(s) or
at any separate meeting(s) of the holders of any class of shares, either
in blank or nominating in the alternative any one or more of the
Directors or any other persons. If for the purpose of any meeting
invitations to appoint as proxy a person or one of a number of persons
specified in the invitations are issued at the expense of the Company,
such invitations shall subject to Article 56 be issued to all (and not
some only) of the members entitled to be sent a notice of the meeting and
to vote thereat by proxy.
79 Revocation of proxy
79.1 A vote given or poll demanded in accordance with the terms of an
appointment of proxy shall be valid notwithstanding the death or mental
disorder of the principal or the revocation of the appointment of proxy,
or of the authority under which the appointment of proxy was executed or
submitted, or the transfer of the share in respect of which the
appointment of proxy is given, unless notice in writing of such death,
mental disorder, revocation or transfer shall have been received by the
Company at the Office, or at such other place or places or address as has
or have been appointed for the deposit or receipt of appointments of
proxy, at least 48 hours before the commencement of the meeting or
adjourned meeting or the taking of the poll at which the appointment of
proxy is used.
80 Corporate representative
80.1 A corporation (whether or not a company within the meaning of the Act)
which is a member may, by resolution of its directors or other governing
body, authorise such person (or, if such corporation is a Depositary
acting in its capacity as such, persons) as it thinks fit to act as its
representative (or, as the case may be, representatives) at any meeting
of the Company or at any separate meeting of the holders of any class of
shares. Any person so authorised shall be entitled to exercise the same
powers on behalf of the corporation (in respect of that part of the
corporation's holdings to which the authority relates) as the corporation
could exercise if it were an individual member. The corporation shall for
the purposes of these Articles be deemed to be present in person at any
such meeting if a person so authorised is present at it; and all
references to attendance and voting in person shall be construed
accordingly. A Director, the Secretary or some person authorised for the
purpose by the Secretary may require the representative to produce a
certified copy of the resolution so authorising him before permitting him
to exercise his powers.
81 Failure to disclose interests in shares
81.1 If a member, or any other person appearing to be interested in shares
held by that member, has been issued with a notice pursuant to section
212 of the Act and has failed in relation to any shares ("the default
shares", which expression includes shares issued after the date of such
notice in right of those shares) to give the Company the information
thereby required within the prescribed period from the date of the
notice, the following sanctions shall apply unless the Board otherwise
determines:
(a) the member shall not be entitled in respect of the default shares
to be present or to vote (either in person or by representative or
proxy) at any general meeting or at any separate meeting of the
holders of any class of shares or on any poll or to exercise any
other right conferred by membership in relation to any such
meeting or poll; and
(b) where the default shares represent at least 0.25 per cent. in
nominal value of the issued shares of their class:
(i) any dividend or other money payable in respect of the
shares shall be withheld by the Company, which shall not
have any obligation to pay interest on it, and the member
shall not be entitled to elect, pursuant to Article 151, to
receive shares instead of that dividend; and
(ii) no transfer, other than an excepted transfer, of any shares
held by the member shall be registered unless:
(1) the member is not himself in default as regards
supplying the information required; and
(2) the member proves to the satisfaction of the Board
that no person in default as regards supplying such
information is interested in any of the shares the
subject of the transfer.
81.2 Where the sanctions under paragraph 81.1 of this Article apply in
relation to any shares, they shall cease to have effect:
(a) if the shares are transferred by means of an excepted transfer but
only in respect of the shares transferred; or
(b) at the end of the period of one week (or such shorter period as
the Board may determine) following receipt by the Company of the
information required by the applicable notice or notices mentioned
in that paragraph and the Board being fully satisfied that such
information is full and complete.
81.3 Where, on the basis of information obtained from a member in respect of
any share held by him, the Company issues a notice pursuant to section
212 of the Act to any other person, it shall at the same time send a copy
of the notice to the member, but the accidental omission to do so, or the
non-receipt by the member of the copy, shall not invalidate or otherwise
affect the application of paragraph 81.1 above.
81.4 For the purposes of this Article 81:
(a) a person, other than the member holding a share, shall be treated
as appearing to be interested in any shares (or, if applicable,
rights to subscribe for, or convert into, shares) if the member
has informed the Company that the person is, or may be, so
interested, or if the Company (after taking account of any
information obtained from the member or from a notice pursuant to
section 212 of the Act or from anyone else) knows or has
reasonable cause to believe that the person is, or may be, or has
been so interested;
(b) "interested" shall be construed in accordance with section 212 of
the Act;
(c) reference to a person having failed to give the Company the
information required by a notice, or being in default as regards
supplying such information, includes reference (i) to his having
failed or refused to give all or any part of it and (ii) to his
having given information which he knows to be false in a material
particular or having recklessly given information which is false
in a material particular;
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(d) the "prescribed period" means 14 days; and
(e) an "excepted transfer" means, in relation to any shares held by a member:
(i) a transfer by way of or pursuant to acceptance of a take-over offer for the Company (within the meaning of section 428 of the Act); or
(ii) a transfer in consequence of a sale made through a
recognised investment exchange (as defined in section 207
of the Financial Services Act 1986) or any other stock
exchange outside the United Kingdom on which the Company's
shares are normally traded; or
(iii) a transfer which is shown to the satisfaction of the Board
to be made in consequence of a sale of the whole of the
beneficial interest in the shares to a person who is
unconnected with the member and with any other person
appearing to be interested in the shares.
81.5 Where any person appearing to be interested in the default shares has
been duly served with a notice under section 212 of the Act and the
default shares which are the subject of such notice or notices are held
by a Depositary the provisions of this Article shall be treated as
applying only to such default shares held by the Depositary and not (in
the absence of any other reason why they should be so treated) to any
other shares held by the Depositary.
81.6 Where the member on which a notice under section 212 of the Act is served
is a Depositary acting in its capacity as such the obligations of the
Depositary as a member of the Company shall be limited to disclosing to
the Company such information relating to any person appearing to be
interested in the shares held by it as has been recorded by it pursuant
to the arrangements entered into by the Company or approved by the Board
pursuant to which it was appointed as a Depositary or otherwise.
81.7 Nothing contained in this Article 81 shall limit the power of the Board
under section 216 of the Act.
UNTRACED MEMBERS
82 Power of sale
82.1 The Company shall be entitled to sell any share of a member, or any share
to which a person is entitled by transmission, if and provided that:
(a) during the period of 12 years prior to the date of the publication
of the advertisements referred to in sub-paragraph (b) below (or,
if published on different dates, the earlier or earliest thereof)
no cheque, order or warrant in respect of such share sent by the
Company through the post in a pre-paid envelope addressed to the
member or to the person entitled by transmission to the share, at
his address on the Register or other last known address given by
the member or person to which cheques, orders or warrants in
respect of such share are to be sent has been cashed and the
Company has received no communications in respect of such share
from such member or person, provided that during such period of 12
years the Company has paid at least three dividends (whether
interim or final) and no such dividend has been claimed by the
person entitled to it;
(b) on expiry of the said period of 12 years the Company has given
notice of its intention to sell such share by advertisements
appearing in one national newspaper published in the United
Kingdom and one newspaper circulating in the area of the address
on the Register or other last known address of the member or the
person entitled by transmission to the share or the address for
the service of notices notified under Article 160.3 (unless any
such address shall be in Hong Kong), and in one leading English
language daily newspaper and one leading Chinese language daily
newspaper printed and circulating in Hong Kong;
(c) the said advertisements, if not published on the same day, shall
have been published within 30 days of each other;
(d) during the further period of three months following the date of
publication of the said advertisements (or, if published on
different dates, the later or latest thereof) and prior to the
exercise of the power of sale the Company has not received any
communication in respect of such share from the member or person
entitled by transmission; and
(e) if shares of the class concerned are listed or dealt in on any
stock exchange, the Company has given notice to that exchange of
its intention to make such sale.
82.2 The manner, timing and terms of any sale of shares pursuant to this
Article (including but not limited to the price or prices at which the
same is made) shall be such as the Board determines, based upon advice
from such bankers, brokers or other persons as the Board considers
appropriate consulted by it for the purposes, to be reasonably
practicable having regard to all the circumstances including the number
of shares to be disposed of and the requirement that the disposal be made
without delay; and the Board shall not be liable to any person for any of
the consequences of reliance on such advice.
82.3 To give effect to any sale of shares pursuant to this Article the Board
may authorise some person to transfer the shares in question and may
enter the name of the transferee in respect of the transferred shares in
the Register notwithstanding the absence of any share certificate being
lodged in respect thereof and may issue a new certificate to the
transferee and an instrument of transfer executed by that person shall be
as effective as if it had been executed by the holder of, or person
entitled by transmission to, the shares. The purchaser shall not be bound
to see to the application of the purchase moneys nor shall his title to
the shares be affected by any irregularity or invalidity in the
proceedings relating to the sale.
82.4 If during the period of 12 years referred to in Article 82.1 above, or
during any period ending on the date when all the requirements of
paragraphs (a) to (d) of Article 82.1 above have been satisfied, any
additional shares have been issued in respect of those held at the
beginning of, or previously so issued during, any such period and all the
requirements of paragraphs (b) to (d) of Article 82.1 above have been
satisfied in regard to such additional shares, the Company shall also be
entitled to sell the additional shares.
83 Application of proceeds of sale
83.1 The Company shall account to the member or other person entitled to such
share for the net proceeds of such sale by carrying all moneys in respect
thereof to a separate account. The Company shall be deemed to be a debtor
to, and not a trustee for, such member or other person in respect of such
moneys. Moneys carried to such separate account may either be employed in
the business of the Company or invested in such investments as the Board
may from time to time think fit. No interest shall be payable to such
member or other person in respect of such moneys and the Company shall
not be required to account for any money earned on them.
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APPOINTMENT, RETIREMENT AND
REMOVAL OF DIRECTORS
84 Number of Directors
84.1 Unless and until otherwise determined by the Company by ordinary
resolution, the number of Directors (other than any alternate Directors)
shall be not less than five not more than twenty five.
85 Power of Company to appoint Directors
85.1 Subject to the provisions of these Articles, the Company may by ordinary
resolution appoint a person who is willing to act to be a Director,
either to fill a vacancy or as an addition to the existing Board, but the
total number of Directors shall not exceed any maximum number fixed in
accordance with these Articles.
86 Power of Board to appoint Directors
86.1 Without prejudice to the power of the Company to appoint any person to be
a Director pursuant to these Articles, the Board shall have power at any
time to appoint any person who is willing to act as a Director, either to
fill a vacancy or as an addition to the existing Board, but the total
number of Directors shall not exceed any maximum number fixed in
accordance with these Articles. Any Director so appointed shall retire at
the annual general meeting of the Company next following such appointment
and shall then be eligible for re-election but shall not be taken into
account in determining the number of Directors who are to retire by
rotation at such meeting.
87 Appointment of executive Directors
87.1 Subject to the provisions of the Act, the Board may from time to time
appoint one or more of its body to hold any employment or executive
office for such term (subject to the provisions of the Act) and subject
to such other conditions as the Board thinks fit. The Board may revoke or
terminate any such appointment without prejudice to any claim for damages
for breach of contract between the Director and the Company.
88 Eligibility of new Directors
88.1 No person, other than a Director retiring (by rotation or otherwise),
shall be appointed or re-appointed a Director at any general meeting
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unless:
(a) he is recommended by the Board; or
(b) not less than seven nor more than 42 clear days before the date
appointed for the meeting, notice duly executed by a member (other
than the person to be proposed) qualified to vote at the meeting
has been given to the Company of the intention to propose that
person for appointment or re-appointment, stating the particulars
which would, if he were so appointed or re-appointed, be required
to be included in the Company's register of Directors, together
with notice executed by that person of his willingness to be
appointed or re-appointed, is lodged at the Office.
89 Share qualification
89.1 A Director shall not be required to hold any shares of the Company.
90 Resolution for appointment
90.1 A resolution for the appointment of two or more persons as Directors by a
single resolution shall be void unless an ordinary resolution that it
shall be so proposed has first been agreed to by the meeting without any
vote being given against it.
91 Retirement by rotation
91.1 At each annual general meeting of the Company one-third of the Directors
who are subject to retirement by rotation or, if their number is not
three or a multiple of three, the number nearest to but not exceeding
one-third shall retire from office.
91.2 In addition to the Directors required to retire by rotation under Article
91.1, there shall also be required to retire by rotation any Director who
at an annual general meeting of the Company shall have been a Director at
each of the preceding two annual general meetings of the Company and who
was not elected or re-elected at either such annual general meeting and
who has not otherwise ceased to be a Director (either by resignation,
retirement, removal or otherwise) and been re-elected by general meeting
of the Company at or since either such annual general meeting.
92 Directors subject to retirement by rotation
92.1 Subject to the provisions of the Act and of these Articles, the Directors
to retire by rotation at each annual general meeting shall include, so
far as necessary to obtain the number required, first, any Director who
wishes to retire and not offer himself for re-election and secondly,
those Directors who have been longest in office since their last
appointment or re-appointment. As between two or more Directors who have
been in office an equal length of time, the Director to retire shall, in
default of agreement between them, be determined by lot.
93 Position of retiring Director
93.1 A Director who retires at an annual general meeting (whether by rotation
or otherwise) may, if willing to act, be re-elected. If he is not
re-elected or deemed to have been re-appointed, he shall retain office
until the meeting appoints someone in his place or, if it does not do so,
until the end of the meeting.
94 Deemed re-appointment
94.1 At any general meeting at which a Director retires by rotation the
Company may fill the vacancy and, if it does not do so, the retiring
Director shall, if willing, be deemed to have been re-appointed unless it
is expressly resolved not to fill the vacancy or a resolution for the
re-appointment of the Director is put to the meeting and lost.
95 Retirement on account of age
95.1 Section 293 of the Act shall apply to the Company.
96 Removal by ordinary resolution
96.1 The Company may by ordinary resolution remove any Director before the
expiration of his period of office in accordance with the Act, but
without prejudice to any claim for damages which he may have for breach
of any contract of service between him and the Company, and may (subject
to these Articles) by ordinary resolution appoint another person who is
willing to act to be a Director in his place. Any person so appointed
shall be treated, for the purposes of determining the time at which he or
any other Director is to retire, as if he had become a Director on the
day on which the person in whose place he is appointed was last appointed
or re-appointed a Director.
97 Vacation of office by Director
97.1 Without prejudice to the provisions for retirement (by rotation or
otherwise) contained in these Articles, the office of a Director shall be
vacated if:
(a) he resigns by notice in writing delivered to the Secretary at the
Office or Head Office of the Company or tendered at a Board
meeting;
(b) he ceases to be a Director by virtue of any provision of the Act,
is removed from office pursuant to these Articles or becomes
prohibited by law from being a Director;
(c) he becomes bankrupt, has an interim receiving order made against
him, makes any arrangement or compounds with his creditors
generally or applies to the court for an interim order under
section 253 of the Insolvency Act 1986 in connection with a
voluntary arrangement under that Act;
(d) an order is made by any court of competent jurisdiction on the
ground (howsoever formulated) of mental disorder for his detention
or for the appointment of a guardian or receiver or other person
to exercise powers with respect to his affairs or he is admitted
to hospital in pursuance of an application for admission for
treatment under the Mental Health Act 1983 or equivalent
legislation in any jurisdiction and the Board resolves that his
office be vacated;
(e) both he and his alternate Director appointed pursuant to the
provisions of these Articles (if any) are absent, without the
permission of the Board, from Board meetings for six consecutive
months and the Board resolves that his office be vacated;
(f) he is requested to resign by notice in writing addressed to him at
his last known address and signed by all his co-Directors (without
prejudice to any claim for damages which he may have for breach of
any contract of service between him and the Company); or
(g) in the circumstances referred to in Article 95.1. 98 Resolution as
to vacancy conclusive
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98.1 A resolution of the Board declaring a Director to have vacated office under the terms of Article 97 shall be conclusive as to the fact and grounds of vacation stated in the resolution.
ALTERNATE DIRECTORS
99 Appointments
99.1 Each Director (other than an alternate Director) may, by notice in
writing delivered to the Secretary at the Office or the Head Office, or
in any other manner approved by the Board, appoint any other Director or
any person approved for that purpose by the Board and willing to act, to
be his alternate.
99.2 No appointment of an alternate Director shall be effective until his
consent to act as a Director in the form prescribed by the Act has been
received at the Office.
99.3 An alternate Director need not hold a share qualification and shall not
be counted in reckoning any maximum number of Directors allowed by these
Articles.
100 Participation in Board meetings
100.1 Every alternate Director shall (subject to his giving to the Company an
address within the United Kingdom or Hong Kong (or such other country or
territory as the Board may from time to time determine) at which notices
may be served on him) be entitled to receive notice of all meetings of
the Board and all committees of the Board of which his appointor is a
member and, in the absence from such meetings of his appointor, to attend
and vote at such meetings and to exercise all the powers, rights, duties
and authorities of his appointor. A Director acting as alternate Director
shall have a separate vote at Board meetings for each Director for whom
he acts as alternate Director, but he shall count as only one for the
purpose of determining whether a quorum is present.
101 Alternate Director responsible for own acts
101.1 Every person acting as an alternate Director shall be an officer of the
Company, shall alone be responsible to the Company for his own acts and
defaults and shall not be deemed to be the agent of the Director
appointing him.
102 Interests of alternate Director
102.1 An alternate Director shall be entitled to contract and be interested in
and benefit from contracts or arrangements with the Company and to be
repaid expenses and to be indemnified to the same extent mutatis mutandis
as if he were a Director. However, he shall not be entitled to receive
from the Company any fees for his services as alternate, except only such
part (if any) of the fee payable to his appointor as such appointor may
by notice in writing to the Company direct. Subject to this Article, the
Company shall pay to an alternate Director such expenses as might
properly have been paid to him if he had been a Director.
103 Revocation of appointment
103.1 An alternate Director shall cease to be an alternate Director:
(a) if his appointor ceases for any reason to be a Director, provided
that if any Director retires but is re-appointed or deemed to be
re-appointed at the same meeting, any valid appointment of an
alternate Director which was in force immediately before his
retirement shall remain in force; or
(b) if any event happens in relation to him which, if he were a
Director otherwise appointed, would cause him to vacate office; or
(c) if his appointor revokes the appointment by notice in writing
delivered to the Secretary at the Office or the Head Office.
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DIRECTORS' REMUNERATION,
EXPENSES AND PENSIONS
104 Directors' fees
104.1 The Directors (other than alternate Directors) shall be entitled to
receive by way of fees for their services as Directors such sum (or its
equivalent in any other currency at such rate of exchange as the Board
shall determine) and on such terms as the Company in general meeting may
from time to time determine. Any sum so determined may be an aggregate
sum in respect of the fees for all Directors or a sum in respect of the
fees for each individual Director provided that, in the case of an
aggregate sum, such sum shall, subject to any special directions of the
Company in general meeting, be divided among the Directors in such
proportions and in such manner as the Board may from time to time decide.
Any fees payable pursuant to this Article shall be distinct from any
salary, remuneration or other amounts payable to a Director pursuant to
any other provisions of these Articles and shall accrue from day to day.
105 Expenses
105.1 Each Director shall be entitled to be repaid all reasonable travelling,
hotel and other expenses properly incurred by him in or about the
performance of his duties as Director, including any expenses incurred in
attending meetings of the Board or any Committee of the Board or general
meetings or separate meetings of the holders of any class of shares or of
debentures of the Company.
106 Additional remuneration
106.1 If by arrangement with the Board any Director shall perform or render any
special duties or services outside his ordinary duties as a Director, he
may be paid such reasonable additional remuneration (whether by way of
salary, commission, participation in profits or otherwise) as the Board
may from time to time determine.
107 Remuneration of executive Directors
107.1 The salary or remuneration of any Director appointed to hold any
employment or executive office in accordance with the provisions of these
Articles may be either a fixed sum of money, or may altogether or in part
be governed by business done or profits made or otherwise determined by
the Board, and may be in addition to or in lieu of any fee payable to him
for his services as Director pursuant to these Articles.
108 Pensions
108.1 The Board may exercise all the powers of the Company to provide pensions
or other retirement or superannuation benefits and to provide death or
disability benefits or other allowances or gratuities (whether by
insurance or otherwise) for any person who is or has at any time been a
Director of the Company or any company which is a subsidiary company of
or allied to or associated with the Company or any such subsidiary or any
predecessor in business of the Company or of any such subsidiary, and for
any member of his family (including a spouse or former spouse) and any
person who is or was dependent on him. For such purpose the Board may
establish, maintain, subscribe and contribute to any scheme, trust or
fund and pay premiums. The Board may procure any of such matters to be
done by the Company either alone or in conjunction with any other person.
Any Director or former Director shall be entitled to receive and retain
for his own benefit any pension or other benefit provided under this
Article and shall not be obliged to account for it to the Company.
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POWERS AND DUTIES OF THE BOARD
109 Powers of the Board
109.1 Subject to the provisions of the Act, the Memorandum of Association of
the Company and these Articles and to any directions given by special
resolution of the Company, the business of the Company shall be managed
by the Board, which may exercise all the powers of the Company, whether
relating to the management of the business or not. No alteration of the
Memorandum of Association or of these Articles and no such direction
given by the Company shall invalidate any prior act of the Board which
would have been valid if such alteration had not been made or such
direction had not been given. Provisions contained elsewhere in these
Articles as to any specific power of the Board shall not be deemed to
limit the general powers given by this Article.
110 Powers of Directors being less than minimum number
110.1 If the number of Directors is less than the minimum for the time being
prescribed by these Articles, the remaining Director or Directors shall
act only for the purposes of appointing an additional Director or
Directors to make up such minimum or of convening a general meeting of
the Company for the purpose of making such appointment. If there are no
Director or Directors able or willing to act, any two members may summon
a general meeting for the purpose of appointing Directors. Subject to the
provisions of these Articles, any additional Director so appointed shall
hold office only until the dissolution of the annual general meeting of
the Company next following such appointment unless he is re-elected
during such meeting.
111 Powers of executive Directors
111.1 The Board may from time to time:
(a) delegate or entrust to and confer on any Director holding
executive office (including the Chairman or a Deputy Chairman or a
Chief Executive or a Managing Director) such of its powers,
authorities and discretions (with power to sub-delegate) for such
time, on such terms and subject to such conditions as it thinks
fit; and
(b) revoke, withdraw, alter or vary all or any of such powers.
112 Delegation to committees
112.1 The Board may delegate any of its powers, authorities and discretions
(with power to sub-delegate) for such time on such terms and subject to
such conditions as it thinks fit to any committee consisting of one or
more Directors and (if thought fit) one or more other persons, provided
that:
(a) a majority of the members of a committee shall be Directors or
alternate Directors; and
(b) no resolution of a committee shall be effective unless a majority
of those present when it is passed are Directors (or their
alternates).
112.2 The Board may confer such powers either collaterally with, or to the
exclusion of and in substitution for, all or any of the powers of the
Board in that respect and may from time to time revoke, withdraw, alter
or vary any of such powers and discharge any such committee in whole or
in part. Insofar as any power, authority or discretion is so delegated,
any reference in these Articles to the exercise by the Board of such
power, authority or discretion shall be construed as if it were a
reference to the exercise of such power, authority or discretion by such
committee.
113 Local management
113.1 The Board may establish any local or divisional boards or agencies for
managing any of the affairs of the Company in any specified locality,
either in the United Kingdom or Hong Kong or elsewhere, and may appoint
any persons to be members of such local or divisional board, or any
managers or agents, and may fix their remuneration. The Board may
delegate to any local or divisional board, manager or agent so appointed
any of its powers, authorities and discretions (with power to
sub-delegate) and may authorise the members for the time being of any
such local or divisional board, or any of them, to fill any vacancies and
to act notwithstanding vacancies; and any such appointment or delegation
may be made for such time, on such terms and subject to such conditions
as the Board may think fit. The Board may confer such powers either
collaterally with, or to the exclusion of and in substitution for, all or
any of the powers of the Board in that respect and may from time to time
revoke, withdraw, alter or vary all or any of such powers. Subject to any
terms and conditions expressly imposed by the Board, the proceedings of
any local or divisional board or agency with two or more members shall be
governed by such of these Articles as regulate the proceedings of the
Board, so far as they are capable of applying.
114 Power of attorney
114.1 The Board may by power of attorney or otherwise appoint any person or
persons to be the agent of the Company and may delegate to any such
person or persons any of its powers, authorities and discretions (with
power to sub-delegate), in each case for such purposes and for such time,
on such terms (including as to remuneration) and subject to such
conditions as it thinks fit. The Board may confer such powers either
collaterally with, or to the exclusion of and in substitution for, all or
any of the powers of the Board in that respect and may from time to time
revoke, withdraw, alter or vary any of such powers.
115 Associate directors
115.1 The Board may appoint any person (not being a Director) to any office or
employment having a designation or title including the word "director" or
attach to any existing office or employment with the Company such
designation or title and may terminate any such appointment or the use of
such designation or title. The inclusion of the word "director" in the
designation or title of any such office or employment shall not imply
that such person is, or is deemed to be, or is empowered in any respect
to act as, a Director for any of the purposes of the Act or these
Articles.
116 Exercise of voting power
116.1 The Board may exercise or cause to be exercised the voting power
conferred by the shares in any other company held or owned by the
Company, or any power of appointment to be exercised by the Company, in
such manner in all respects as it thinks fit (including the exercise of
the voting power or power of appointment in favour of the appointment of
any Director as a director or other officer or employee of such company
or in favour of the payment of remuneration to the directors, officers or
employees of such company).
117 Provision for employees
117.1 The Board may exercise any power conferred on the Company by the Act to
make provision for the benefit of persons employed or formerly employed
by the Company or any of its subsidiaries in connection with the
cessation or the transfer to any person of the whole or part of the
undertaking of the Company or that subsidiary.
118 Registers of members
118.1 Subject to the provisions of the Act, the Board shall keep the following
registers of its members and shall enter therein the particulars
specified in paragraph 118.2 of this Article:--
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(a) in the United Kingdom, the Principal Register;
(b) in Hong Kong, a register of members resident in Hong Kong which shall be called "the Hong Kong Overseas Branch Register";
(c) in any such countries or territories as the Board may from time to
time in its sole discretion determine, a register of members
resident in such country or territory, each such register being
hereinafter referred to as an "Overseas Branch Register".
118.2 The following particulars shall be entered or stored in the registers
referred to in paragraph 118.1 of this Article:--
(a) the names and addresses of the members respectively entitled and
requiring to be registered in one of such registers, and a
statement of the shares held by each member distinguishing each
share by its number so long as the share has a number, and where
the Company has more than one class of share, by its class and a
statement of the amount paid or agreed to be considered as paid on
the shares of each member; Provided that no member shall be
entitled to be entered in more than one register at the same time
in respect of the same shares;
(b) the date at which each member was entered in the register as a
member in respect of any share or shares;
(c) the date at which each member ceased to be a member in respect of
any share or shares.
118.3 Subject to section 362 and Schedule 14 of the Act, the Board may make and
vary such regulations as it thinks fit respecting the keeping of any of
the registers referred to in paragraph 118.1 and such registers may be
closed from time to time as provided for by Article 37.
118.4 The Board may at any time serve a written notice on a member who is
registered in the Hong Kong Overseas Branch Register or in any Overseas
Branch Register requiring him to provide to the Board any information,
supported by a declaration and by such other evidence as the Board may
require, for the purpose of determining whether that member is resident
in Hong Kong or in the country or territory in which an Overseas Branch
Register is situated. If such information and evidence is not provided
within 21 days of the date of such written notice or the information and
evidence provided shows that the member is not so resident or is, in the
opinion of the Board, unsatisfactory for the purpose of determining
whether the member is so resident the Board may remove the shares
registered in the name of that member from the Hong Kong Overseas Branch
Register or, as the case may be, from the relevant Overseas Branch
Register and register such shares in the name of that member on the
Principal Register and shall serve a written notice of such removal and
registration on the member.
119 Borrowing powers
119.1 The Board may exercise all the powers of the Company to borrow money and
to mortgage or charge all or any part of the undertaking, property and
assets (present or future) and uncalled capital of the Company and,
subject to the provisions of the Act, to issue debentures and other
securities, whether outright or as collateral security for any debt,
liability or obligation of the Company or of any third party.
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PROCEEDINGS OF DIRECTORS AND COMMITTEES
120 Board meetings
120.1 Subject to the provisions of these Articles, the Board may meet for the
despatch of business, adjourn and otherwise regulate its proceedings as
it thinks fit.
121 Notice of Board meetings
121.1 Board meetings shall be convened at any time by the Chairman or by two
Directors or the Secretary at the request of two Directors. A Director
may waive the requirement that notice be given to him of any Board
meeting, either prospectively or retrospectively. It shall not be
necessary to give notice of a Board meeting to a Director who is absent
from the United Kingdom or Hong Kong (or from such other country or
territory as the Board may from time to time determine) unless he has
requested the Board in writing that notices of Board meetings shall
during his absence be given to him at any address in the United Kingdom
or Hong Kong (or in such other country or territory as the Board may from
time to time determine) notified to the Company for this purpose, but he
shall not, in such event, be entitled to a longer period of notice than
if he had been present in the United Kingdom or Hong Kong (or in such
other country or territory as the Board may from time to time determine)
at that address.
122 Quorum
122.1 The quorum necessary for the transaction of business may be determined by
the Board and until otherwise so determined shall be three persons, each
being a Director or an alternate Director. A duly convened meeting of the
Board at which a quorum is present shall be competent to exercise all or
any of the authorities, powers, and discretions for the time being vested
in or exercisable by the Board.
123 Chairman of Board
123.1 The Board may appoint one of its body as Chairman to preside at every
Board meeting at which he is present and no more than two other members
as Deputy Chairmen, may determine the period for which he is or they are
to hold office and may at any time remove him or them from office. If no
such Chairman or Deputy Chairman is elected, or if at any meeting neither
the Chairman nor a Deputy Chairman is present within five minutes of the
time appointed for holding the same, the Directors present shall choose
one of their number to be Chairman of such meeting. In the event of two
or more Deputy Chairmen being present, the Deputy Chairman to act as
Chairman shall be decided by those Directors present. Any Chairman or
Deputy Chairman may also hold executive office under the Company.
124 Voting
124.1 Questions arising at any meeting shall be determined by a majority of
votes. In the case of an equality of votes the Chairman shall have a second
or casting vote.
125 Participation by telephone
125.1 Any Director or his alternate may validly participate in a meeting of the
Board or a committee of the Board through the medium of conference
telephone or similar form of communication equipment, provided that all
persons participating in the meeting are able to hear and speak to each
other throughout such meeting. A person so participating shall be deemed
to be present in person at the meeting and shall accordingly be counted
in a quorum and be entitled to vote. Such a meeting shall be deemed to
take place where the largest group of those participating is assembled
or, if there is no group which is larger than any other group, where the
Chairman of the meeting then is.
126 Resolution in writing
126.1 A resolution in writing executed by all the Directors for the time being
entitled to receive notice of a Board meeting and present in the United
Kingdom or Hong Kong (or in such other country or territory as the Board
may from time to time determine), and not being less than a quorum, or by
all the members of a committee of the Board and present in the United
Kingdom or Hong Kong (or in such other country or territory as the Board
may from time to time determine), shall be as valid and effective for all
purposes as a resolution duly passed at a meeting of the Board (or
committee, as the case may be). Such a resolution:
(a) may consist of several documents in the same form each executed by
one or more of the Directors or members of the relevant committee,
including by means of facsimile transmission;
(b) need not be signed by an alternate Director if it is signed by the
Director who appointed him; and
(c) if signed by an alternate Director need not also be signed by his
appointor.
127 Proceedings of committees
127.1 All committees of the Board shall, in the exercise of the powers
delegated to them and in the transaction of business, conform to any mode
of proceedings and regulations which the Board may prescribe and subject
thereto shall be governed by such of these Articles as regulate the
proceedings of the Board as are capable of applying.
128 Minutes of proceedings
128.1 The Board shall cause minutes to be made in books kept for the purpose:
(a) of all appointments of officers and committees made by the Board;
and
(b) of all orders, resolutions and proceedings at every meeting of the
Company, of the Board and of any committee of the Board.
Any such minutes, if purporting to be signed by the Chairman of the
meeting at which the proceedings were held or by the Chairman of the next
succeeding meeting or the Secretary, shall be receivable as prima facie
evidence of the matters stated in such minutes without any further proof.
129 Validity of proceedings
129.1 All acts done by a meeting of the Board, or of a committee of the Board,
or by any person acting as a Director, alternate Director or member of a
committee shall, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of any person or persons acting
as aforesaid, or that they or any of them were or was disqualified from
holding office or not entitled to vote, or had in any way vacated their
or his office, be as valid as if every such person had been duly
appointed, and was duly qualified and had continued to be a Director,
alternate Director or member.
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DIRECTORS' INTERESTS
130 Director may have interests
130.1 Subject to the provisions of the Act and provided that Article 131 is
complied with, a Director, notwithstanding his office:
(a) may enter into or otherwise be interested in any contract,
arrangement, transaction or proposal with the Company or in which
the Company is otherwise interested, either in regard to his
tenure of any office or place of profit or as vendor, purchaser or
otherwise;
(b) may hold any other office or place of profit under the Company
(except that of Auditor or auditor of a subsidiary of the Company)
in conjunction with the office of Director and may act by himself
or through his firm in a professional capacity for the Company,
and in any such case on such terms as to remuneration and
otherwise as the Board may arrange, either in addition to or in
lieu of any remuneration provided for by any other Article;
(c) may be a director or other officer, or employed by, or a party to
any transaction or arrangement with or otherwise interested in,
any company promoted by the Company or in which the Company is
otherwise interested or as regards which the Company has any
powers of appointment; and
(d) shall not be liable to account to the Company for any profit,
remuneration or other benefit realised by any such office,
employment, contract, arrangement, transaction or proposal and no
such contract, arrangement, transaction or proposal shall be
avoided on the grounds of any such interest or benefit.
131 Disclosure of interests to Board
131.1 A Director who, to his knowledge, is in any way (directly or indirectly)
interested in any contract, arrangement, transaction or proposal with the
Company shall declare the nature of his interest at the meeting of the
Board at which the question of entering into the contract, arrangement,
transaction or proposal is first considered, if he knows his interest
then exists or, in any other case, at the first meeting of the Board
after he knows that he is or has become so interested. For the purposes
of this Article:
(a) a general notice given to the Board by a Director that he is to be
regarded as having an interest (of the nature and extent specified
in the notice) in any contract, transaction, arrangement or
proposal in which a specified person or class of persons is
interested shall be deemed to be a sufficient disclosure under
this Article in relation to such contract, transaction,
arrangement or proposal; and
(b) an interest of which a Director has no knowledge and of which it
is unreasonable to expect him to have knowledge shall not be
treated as an interest of his.
132 Interested Director not to vote or count for quorum
132.1 Save as provided in this Article, a Director shall not vote on, or be
counted in the quorum in relation to, any resolution of the Board or of a
committee of the Board concerning any contract, arrangement, transaction
or any proposal whatsoever to which the Company is or is to be a party
and in which he has an interest which (together with any interest of any
person connected with him within the meaning of section 346 of the Act)
is to his knowledge a material interest otherwise than by virtue of his
interest in shares or debentures or other securities of or otherwise in
or through the Company unless the resolution concerns any of the
following matters:
(a) the giving to him of any guarantee, security or indemnity in
respect of money lent or obligations incurred by him at the
request of or for the benefit of the Company or any of its
subsidiary undertakings;
(b) the giving to a third party of any guarantee, security or
indemnity in respect of a debt or obligation of the Company or any
of its subsidiary undertakings for which he himself has assumed
responsibility in whole or in part, either alone or jointly with
others, under a guarantee or indemnity or by the giving of
security;
(c) any proposal concerning an offer of shares or debentures or other
securities of or by the Company or any of its subsidiary
undertakings in which offer he is or may be entitled to
participate as a holder of securities or in the underwriting or
sub-underwriting of which he is to participate;
(d) any proposal concerning any other body corporate in which he
(together with persons connected with him within the meaning of
section 346 of the Act) does not to his knowledge have an interest
(as the term is used in Part VI of the Act) in one per cent. or
more of the issued equity share capital of any class of such body
corporate or of the voting rights available to members of such
body corporate;
(e) any proposal relating to an arrangement for the benefit of the
employees of the Company or any of its subsidiary undertakings
which does not award him any privilege or benefit not generally
awarded to the employees to whom such arrangement relates; or
(f) any proposal concerning insurance which the Company proposes to
maintain or purchase for the benefit of Directors or for the
benefit of persons who include Directors.
133 Director's interest in own appointment
133.1 A Director shall not vote or be counted in the quorum on any resolution
of the Board or committee of the Board concerning his own appointment
(including fixing or varying the terms of his appointment or its
termination) as the holder of any office or place of profit with the
Company or any company in which the Company is interested. Where
proposals are under consideration concerning the appointment (including
fixing or varying the terms of appointment or its termination) of two or
more Directors to offices or places of profit with the Company or any
company in which the Company is interested, such proposals may be divided
and a separate resolution considered in relation to each Director. In
such case each of the Directors concerned (if not otherwise debarred from
voting under these Articles) shall be entitled to vote (and be counted in
the quorum) in respect of each resolution except that concerning his own
appointment.
134 Chairman's ruling conclusive on Director's interest
134.1 If any question arises at any meeting as to the materiality of a
Director's interest (other than the Chairman's interest) or as to the
entitlement of any Director (other than the Chairman) to vote or be
counted in a quorum, and such question is not resolved by his voluntarily
agreeing to abstain from voting or being counted in the quorum, such
question shall be referred to the Chairman of the meeting. The Chairman's
ruling in relation to the Director concerned shall be final and
conclusive.
135 Directors' resolution conclusive on Chairman's interest
135.1 If any question arises at any meeting as to the materiality of the
Chairman's interest or as to the entitlement of the Chairman to vote or
be counted in a quorum, and such question is not resolved by his
voluntarily agreeing to abstain from voting or being counted in the
quorum, such question shall be decided by resolution of the Directors or
committee members present at the meeting (excluding the Chairman), whose
majority vote shall be final and conclusive.
136 [Deleted by Special Resolution passed on 28 May 1999]
137 Definitions
137.1 For the purposes of Articles 130 to 137:
(a) an interest of a person who is for the purposes of the Act
connected (which word shall have the meaning given thereto by
section 346 of the Act) with a Director shall be treated as an
interest of the Director; and
(b) in relation to an alternate Director, an interest of his appointor
shall be treated as an interest of the alternate Director in
addition to any interest which the alternate Director otherwise
has.
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THE SEAL
138 Application of Seal
138.1 The Seal shall be used only by the authority of a resolution of the Board
or of a committee of the Board. The Board may determine whether any
instrument to which the Seal is affixed shall be signed and, if it is to
be signed, who shall sign it. Unless otherwise so determined:
(a) share certificates and, subject to the provisions of any
instrument constituting the same, certificates issued under the
Seal in respect of any debentures or other securities need not be
signed and any signature may be affixed to or printed on any such
certificate by any means approved by the Board; and
(b) every other instrument to which the Seal is affixed shall be
signed by one Director and by the Secretary or by two Directors.
Every certificate or share warrant to bearer shall be issued under the
Seal or in such other manner as the Board, having regard to the terms of
issue, the Act and the regulations of The Hong Kong Stock Exchange and
The Stock Exchange, may authorise; all references in these Articles to
the Seal shall be construed accordingly.
139 Deed without sealing
139.1 A document signed by a Director and by the Secretary or by two Directors
and expressed (in whatever form of words) to be executed by the Company
shall have the same effect as if it were executed under the Seal,
provided that no instrument shall be so signed which makes it clear on
its face that it is intended by the person or persons making it to have
effect as a deed without the authority of a resolution of the Board or of
a committee of the Board authorised in that behalf. An instrument or
document which is executed by the Company as a deed shall not be deemed
to be delivered by the Company solely as a result of it having been
executed by the Company.
140 Official seal for use abroad
140.1 Subject to the provisions of the Act, the Company may have an official
seal for use in any place outside the United Kingdom.
THE SECRETARY
141 The Secretary
141.1 Subject to the provisions of the Act, the Board shall appoint a Secretary
or joint secretaries and shall have power to appoint one or more persons
to be an assistant or deputy secretary at such remuneration and on such
conditions as it thinks fit.
141.2 Any provision of the Act or of these Articles requiring or authorising a
thing to be done by or to a Director and the Secretary shall not be
satisfied by its being done by or to the same person acting both as
Director and as, or in place of, the Secretary.
DIVIDENDS AND OTHER PAYMENTS
142 Declaration of dividends
142.1 Subject to the provisions of the Act and of these Articles, the Company
may by ordinary resolution declare dividends to be paid to members
according to their respective rights and interests in the profits of the
Company. However, no dividend shall exceed the amount recommended by the
Board. If and whenever the shares on which any such dividend is declared
are denominated in different currencies, the dividend shall be declared
in a single currency (which may be any currency).
143 Interim dividends
143.1 Subject to the provisions of the Act, the Board may declare and pay such
interim dividends (including any dividend payable at a fixed rate) as
appears to the Board to be justified by the profits of the Company
available for distribution. The Board shall declare such dividend on all
shares ranking pari passu in a single currency (which may be any
currency) even if such shares are denominated in different currencies. If
at any time the share capital of the Company is divided into different
classes, the Board may pay such interim dividends on shares which rank
after shares conferring preferential rights with regard to dividend as
well as on shares conferring preferential rights, unless at the time of
payment any preferential dividend is in arrear. Provided that the Board
acts in good faith, it shall not incur any liability to the holders of
shares conferring preferential rights for any loss that they may suffer
by the lawful payment of any interim dividend on any shares ranking after
those with preferential rights.
144 Entitlement to dividends
144.1 Except as otherwise provided by the terms of issue of or rights attached
to any shares, all dividends shall be declared and paid according to the
amounts paid up (otherwise than in advance of calls) on the shares on
which the dividend is paid. For this purpose the same amount shall be
deemed to have been paid up on all fully paid Ordinary Shares
notwithstanding that they may be denominated in different currencies.
Subject as aforesaid, all dividends shall be apportioned and paid
proportionately to the percentage of the nominal amount (which shall in
the case of Ordinary Shares be treated as the same amount as is hereby
treated as paid up on all fully paid Ordinary Shares) paid up on the
shares during any portion or portions of the period in respect of which
the dividend is paid, but if any share is issued on terms providing that
it shall rank for dividend as from a particular date, it shall rank for
dividend accordingly.
145 Calls or debts may be deducted from dividends
145.1 The Board may deduct from any dividend or other money payable to any
person on or in respect of a share all such sums as may be due from him
to the Company on account of calls or otherwise in relation to the shares
of the Company.
146 Distribution in specie
146.1 The Board may direct that payment of any dividend declared may be
satisfied wholly or partly by the distribution of assets of any kind, and
in particular of paid up shares or securities or debentures of any other
company, or in any one or more of such ways. Where any difficulty arises
in regard to such distribution, the Board may settle it as it thinks fit.
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In particular, the Board may:
(a) issue fractional certificates (or ignore fractions);
(b) fix the value for distribution of such assets or any part thereof and determine that cash payments may be made to any members on the footing of the value so fixed, in order to adjust the rights of members; and
(c) vest any such assets in trustees on trust for the persons entitled
to the dividend.
147 Dividends not to bear interest
147.1 Unless otherwise provided by the rights attached to the share, no
dividend or other moneys payable by the Company or in respect of a share
shall bear interest as against the Company.
148 Method of payment
148.1 The Company may pay any dividend, interest or other sum payable in
respect of a share by cheque, dividend warrant, or money order and may
send the same by post to the registered address (or in the case of a
Depositary, subject to the approval of the Board, such persons and
addresses) of the member or person entitled to it or, if two or more
persons are holders of the share or are jointly entitled to it by reason
of the death or bankruptcy of the member or otherwise by operation of
law, to the registered address of such of those persons as is first named
in the Register or to such person and to such address as such member or
person or persons may direct in writing. Every cheque, warrant or order
is sent at the risk of the person entitled to the money represented by
it, shall be crossed in accordance with the Cheques Act 1992 or in such
other manner as the Board may from time to time approve and shall be made
payable to the person or persons entitled, or to such other person as the
person or persons entitled may direct in writing. Payment of the cheque,
warrant or order shall be a good discharge to the Company. If any such
cheque, warrant or order has or shall be alleged to have been lost,
stolen or destroyed, on request of the person entitled thereto a
replacement cheque or warrant or order may be issued subject to
compliance with such conditions as to evidence and indemnity and the
payment of out of pocket expenses of the Company in connection with the
request as the Board may think fit. Any joint holder or other person
jointly entitled to a share may give an effective receipt for any
dividend or other moneys payable in respect of such share. Any such
dividend, interest or other sum may also be paid by any other method
(including direct debit or autopay or bank transfer) as the Board
considers appropriate.
148.2 The Board may at its discretion make provisions to enable a Depositary
and/or any other member as they shall from time to time determine to
receive dividends duly declared in such currency or currencies and at
such rate or rates of exchange and on such terms and conditions as the
Board may in its absolute discretion determine.
149 Uncashed dividends
149.1 If cheques, warrants or orders for dividends or other moneys payable in
respect of a share sent by the Company to the person entitled thereto are
returned to the Company or left uncashed on two consecutive occasions,
the Company shall not be obliged to send any dividends or other moneys
payable in respect of that share due to that person until he notifies the
Company of an address to be used for the purpose.
150 Unclaimed dividends
150.1 All dividends unclaimed for 12 months after having become payable may be
invested or otherwise made use of by the Board for the benefit of the
Company until claimed and the Company shall not be constituted a trustee
in respect thereof. All dividends unclaimed for a period of 12 years
after having become due for payment shall (if the Board so resolves) be
forfeited and shall cease to remain owing by the Company.
151 Payment of scrip dividends
151.1 The Board may, with the prior authority of an ordinary resolution of the
Company and subject to such terms and conditions as the Board may
determine, offer to any holders of Ordinary Shares the right to elect to
receive in accordance with the provisions of this Article Ordinary Shares
of the same or a different currency, credited as fully paid, instead of
cash in any currency in respect of the whole (or some part, to be
determined by the Board) of any dividend specified by the ordinary
resolution. The following provisions shall apply:
(a) the said resolution may specify a particular dividend, or may
specify all or any dividends declared within a specified period or
periods;
(b) the entitlement of each holder of Ordinary Shares to new Ordinary
Shares shall be such that the relevant value of the entitlement
shall be as nearly as possible equal to (but not greater than) the
cash amount (disregarding any tax credit) of the dividend that
such holder would have received by way of dividend in the currency
in which such dividend was declared or as converted into the
equivalent amount in another currency if and in such manner as the
Board shall so determine. For this purpose "relevant value" shall
be calculated by reference to the average of the middle market
quotations for the Ordinary Shares on The Stock Exchange, as
derived from the Daily Official List, for the day on which the
Ordinary Shares are first quoted "ex" the relevant dividend and
the four subsequent dealing days, or in such other manner as the
Board may determine on such basis as it considers to be fair and
reasonable and the cash amount of the relevant dividend in a
particular currency shall be converted into the equivalent amount
in another currency if and in such manner as the Board shall so
determine. A certificate or report by the Auditors as to the
amount of the relevant value in respect of any dividend shall be
conclusive evidence of that amount;
(c) no fractions of a share shall be allotted. The Board may make such
provisions as it thinks fit for the application of any residual
dividend entitlement remaining following the calculation of the
entitlement of a holder of Ordinary Shares to new Ordinary Shares
pursuant to Article 151.1(b) including provisions whereby, in
whole or in part, the benefit thereof accrues to the Company
and/or under which such entitlements are accrued and/or retained
and in each case accumulated on behalf of any member and such
accruals or retentions are applied to the allotment by way of
bonus to or cash subscription on behalf of such member of fully
paid Ordinary Shares and/or provisions whereby cash payments may
be made to members in respect of such entitlements;
(d) the Board shall, after determining the basis of allotment, notify
the holders of Ordinary Shares in writing of the right of election
offered to them, and specify the procedure to be followed and
place at which, and the latest time by which, elections must be
lodged in order to be effective;
(e) the Board may exclude from any offer any holders of Ordinary
Shares or any Ordinary Shares held by a Depositary where the Board
considers that the making of the offer to them or in respect of
such shares would or might involve the contravention of the laws
of any territory or that for any other reason the offer should not
be made to them or in respect of such shares;
(f) the Board may determine that every duly effected election in
respect of any Ordinary Shares shall be binding on every successor
in title to the holder thereof;
(g) the dividend (or that part of the dividend in respect of which a
right of election has been offered) shall not be payable on
Ordinary Shares in respect of which an election has been duly made
("the elected Ordinary Shares") and instead additional Ordinary
Shares shall be allotted, credited as fully paid, to the holders
of the elected Ordinary Shares on the basis of their entitlement
pursuant to paragraph (b) of this Article 151.1. For such purpose
the Board may capitalise, out of any amount for the time being
standing to the credit of any reserve or fund (including any share
premium account or capital redemption reserve) or of any of the
profits which could otherwise have been applied in paying
dividends in cash as the Board may determine, a sum equal to the
aggregate nominal amount or amounts of the additional Ordinary
Shares to be allotted on that basis and apply it in paying up in
full the appropriate number of unissued Ordinary Shares for
allotment and distribution to the holders of the elected Ordinary
Shares on that basis. A Board resolution capitalising any part of
such reserve or fund or profits shall have the same effect as if
such capitalisation had been declared by ordinary resolution of
the Company in accordance with Article 153 and in relation to any
such capitalisation the Board may exercise all the powers
conferred on them by Article 153 without need of such ordinary
resolution;
(h) the additional Ordinary Shares so allotted shall rank pari passu
in all respects with each other and with the fully paid Ordinary
Shares in issue on the record date for the dividend in respect of
which the right of election has been offered, except that they
will not rank for any dividend or other distribution or other
entitlement which has been declared, paid or made by reference to
such record date; and
(i) the Board may terminate, suspend or amend any offer of the right
to elect to receive Ordinary Shares in lieu of any cash dividend
at any time.
152 Reserves
152.1 The Board may, before recommending any dividend (whether preferential or
otherwise), carry to reserve out of the profits of the Company such sums
as it thinks fit. All sums standing to reserve may be applied from time
to time, at the discretion of the Board, for any other purpose to which
the profits of the Company may properly be applied, and pending such
application may, at the like discretion, either be employed in the
business of the Company or be invested in such investments as the Board
thinks fit. The Board may divide the reserve into such special funds as
it thinks fit, and may consolidate into one fund any special funds or any
parts of any special funds into which the reserve may have been divided
as it thinks fit. Any sum which the Board may carry to reserve out of the
unrealised profits of the Company shall not be mixed with any reserve to
which profits available for distribution have been carried. The Board may
also, without placing the same to reserve, carry forward any profits
which it may think prudent not to distribute.
153 Capitalisation of reserves
153.1 The Board may, with the authority of an ordinary resolution of the
Company:
(a) subject as provided in this Article, resolve to capitalise any
undivided profits of the Company not required for paying any
preferential dividend (whether or not they are available for
distribution) or any sum standing to the credit of any reserve or
fund of the Company which is available for distribution or
standing to the credit of share premium account or capital
redemption reserve or other undistributable reserve;
(b) appropriate the sum resolved to be capitalised to the holders of
Ordinary Shares (whether or not fully paid) in proportion to the
number of such shares held by them respectively and apply such sum
on their behalf either in or towards paying up the amounts, if
any, for the time being unpaid on any shares held by them
respectively, or in paying up in full unissued shares or
debentures of the Company of a nominal amount equal to that sum,
and allot the shares or debentures credited as fully paid to those
holders of Ordinary Shares or as they may direct, in those
proportions, or partly in one way and partly in the other,
provided that the share premium account, the capital redemption
reserve, any other undistributable reserve and any profits which
are not available for distribution may, for the purposes of this
Article, only be applied in paying up unissued shares to be
allotted to holders of Ordinary Shares credited as fully paid and
provided further that the sum appropriated as hereinbefore
mentioned need not be in the same currency as the securities which
it is to be used to pay up but in that event and for the purpose
of determining the extent to which such securities are paid up by
such sum the Board shall select such rate of exchange as it shall
consider appropriate;
(c) resolve that any shares so allotted to any holder of Ordinary
Shares in respect of a holding by him of any partly paid shares
shall, so long as such shares remain partly paid, rank for
dividends only to the extent that such partly paid shares rank for
dividends;
(d) make such provision by the issue of fractional certificates (or by
ignoring fractions or by accruing the benefit thereof to the
Company rather than to the holders of Ordinary Shares concerned)
or by payment in cash or otherwise as it thinks fit in the case of
shares or debentures becoming distributable in fractions;
(e) authorise any person to enter on behalf of all the holders of
Ordinary Shares concerned into an agreement with the Company
providing for either (i) the allotment to them respectively,
credited as fully paid up, of any shares or debentures to which
they may be entitled on such capitalisation or (ii) the payment up
by the Company on behalf of such holders by the application
thereto of their respective proportions of the reserves or profits
resolved to be capitalised, of the amounts or any part of the
amounts remaining unpaid on their existing shares (any agreement
made under such authority being effective and binding on all such
holders); and
(f) generally do all acts and things required to give effect to such
resolution.
153.2 Whenever the Ordinary Shares are denominated in different currencies and
the Board is given authority under Article 153.1 to make an allotment of
new Ordinary Shares credited as fully paid the holders of Ordinary Shares
shall unless in respect of all or any of such Shares the Board otherwise
resolves receive by virtue of such allotment Ordinary Shares (credited as
fully paid) denominated in the same currency as the Ordinary Shares in
right of which they are allotted. If the Board resolves otherwise in
respect of any Ordinary Shares it may determine either that the holders
of such Shares should receive, or that the holders of such Shares should
have the right to elect to receive, Ordinary Shares denominated in some
currency other than that in which their Shares are denominated and so
that the Board may if it thinks fit exercise its powers under this
Article differently in relation to different Ordinary Shares. The rights
attached to an Ordinary Share shall not be deemed to be varied or
abrogated by reason only that any Ordinary Share offered or allotted to
the holder thereof in pursuance of this Article is denominated in a
different currency from or the same currency as any other Ordinary Share
allotted to any other holder of Ordinary Shares on the same occasion or
is denominated in the same or a different currency from the Ordinary
Share in right of which it is allotted.
154 Record dates
154.1 Notwithstanding any other provision of these Articles but without
prejudice to the rights attached to any shares and subject always to the
Act, the Company or the Board may by Resolution specify any date (the
"record date") as the date at the close of business (or such other time
as the Board may determine) on which persons registered as the holders of
shares or other securities shall be entitled to receipt of any dividend,
distribution, interest, allotment, issue, notice, information, document
or circular and such record date may be on or at any time before the date
on which the same is paid or made or (in the case of any dividend,
distribution, interest, allotment or issue) at any time before or after
the same is recommended, resolved, declared or announced but without
prejudice to the rights inter se in respect of the same of transferors
and transferees of any such shares or other securities. Different dates
may be fixed as record dates in respect of shares registered on different
Registers.
ACCOUNTS
155 Accounting records
155.1 The Board shall cause accounting records to be kept in accordance with
the Act.
156 Inspection of records
156.1 No member (other than a Director) shall have any right to inspect any
accounting record or other document of the Company unless he is
authorised to do so by statute, by order of the court, by the Board or by
ordinary resolution of the Company.
157 Accounts to be sent to members
157.1 Except as provided in Article 158, a printed copy of the Directors' and
Auditors' reports accompanied by printed copies of the balance sheet and
every document required by the Act to be annexed to the balance sheet and
of the profit and loss account or income and expenditure account (subject
to the provisions of Section 230 of the Act) shall, not less than 21
clear days before the annual general meeting before which they are to be
laid, be delivered or sent by post to every member and holder of
debentures of the Company and to the Auditors. However, this Article
shall not require a copy of those documents to be sent to any person who
under the provisions of these Articles is not entitled to receive notices
from the Company or of whose address the Company is unaware or to any
holder of debentures of whose address the Company is unaware or to more
than one of the joint holders of any shares or debentures. If all or any
of the shares in or debentures of the Company are listed or dealt in on
any stock exchange, there shall at the same time be forwarded to the
secretary of that stock exchange such number of copies of each of those
documents as the regulations of that stock exchange may require.
158 Summary financial statements
158.1 The Company may, in accordance with section 251 of the Act and any
regulations made under it, send a summary financial statement to any
member instead of or in addition to the documents referred to in Article
157. Where it does so, the statement shall be delivered or sent by post
to the member not less than 21 clear days before the annual general
meeting before which those documents are to be laid.
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NOTICES
159 Form of Notices
159.1 Notwithstanding anything to the contrary in these Articles, any notice or
document to be given, sent, issued, deposited, served or delivered (or
the equivalent) to or by any person pursuant to these Articles (other
than a notice calling a meeting of the Directors) shall be in writing
and, if the Board in its absolute discretion considers appropriate for
any purpose or purposes under these Articles, any such notice or document
shall be deemed given, sent, issued, deposited, served or delivered (or
the equivalent) where it is sent using electronic communications to an
address for the time being notified for that purpose to the person giving
the notice, but subject always to the provisions of Article 162. In the
case of notices or other documents sent by means of electronic
communication the Board may make this subject to such terms and
conditions as it shall in its absolute discretion consider appropriate.
Nothing in these Articles shall affect any requirement of the Act that
any particular offer, notice or other document be served in any
particular manner.
159.2 For the purposes of Article 159.1, notices or documents shall be treated
as being sent using electronic communications by the Company to a person
where (i) the Company and that person have agreed to his having access to
the notice or document on a web site (instead of such notice or document
being sent to him) (ii) the notice or document (as the case may be) is a
notice or document to which that agreement applies and (iii) a notice is
sent to the person, in a manner for the time being agreed for that
purpose between him and the Company, of (a) the publication of that
notice or document on the web site (b) the address of the web site and
(c) the place on that web site where the notice or document may be
accessed, and how it may be accessed, and in any such case the
notification referred to above shall be treated as the relevant notice
for the purposes of these Articles.
160 Service of notice on members
160.1 The Company may give any notice or document (including a share
certificate) to a member either personally or by sending it by post in a
prepaid envelope addressed to the member at his registered address or by
leaving it at that address or, in the circumstances referred to in
Article 159, by sending it using electronic communications to an address
for the time being notified to the Company by the member. In the case of
a member registered on the Principal Register or the Hong Kong Overseas
Branch Register or an Overseas Branch Register any such notice or
document may be posted either in the United Kingdom or in any territory
in which any such Register is maintained.
160.2 In the case of joint holders of a share, all notices or documents shall
be given to the joint holder whose name stands first in the Register in
respect of the joint holding. Notice so given shall be sufficient notice
to all the joint holders.
160.3 Where a member (or, in the case of joint holders, the person first named
in the Register) has a registered address outside Hong Kong or the United
Kingdom but has notified the Company of an address within Hong Kong or
the United Kingdom at which notices or other documents may be given to
him or, if the Board in its absolute discretion permits, an address to
which notices or documents may be sent using electronic communications,
he shall be entitled to have notices or documents given or sent to him at
that address but otherwise no such member shall be entitled to receive
any notice or document from the Company. If on at least two consecutive
occasions the Company has attempted to send notices or documents using
electronic communications to an address for the time being notified to
the Company by a member for that purpose but the Company is aware that
there has been a failure of delivery of such notice or document in the
manner described in Article 162.3, then the Company shall thereafter send
notices or documents through the post to such member at his registered
address or his address for the service of notices by post, in which case
the provisions of the remainder of this Article shall apply. If on three
consecutive occasions notices or documents have been sent through the
post to any member at his registered address or his address for the
service of notices but have been returned undelivered, such member shall
not thereafter be entitled to receive notices or documents from the
Company until he shall have communicated with the Company and supplied in
writing a new registered address or address within Hong Kong or the
United Kingdom for the service of notices or, if the Board in its
absolute discretion permits, an address to which notices may be sent
using electronic communications.
161 Notice in case of death, bankruptcy or mental disorder
161.1 The Company may give notice to the person entitled to a share in
consequence of the death or bankruptcy of a member or otherwise by
operation of law, by sending or delivering it in any manner authorised by
these Articles for the giving of notice to a member, addressed to that
person by name, or by the title of representative of the deceased or
trustee of the bankrupt or by any like description, at the address (if
any) within Hong Kong or the United Kingdom or to which notices may be
sent using electronic communications supplied for the purpose by the
person claiming to be so entitled. Until such an address has been so
supplied, a notice may be given in any manner in which it might have been
given if the death or bankruptcy or operation of law had not occurred.
162 Evidence of service
162.1 Any member present, in person or by proxy, at any meeting of the Company
or of the holders of any class of shares of the Company shall be deemed
to have received due notice of such meeting, and, where requisite, of the
purposes for which such meeting was called.
162.2 Any notice or other document, addressed to a member at his registered
address or address for service in Hong Kong or the United Kingdom shall,
if sent by post, be deemed to have been served or delivered on the day
after the day when it was put in the post (or, where second-class mail is
employed, on the second day after the day when it was put in the post).
In proving such service or delivery it shall be conclusive to prove that
the envelope containing the notice or document was properly addressed and
put into the post as a prepaid letter. Any notice or other document not
sent by post but delivered or left at a registered address or address for
service in Hong Kong or the United Kingdom shall be deemed to have been
served or delivered on the day on which it was so delivered or left.
162.3 Any notice or other document addressed to a member shall, if sent using
electronic communications, be deemed to have been served or delivered at
the expiration of 24 hours after the time it was first sent. In proving
such service or delivery it shall be conclusive to prove that the address
used for the electronic communication was the address supplied for that
purpose and the electronic communication was properly dispatched, unless
the Company is aware that there has been a failure of delivery of such
notice or document following at least 2 attempts in which case such
notice or document shall be sent to the member at his registered address
or address for service in Hong Kong or the United Kingdom provided that
the date of deemed service or delivery shall be 24 hours from the
dispatch of the original electronic communication in accordance with this
Article.
163 Notice binding on transferees
163.1 Every person who, by operation of law, transfer or by any other means
becomes entitled to a share shall be bound by any notice in respect of
that share (other than a notice given by the Company under Section 212 of
the Act) which, before his name is entered in the Register, has been duly
given to a person from whom he derives his title.
164 Notice by advertisement
164.1 Any notice to be given by the Company to the members or any of them, and
not otherwise provided for by these Articles, shall be sufficiently given
if given by advertisement appearing in one leading English language daily
newspaper and one leading Chinese language daily newspaper printed and
circulating in Hong Kong and in at least one leading daily newspaper
published in the United Kingdom. Any notice given by advertisement shall
be deemed to have been served at noon on the day on which the
advertisement first appears.
164.2 The production in any court or tribunal of any such newspaper containing
any such advertisement shall be sufficient proof of the giving of any
such notice as regards all persons and for all purposes.
165 Suspension of postal services
165.1 If at any time by reason of the suspension or curtailment of postal
services within Hong Kong or the United Kingdom the Company is unable
effectively to convene a general meeting by notices sent through the
post, a general meeting may be convened by a notice advertised in
accordance with Article 164.1. Such notice shall be deemed to have been
duly served on all members entitled thereto at noon on the day on which
the advertisement first appears. In any such case the Company shall send
confirmatory copies of the notice by post if at least seven days prior to
the meeting the posting of notices to addresses throughout Hong Kong and
the United Kingdom again becomes practicable.
WINDING UP
166 Division of assets
166.1 If the Company is wound up, the assets available for distribution among
the holders of Ordinary Shares shall be distributed among such holders in
proportion to the number of Ordinary Shares held by them respectively
notwithstanding that such Ordinary Shares may be denominated in different
currencies. The distribution of any amount under this Article to the
holder of any Ordinary Share which at the date of such distribution is
not fully paid up shall be adjusted so as to ensure that the holder gives
credit against such distribution for the amount remaining unpaid on his
share.
166.2 If the Company is wound up the liquidator may, with the sanction of an
extraordinary resolution of the Company and any other sanction required
by law, divide among the members in specie the whole or any part of the
assets of the Company and may, for that purpose, value any assets and
determine how the division shall be carried out as between the members or
different classes of members. Any such division may be otherwise than in
accordance with the existing rights of the members, but if any division
is resolved otherwise than in accordance with such rights, the members
shall have the same right of dissent and consequential rights as if such
resolution were a special resolution passed pursuant to section 110 of
the Insolvency Act 1986. The liquidator may, with the like sanction, vest
the whole or any part of the whole of the assets in trustees on such
trusts for the benefit of the members as he with the like sanction shall
determine, but no member shall be compelled to accept any assets on which
there is a liability.
167 Transfer or sale under s.110 Insolvency Act 1986
167.1 A special resolution sanctioning a transfer or sale to another company
duly passed pursuant to section 110 of the Insolvency Act 1986 may in the
like manner authorise the distribution of any shares or other
consideration receivable by the liquidator among the members otherwise
than in accordance with their existing rights, and any such determination
shall be binding on all the members, subject to the right of dissent and
consequential rights conferred by the said section.
INDEMNITY
168 Right to indemnity
168.1 Subject to the provisions of the Act, but without prejudice to any
indemnity to which he may be otherwise entitled, every Director,
alternate Director, Secretary or other officer of the Company shall be
entitled to be indemnified out of the assets of the Company against all
costs, charges, losses, damages and liabilities incurred by him in the
actual or purported execution and/or discharge of his duties or exercise
of his powers or otherwise in relation thereto, including (without
prejudice to the generality of the foregoing) any liability incurred
defending any proceedings (whether civil or criminal) which relate to
anything done or omitted or alleged to have been done or omitted by him
as an officer or employee of the Company and in which judgment is given
in his favour or in which he is acquitted or which are otherwise disposed
of without any finding or admission of any material breach of duty on his
part or in connection with any application in which relief is granted to
him by any court of competent jurisdiction from liability for negligence,
default, breach of duty or breach of trust in relation to the affairs of
the Company.
169 Power to insure
169.1 Subject to the provisions of the Act, the Board may purchase and maintain
insurance at the expense of the Company for the benefit of any person who
is or was at any time a Director or other officer or employee of the
Company against any liability which may attach to him or loss or
expenditure which he may incur in relation to anything done or alleged to
have been done or omitted to be done as a Director, officer or employee.
The Board may authorise directors of subsidiaries of the Company to
purchase and maintain insurance at the expense of the Company for the
benefit of any present or former director, other officer or employee of
such company in respect of such liability, loss or expenditure.
UNCERTIFICATED SHARES
170 Uncertificated shares
170.1 Notwithstanding anything in these Articles to the contrary, any shares in
the Company may be issued, held, registered, converted to, transferred or
otherwise dealt with in uncertificated form and converted from
uncertificated form to certificated form in accordance with the
Regulations and practices instituted by the operator of the relevant
system. Any provisions of these Articles shall not apply to any
uncertificated shares to the extent that such provisions are inconsistent
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with:
(a) the holding of shares in uncertificated form;
(b) the transfer of title to shares by means of a relevant system; or
(c) any provision of the Regulations.
170.2 Without prejudice to the generality and effectiveness of the foregoing:
(a) Articles 12, 13 and 34 and the second and third sentence of Article 36 shall not apply to uncertificated shares and the remainder of Article 36 shall apply in relation to such shares as if the reference therein to the date on which the transfer was lodged with the Company were a reference to the date on which the appropriate instruction was received by or on behalf of the Company in accordance with the facilities and requirements of the relevant system;
(b) without prejudice to Article 35 in relation to uncertificated shares, the Board may also refuse to register a transfer of uncertificated shares in such other circumstances as may be permitted or required by the Regulations and the relevant system;
(c) references in these Articles to a requirement on any person to execute or deliver an instrument of transfer or certificate or other document which shall not be appropriate in the case of uncertificated shares shall, in the case of uncertificated shares, be treated as references to a requirement to comply with any relevant requirements of the relevant system and any relevant arrangements or regulations which the Board may make from time to time pursuant to Article 170.2(k) below;
(d) for the purposes referred to in Article 42, a person entitled by transmission to a share in uncertificated form who elects to have some other person registered shall either:
(i) procure that instructions are given by means of the relevant system to effect transfer of such uncertificated share to that person; or
(ii) change the uncertificated share to certificated form and execute an instrument of transfer of that certificated share to that person;
(e) the Company shall enter on the Principal Register the number of shares which are held by each member in uncertificated form and in certificated form and shall maintain the Principal Register in each case as is required by the Regulations and the relevant system and, unless the Board otherwise determines, holdings of the same holder or joint holders in certificated form and uncertificated form may be treated by the Company as separate holdings for such purpose or purposes as the Board may in its absolute discretion determine;
(f) a class of share shall not be treated as two classes by virtue only of that class comprising both certificated shares and uncertificated shares or as a result of any provision of these Articles or the Regulations which applies only in respect of certificated shares or uncertificated shares;
(g) references in Article 44 to instruments of transfer shall include, in relation to uncertificated shares, instructions and/or notifications made in accordance with the relevant system relating to the transfer of such shares;
(h) for the purposes referred to in Article 46, the Board may in respect of uncertificated shares authorise some person to transfer and/or require the holder to transfer the relevant shares in accordance with the facilities and requirements of the relevant system;
(i) for the purposes of Article 148.1, any payment in the case of uncertificated shares may be made by means of the relevant system (subject always to the facilities and requirements of the relevant system) and without prejudice to the generality of the foregoing such payment may be made by the sending by the Company or any person on its behalf of an instruction to the operator of the relevant system to credit the cash memorandum account of the holder or joint holders of such shares or, if permitted by the Company, of such person as the holder or joint holders may in writing direct and for the purposes of Article 148.1 the making of a payment in accordance with the facilities and requirements of the relevant system concerned shall be a good discharge to the Company;
(j) subject to the Act, the Board may issue shares as certificated shares or as uncertificated shares in its absolute discretion and Articles 6, 151 and 153 shall be construed accordingly;
(k) the Board may make such arrangements or regulations (if any) as it may from time to time in its absolute discretion think fit in relation to the evidencing and transfer of uncertificated shares and otherwise for the purpose of implementing and/or supplementing the provisions of this Article 170 and the Regulations and the facilities and requirements of the relevant system and such arrangements and regulations (as the case may be) shall have the same effect as if set out in this Article 170;
(l) the Board may utilise the relevant system to the fullest extent available from time to time in the exercise of the Company's powers or functions under the Act or these Articles or otherwise in effecting any actions; and
(m) the Board may resolve that a class of shares is to become a
participating security and may at any time determine that a class
of shares shall cease to be a participating security.
170.3 Where any class of shares in the capital of the Company is a
participating security and the Company is entitled under any provisions
of the Act or the rules made and practices instituted by the operator of
any relevant system or under these Articles to dispose of, forfeit,
enforce a lien or sell or otherwise procure the sale of any shares which
are held in uncertificated form, such entitlement (to the extent
permitted by the Regulations and the rules made and practices instituted
by the operator of the relevant system) shall include the right to:
(a) request or require the deletion of any computer-based entries in
the relevant system relating to the holding of such shares in
uncertificated form; and/or
(b) require any holder of any uncertificated shares which are the
subject of any exercise by the Company of any such entitlement, by
notice in writing to the holder concerned, to change his holding
of such uncertificated shares into certificated form within such
period as may be specified in the notice, prior to completion of
any disposal, sale or transfer of such shares or direct the holder
to take such steps, by instructions given by means of a relevant
system or otherwise, as may be necessary to sell or transfer such
shares; and/or
(c) appoint any person to take such other steps, by instruction given
by means of a relevant system or otherwise, in the name of the
holder of such shares as may be required to effect transfer of
such shares and such steps shall be as effective as if they had
been taken by the registered holder of the uncertificated shares
concerned; and/or
(d) transfer any uncertificated shares which are the subject of any
exercise by the Company of any such entitlement by entering the
name of the transferee in the Principal Register in respect of
that share as a transferred share; and/or
(e) otherwise rectify or change the Principal Register in respect of
that share in such manner as may be appropriate; and
(f) take such other action as may be necessary to enable those shares
to be registered in the name of the person to whom the shares have
been sold or disposed of or as directed by him.
170.4 For the purposes of this Article 170:
(a) words and expressions shall have the same respective meanings as
in the Regulations;
(b) references herein to an uncertificated share or to a share (or to
a holding of shares) being in uncertificated form are references
to that share being an uncertificated unit of a security, and
references to a certificated share or to a share being in
certificated form are references to that share being a unit of a
security which is not an uncertificated unit; and
(c) "cash memorandum account" means an account so designated by the
operator of the relevant system.
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Form of Dated Indenture
HSBC HOLDINGS PLC
Issuer
TO
THE BANK OF NEW YORK
Trustee
INDENTURE
Dated as of o
Debt Securities
Reconciliation and tie between Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and Indenture dated as of o.
Trust Indenture Act Section Indenture Section Section 310(a)(1) 6.09 (a)(2) 6.09 (a)(3) N.A (a)(4) N.A. (a)(5) 6.09 (b) 6.08, 6.10 (c) N.A Section 311(a) 6.13 (b) 6.13 (c) N.A Section 312(a) 7.01, 7.02(a) (b) 7.02(b) (c) 7.02(c) Section 313(a) 7.03 (b) 7.03 (c) 7.03 (d) 7.03 Section 314(a) 7.04 (a)(4) 10.05 (b) N.A (c)(1) 1.02 (c)(2) 1.02 (c)(3) N.A (d) N.A (e) 1.02 Section 315(a) 6.01 (b) 6.02, 7.03(a) (c) 6.01(b) (d) 6.01(c) (e) 5.14 Section 316 (a)(1)(A) 5.02 (a)(1)(B) 5.13 (a)(2) N.A (b) 5.08 (c) 1.04(f) Section 317(a)(1) 5.03 (a)(2) 5.04 (b) 10.03 Section 318(a) 7 -------------- |
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions..............................................1
Section 1.02. Compliance Certificates and Opinions....................10
Section 1.03. Form of Documents Delivered to Trustee..................11
Section 1.04. Acts of Holders; Record Dates...........................11
Section 1.05. Notices, etc., to Trustee or Company....................13
Section 1.06. Notice to Holders; Waiver...............................14
Section 1.07. Conflict with Trust Indenture Act.......................15
Section 1.08. Effect of Headings and Table of Contents................15
Section 1.09. Successors and Assigns..................................15
Section 1.10. Separability Clause.....................................15
Section 1.11. Benefits of Indenture...................................15
Section 1.12. Governing Law...........................................15
Section 1.13. Legal Holidays..........................................16
Section 1.14. Immunity of Incorporators, Stockholders, Officers
and Directors...........................................16
Section 1.15. Appointment of Agent; Submission to Jurisdiction;
Waiver of Immunity......................................16
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ARTICLE TWO
FORMS OF DEBT SECURITIES
Section 2.01. Forms Generally.........................................17
Section 2.02. Form of Debt Securities.................................17
Section 2.03. Form of Trustee's Certificate of Authentication.........18
Section 2.04. Form of Trustee's Certificate of Authentication by
an Authenticating Agent.................................18
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ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series....................20
Section 3.02. Denominations...........................................23
Section 3.03. Execution, Authentication, Delivery and Dating..........23
Section 3.04. Temporary Debt Securities...............................26
Section 3.05. Registration, Registration of Transfer and Exchange.....27
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities...32
Section 3.07. Payment of Interest; Interest Rights Preserved..........33
Section 3.08. Persons Deemed Owners...................................35
Section 3.09. Cancellation............................................36
Section 3.10. Computation of Interest.................................36
Section 3.11. Payment in Currencies...................................36
Section 3.12. Certification by a Person Entitled to Delivery of a
Bearer Security.........................................38
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge..............................38
Section 4.02. Application of Trust Money..............................40
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.......................................40
Section 5.02. Acceleration of Maturity; Rescission and Annulment......41
Section 5.03. Defaults; Collection of Indebtedness and Suits for
Enforcement by Trustee..................................41
Section 5.04. Trustee May File Proofs of Claim........................43
Section 5.05. Trustee May Enforce Claims Without Possession of
Debt Securities or Coupons..............................44
Section 5.06. Application of Money Collected..........................44
Section 5.07. Limitation on Suits.....................................44
Section 5.08. Unconditional Right of Holders to Receive Any
Principal, Premium and Interest.........................45
Section 5.09. Restoration of Rights and Remedies......................45
Section 5.10. Rights and Remedies Cumulative..........................45
Section 5.11. Delay or Omission Not Waiver............................46
Section 5.12. Control by Holders of Debt Securities...................46
Section 5.13. Waiver of Past Defaults.................................46
Section 5.14. Undertaking for Costs...................................47
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ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.....................47
Section 6.02. Notice of Defaults......................................48
Section 6.03. Certain Rights of Trustee...............................49
Section 6.04. Not Responsible for Recitals or Issuance of Debt
Securities..............................................50
Section 6.05. May Hold Debt Securities or Coupons.....................50
Section 6.06. Money Held in Trust.....................................50
Section 6.07. Compensation and Reimbursement..........................51
Section 6.08. Disqualification; Conflicting Interests.................51
Section 6.09. Corporate Trustee Required; Eligibility.................52
Section 6.10. Resignation and Removal; Appointment of Successor.......52
Section 6.11. Acceptance of Appointment by Successor..................54
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business................................................55
Section 6.13. Preferential Collection of Claims Against Company.......55
Section 6.14. Appointment of Authenticating Agent.....................55
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of
Holders.................................................56
Section 7.02. Preservation of Information; Communications to Holders..57
Section 7.03. Reports by Trustee......................................58
Section 7.04. Reports by Company......................................58
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, etc., Only on Certain Terms....59 Section 8.02. Successor Person Substituted............................59 Section 8.03. Assumption of Obligations...............................60 |
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders......61
Section 9.02. Supplemental Indentures With Consent of Holders.........62
Section 9.03. Execution of Supplemental Indentures....................63
Section 9.04. Effect of Supplemental Indentures.......................64
Section 9.05. Conformity with Trust Indenture Act and Financial
Services Authority Requirements.........................64
Section 9.06. Reference in Debt Securities to Supplemental
Indentures..............................................64
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ARTICLE TEN
COVENANTS
Section 10.01. Payment of Any Principal, Premium or Interest...........64
Section 10.02. Maintenance of Office or Agency.........................65
Section 10.03. Money for Debt Securities Payments to be Held in Trust..66
Section 10.04. Payment of Additional Amounts...........................67
Section 10.05. Officer's Certificate as to Compliance with Indenture
and Default.............................................69
Section 10.06. Waiver of Certain Covenants.............................69
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ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
Section 11.01. Applicability of Article................................70
Section 11.02. Election to Redeem; Notice to Trustee...................70
Section 11.03. Selection by Trustee of Debt Securities to be
Redeemed................................................70
Section 11.04. Notice of Redemption....................................71
Section 11.05. Deposit of Redemption Price.............................72
Section 11.06. Debt Securities Payable on Redemption Date..............72
Section 11.07. Debt Securities Redeemed in Part........................73
Section 11.08. Optional Redemption in the Event of Change in Tax
Treatment...............................................73
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ARTICLE TWELVE
SUBORDINATION OF DEBT SECURITIES
Section 12.01. Debt Securities Subordinate to Certain Creditors........74
Section 12.02. Provisions Solely to Define Relative Rights.............78
Section 12.03. Trustee to Effectuate Subordination.....................79
Section 12.04. No Waiver of Subordination Provisions...................79
Section 12.05. Notice to Trustee.......................................79
Section 12.06. Reliance on Judicial Order or Certificate of
Liquidating Agent.......................................80
Section 12.07. Trustee Not Fiduciary for Holders of Claims.............80
Section 12.08. Rights of Trustee as Holder of Claims; Preservation of
Trustee's Rights........................................80
Section 12.09. Article Applicable to Paying Agents.....................80
Section 12.10. Governing Law...........................................81
Section 12.11. Third Party Rights......................................81
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ARTICLE THIRTEEN
EXCHANGE OR CONVERSION OF DEBT
SECURITIES
Section 13.01. Applicability of Article................................81
Section 13.02. Election to Exchange or Convert; Notice to Trustee......81
Section 13.03. Notice of Exchange or Conversion........................81
Section 13.04. Deposit of Interest.....................................82
Section 13.05. Surrender of Debt Securities............................82
Section 13.06. Issuance of Exchange Securities or Conversion
Securities..............................................82
Section 13.07. Effect of Exchange or Conversion........................82
Section 13.08. Legal and Regulatory Compliance.........................83
Section 13.09. Taxes and Charges.......................................83
Section 13.10. Trustee Not Liable......................................84
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ARTICLE FOURTEEN
DEFEASANCE
Section 14.01. Applicability of Article................................84
Section 14.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.............................................84
Section 14.03. Deposited Moneys and U.S. Government Obligations to be
Held in Trust...........................................86
Section 14.04. Repayment to Company....................................86
Section 14.05. Indemnity for U.S. Government Obligations...............86
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
Section 15.01. Rules by Trustee, Paying Agent and Registrar............87
INDENTURE dated as of o, between HSBC Holdings plc, a public limited company duly organized and existing under the laws of England and Wales (hereinafter called the "Company"), having its principal office at 8 Canada Square, London E14 5HQ, England, and The Bank of New York, a New York banking corporation, as Trustee (hereinafter called the "Trustee"), on the date hereof having its principal corporate trust office located at 101 Barclay Street, Floor 21 West, New York, New York 10286.
RECITALS OF THE COMPANY
The Company has heretofore duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its subordinated debt securities with a specified date for Maturity (herein called the " Debt Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary have been done to make this Indenture a valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Debt Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article, unless otherwise specified pursuant to Section 3.01 with respect to the Debt Securities of any series, and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that Article.
"Act" when used with respect to any Holder has the meaning specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the possession, direct or indirect, of the power to cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling", "controlled" and "under common control with" have meanings correlative to the foregoing.
"Assets" means the unconsolidated gross assets (including contingencies) of the Company, as shown in the latest published balance sheet having the benefit of an unqualified Auditors' report, but with such adjustments as the Auditors or, if the Company is in winding up, the liquidator shall determine in their or his report given in accordance with Section 12.01(c)(ii).
"Auditors" means the auditors for the time being of the Company or, if there shall be joint auditors of the Company, any one of such joint auditors or, in the event of their being unable or unwilling to carry out any action requested of them pursuant to the provisions of these presents, such other firm of internationally recognized accountants as may be nominated by the Company.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Debt Securities of one or more series.
"Authorized Newspaper" means a newspaper in an official language of the country of publication or in the English language customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day. Unless otherwise specified pursuant to Section 3.01 with respect to the Debt Securities of any series, the Authorized Newspaper in New York City shall be The Wall Street Journal, in London shall be the Financial Times and in Luxembourg shall be the Luxemburger Wort.
"Bearer Security" means any Debt Security described in Section 2.02 that is payable to bearer.
"Board of Directors" means the board of directors of the Company, or any duly authorized committee of that board or any one or more directors and/or officers of the Company to whom such board or any such committee shall have duly delegated its authority.
"Board Resolution" means a copy of a resolution certified by the Secretary of the Company to have been duly adopted by the Board of Directors of the Company and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any other location, means, except as may otherwise be provided with respect to a particular series of Debt Securities, a weekday that is not a day on which banking institutions are authorized or obligated by law or executive order to close in any jurisdiction in which payments with respect to such series are payable.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by an authorized officer of the Company and delivered to the Trustee.
"Conversion" has the meaning specified in Section 3.01(22)
"Conversion Securities" has the meaning specified in Section 3.01(22).
"Corporate Trust Office" means the principal corporate trust office of the Trustee at which at any particular time its corporate trust business shall be administered which on the date hereof is located at 101 Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate Trust Administration.
The term "corporation" includes corporations, associations, companies, joint stock companies, trusts and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Debt Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Debt Securities authenticated and delivered under this Indenture.
"Debt Security Deposit Agreement" means the deposit agreement, dated as of o, between the Company, the Depositary and holders from time to time of book-entry Debt Securities.
"Default" has the meaning specified in Section 5.03.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Deferral Notice" means a notice from the Company to the Trustee, given in the manner prescribed in Section 1.05(1) that the Company will not pay interest or principal on any Debt Security on an Interest Payment Date or the Maturity Date, as the case may be, and will accordingly defer such payment of interest or principal as specified in Section 5.03.
"Depositary" means, with respect to the Debt Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Debt Securities of any such series shall mean the Depositary with respect to the
Debt Securities of that series.
"Discount Debt Security" means any Debt Security, which provides for an amount (excluding any amounts attributable to accrued but unpaid interest thereon) less than the principal amount thereof to be due and payable upon a declaration of the Maturity thereof pursuant to Section 5.02.
"Dollar" or "$" means the coin or currency of the United States of America that as at the time of payment is legal tender for the payment of public and private debts.
"DTC" means, with respect to the Debt Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Company that is a clearing agency registered under the Exchange Act.
"Euro" or "(euro)" means the single currency adopted by those states participating in the European Monetary Union from time to time.
"Event Date" has the meaning specified in Section 3.01(22).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange" has the meaning specified in Section 3.01(22).
"Exchange Securities" has the meaning specified in Section 3.01(22).
"Exchange Rate" means (a) with respect to Dollars in which
payment is to be made on Debt Securities denominated in a Foreign Currency, the
noon Dollar buying rate in The City of New York for cable transfers payable in
such Foreign Currency on the applicable Regular or Special Record Date or the
fifteenth day immediately preceding the Maturity of any principal, as the case
may be, as certified for customs purposes by the Federal Reserve Bank of New
York, (b) with respect to a Foreign Currency in which payment is to be made on
Debt Securities denominated in Dollars or converted into Dollars pursuant to
Section 3.11(d), the noon Dollar selling rate in The City of New York for cable
transfers payable in such Foreign Currency on the applicable Regular or Special
Record Date or the fifteenth day immediately preceding the Maturity of any
principal, as the case may be, as certified for customs purposes by the Federal
Reserve Bank of New York, and (c) with respect to a Foreign Currency in which
payment is to be made on Debt Securities denominated in a different Foreign
Currency, the exchange rate between such Foreign Currencies determined in the
manner specified pursuant to Section 3.01(18). If for any reason such rates are
not available with respect to one or more currencies for which an Exchange Rate
is required, the Exchange Rate Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations from one or more major
banks in The City of New York or in the country of issue of the currency in
question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent if there is
more than one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities denominated in such
currency would purchase such currency in order to make payments in respect of
such securities.
"Exchange Rate Agent" means the Person, which may be the Company, the Paying Agent or a bank or financial institution designated by the Company to perform the functions of Exchange Rate Agent with respect to the Debt Securities of a series.
"Exchange Rate Agent's Certificate", with respect to any date for the payment of any principal, premium or interest in respect of the Debt Securities of any series, means a certificate setting forth the applicable Exchange Rate or Rates as of the applicable Regular or Special Record Date or the fifteenth day immediately preceding the Maturity of any principal, as the case may be, and the amounts payable in Dollars and Foreign Currencies in respect of any principal, premium or interest in respect of Debt Securities denominated in Euro or any Foreign Currency, and signed by or on behalf of the Exchange Rate Agent and delivered to the Trustee and the Paying Agent.
"Foreign Currency" means a currency issued by the government of any country other than the United States of America.
"Global Security" means a Registered or Bearer Security evidencing all or any part of the Debt Securities of a series, issued to the Depositary for such series in accordance with Section 3.03(c).
"Holder" means with respect to a Registered Security, the Person in whose name such Registered Security is registered in the Register and, with respect to a Bearer Security or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented, amended or restated by or pursuant to one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, unless the context otherwise requires, shall include the terms of the Debt Securities of each series established as contemplated by Section 3.01.
"Indexed Security" means any Debt Security that is a Principal Indexed Security or an Interest Indexed Security, or both, and any other Debt Security that is specified as an Indexed Security pursuant to Section 3.01.
The term "interest", when used with respect to a Discount Security, which by its terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Indexed Security" means any Debt Security (including any Principal Indexed Security) that provides that the amount of interest payable in respect thereof shall be determined by reference to an index based on a currency or currencies or on the price or prices of one or more commodities or securities, by reference to changes in the price or prices of one or more currencies, commodities or securities or otherwise by application of a formula.
"Interest Payment Date", with respect to any Debt Security,
means the Stated Maturity of an installment of any interest on such Debt
Security; provided, however, that, unless otherwise provided as contemplated by
Section 3.01 with respect to the Debt Securities of any series, if the Company
does not pay any installment of interest on the pertinent Interest Payment Date
the obligation to make such payment and such Interest Payment Date shall be
deferred until the date upon which a dividend is paid on any class of share
capital of the Company.
"Liabilities" means the unconsolidated gross liabilities
(including contingencies) of the Company, as shown in the latest published
balance sheet having the benefit of an unqualified Auditors' report, but with
such adjustments as the Auditors or, if the Company is in winding up, the
liquidator shall determine in their or his report given in accordance with
Section 12.01(c)(ii).
"Maturity", when used with respect to any Debt Security, means the date, if any, on which the principal of such Debt Security becomes due and payable as therein or herein provided, whether at the Stated Maturity, if any, or by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise; provided, however, that, unless otherwise provided as contemplated by Section 3.01 with respect to the Debt Securities of any series, if the Company does not pay all or any part of principal at Maturity, the obligation to make such payment and Maturity shall be deferred until the first Business Date after the date that falls six months after the original Maturity, as provided in Section 5.03.
"Officer's Certificate" means a certificate signed by an authorized officer of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Company and who shall be satisfactory to the Trustee, which is delivered to the Trustee.
"Ordinary Creditors" means creditors of the Company except creditors in respect of Subordinated Indebtedness and creditors in respect of debt securities with no maturity issued pursuant to an indenture of even date herewith between the Company and The Bank of New York as trustee.
"Outstanding", when used with respect to the Debt Securities of any series, means, as of the date of determination, all Debt Securities of such series theretofore issued by the Company and authenticated and delivered under this Indenture, except:
(i) Debt Securities of such series theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities of such series for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Debt Securities and any Coupons appertaining thereto; provided, however, that if such Debt Securities are to be redeemed, notice of such redemption shall have been duly given pursuant to this Indenture or provision therefore satisfactory to the Trustee shall have been made; and
(iii) Debt Securities of such series that have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Debt Securities have been authenticated and delivered pursuant to this Indenture, other than any such Debt Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Debt Securities are held by a bona fide purchaser in whose hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Debt Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver or taken any other action hereunder, Debt Securities of such series owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee shall be protected in relying upon such request, demand, authorization, direction, notice, consent, waiver or action, only Debt Securities of such series about which the Trustee has received written notice shall be so disregarded. Debt Securities of such series so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Debt Securities and that the pledgee is not the Company or any Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any, on) or interest on any Debt Securities on behalf of the Company.
"Permanent Global Security" means a Global Security that is, at the time of the initial issuance of the related series of Debt Securities, issued in permanent global bearer form without Coupons.
"Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Registered Security of any series payable in Dollars, means the Corporate Office of the Paying Agent in New York, New York; when used with respect to the Debt Securities of any series payable in a Foreign Currency, means the place or places where such Foreign Currency is the legal tender; and, when used with respect to the Debt Securities of any series, means such other place or places, if any, where any principal of (and premium, if any, on) or interest on the Debt Securities of that series are payable as contemplated by Section 3.01.
"Pounds Sterling" or "(pound)" means the currency of the United Kingdom.
"Predecessor Security" of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by such particular Debt Security; and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 3.06 in lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Debt Security.
"Principal Indexed Security" means any Debt Security (including any Interest Indexed Security) that provides that the amount of principal payable in respect thereof shall be determined by reference to an index based on a currency or currencies or on the price or prices of one or more commodities or securities, by reference to changes in the price or prices of one or more currencies, commodities or securities or otherwise by application of a formula.
"Redemption Date", when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Debt Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Register" and "Registrar" have the respective meanings specified in Section 3.05.
"Registered Security" means any Debt Security in the form of registered securities established pursuant to Section 2.02 that is registered in the Register.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Debt Securities of any series means the date (whether or not a Business Day) specified for that purpose as contemplated by Section 3.01.
"Responsible Officer" when used with respect to the Trustee means any officer within the Corporate Trust department of the Trustee (or any successor group), including any vice president, assistant vice president, assistant secretary, assistant treasurer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Solvency Condition" has the meaning specified in Section 12.01(c)(i).
"Solvent" has the meaning specified in Section 12.01(d)(ii).
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Company pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Debt Security or any installment of interest thereon, means the date, if any, specified in, or determined in accordance with the terms of, such Debt Security or a Coupon representing such installment of interest as the fixed date on which any principal of such Debt Security or such installment of interest is due and payable.
"Subordinated Indebtedness" means any liability of the Company however arising for the payment of money, the right to payment of which by the Company by the terms thereof is, or is expressed to be, subordinated in the event of a winding up of the Company to the claims of all or any of the creditors of the Company.
"Taxing Jurisdiction" has the meaning specified in Section 10.04.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Debt Securities of any series shall mean the Trustee with respect to the Debt Securities of such series.
"U.S. Government Obligations" has the meaning specified in
Section 14.02.
"United States" means the United States of America (including the States thereof and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction.
Section 1.02. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer's Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. The Trustee may conclusively rely and shall be fully protected in relying on such certificates and opinions.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture, other than certificates provided pursuant to Section 10.05, shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based is erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters or information which is in the possession of the Company, upon a certificate or opinion of, or representations by, an officer or officers of the Company with respect to such factual matters, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters is or are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing or any other evidence as the Trustee deems acceptable in its reasonable discretion or is customary in respect of DTC. If the Debt Securities of a series are issuable in whole or in part as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may, alternatively, be embodied in and evidenced by the record of a meeting of Holders of Debt Securities of such series duly called and held in accordance with the provisions of Article Fifteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments or record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of any notary public or other officer authorized by law to take acknowledgements of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any manner that the Trustee deems sufficient.
(c) The ownership of Registered Securities of any series shall be proved by the Register with respect to such series.
(d) The principal or face amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
Depositary, by any trust company, bank, banker or other Depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
Depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
of affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing, the authority of the Person executing the same and the principal or face amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the same may also be proved in any other manner that the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
(f) If the Company shall solicit from the Holders of Debt Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by Board Resolution, fix in advance a record date for the purposes of determining the identity of Holders of Registered Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Any such record date shall be fixed at the Company's discretion. If such a record date is fixed, such request, demand, authorization, direction, notice, consent and waiver or other Act may be sought or given before or after the record date, but only the Holders of Registered Securities of record at the close of business on such record date shall be deemed to be Holders of Registered Securities for the purpose of determining whether Holders of the requisite proportion of Debt Securities of such series Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Registered Securities of such series Outstanding shall be computed as of such record date.
(g) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Debt Security shall bind every future Holder of the same Debt Security and any Debt Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, suffered or omitted by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Debt Security.
(h) For the purposes of determining the aggregate principal
amount of Outstanding Debt Securities of any series, the Holders of which are
required, requested or permitted to give any request, demand, authorization,
direction, notice, consent or waiver or take any other Act under this Indenture,
(i) each Discount Debt Security shall be deemed to have the principal amount
determined by the Trustee that could be declared to be due and payable pursuant
to the terms of such Discount Debt Security as of the date such Act is delivered
to the Trustee and, where it is hereby expressly required, to the Company, (ii)
each Principal Indexed Security shall be deemed to have a principal amount equal
to the face amount thereof and (iii) each Debt Security denominated in a Foreign
Currency shall be deemed to have the principal amount determined by the Trustee,
based upon an Exchange Rate Agent's Certificate upon which the Trustee may
conclusively rely, by converting the principal amount of such Debt Security in
the currency in which such Debt Security is denominated into Dollars at the
Exchange Rate as of the record date set with respect to such Act or, if no such
record date is set, the date such Act is delivered to the Trustee and, where it
is hereby expressly required, to the Company (or, if there is no such rate on
such date for the reasons specified in Section 3.11(d), such rate on the date
specified in such Section).
Section 1.05. Notices, etc., to Trustee or Company. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made to the Trustee at its Corporate Trust Office, given, furnished or filed in writing and mailed, first class postage prepaid, or if by the Company, via electronic communication such as facsimile, and followed by a hard copy delivered by guaranteed overnight delivery courier, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing, or via telex or facsimile and mailed, first-class postage prepaid, or, in the case of electronic communication, transmitted, to the Company marked for the attention of the Secretary and addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address or at any telex or facsimile number previously furnished in writing to the Trustee by the Company.
Section 1.06. Notice to Holders; Waiver. Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of any event, (1) such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of Registered Securities affected by such event, at his address as it appears in the Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice and (2) such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in The City of New York. If the Debt Securities of such series are then admitted to the official list of the UK Listing Authority and admitted to trading on the London Stock Exchange plc, and the UK Listing Authority or such stock exchange shall so require, notices shall also be published in an Authorized Newspaper in London and, if the Debt Securities of such series are then listed on the Luxembourg Stock Exchange and such stock exchange shall so require, in Luxembourg and, if the Debt Securities of such series are then listed on any other stock exchange outside the United States and such stock exchange shall so require, in any other required city outside the United States or, if not practicable, in Europe on a Business Day at least twice, the first such publication to be not earlier than the earliest date and not later than the latest date prescribed for the giving of such notice. For the avoidance of doubt, failing to put the notice in an Authorized Newspaper will not affect the sufficiency of any notice given in accordance with the first sentence of this Section 1.06.
In the event of suspension of regular mail service or if for any other reason it shall be impracticable to give such notice to Holders of Registered Securities by mail, then such a notification to Holders of Registered Securities as shall be satisfactory to the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed to any particular Holder of Registered Securities shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice by publication to Holders of Bearer Securities given as provided above.
In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Debt Securities listed on such stock exchange requiring publication as provided above, then such notification to Holders of such Debt Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither failure to give notice by publication to Holders of such Debt Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice mailed to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent, election, waiver or other Act required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
Section 1.07. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
Section 1.08. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether expressed or not.
Section 1.10. Separability Clause. In case any provision in this Indenture or in the Debt Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture. Nothing in this Indenture or in the Debt Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law. THIS INDENTURE AND THE DEBT
SECURITIES AND COUPONS AND THE RIGHTS AND DUTIES OF THE TRUSTEE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK,
EXCEPT THAT MATTERS RELATING TO THE SUBORDINATION PROVISIONS CONTAINED IN
ARTICLE TWELVE OF THIS INDENTURE AND IN THE DEBT SECURITIES AND THE
AUTHORIZATION AND EXECUTION BY THE COMPANY OF THIS INDENTURE AND THE DEBT
SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH ENGLISH LAW.
Section 1.13. Legal Holidays. In any case where any Interest Payment Date, Redemption Date, Event Date or Stated Maturity, if any, of any Debt Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Debt Securities or Coupons) payment of any interest, principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the first succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, the Redemption Date, the Event Date or at the Stated Maturity, and no interest shall accrue on such payment for the period from and after such Interest Payment Date, Event Date, Redemption Date or Stated Maturity, as the case may be.
Section 1.14. Immunity of Incorporators, Stockholders, Officers and Directors. No recourse shall be had for the payment of any principal, premium or interest in respect of any Debt Security of any series or upon any obligation, covenant or agreement of this Indenture or any Indenture supplemental hereto, or any Debt Security or Coupon, or because of any indebtedness evidenced thereby, or for any claim based thereon, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Debt Securities of each series are solely corporate obligations of the Company, and that no personal liability whatsoever shall attach to, or is incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any predecessor or successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities of any series or Coupon, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the Debt Securities of each series and Coupons.
Section 1.15. Appointment of Agent; Submission to Jurisdiction; Waiver of Immunity. The Company has designated and appointed HSBC Bank USA, currently having its address at 452 Fifth Avenue, New York, New York 10018-2706 (c/o Issuer Services), as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Debt Securities or Coupons appertaining thereto or this Indenture which may be instituted in any State or Federal court in The City of New York. By the execution and delivery of this Indenture, the Company submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Company, shall be deemed in every respect effective service of process upon the Company, in any such suit or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said agent in full force and effect so long as any of the Debt Securities shall be Outstanding.
The Company hereby represents that HSBC Bank USA has agreed to act as the Company's authorized agent upon which process may be served in any such suit or proceeding.
ARTICLE TWO
FORMS OF DEBT SECURITIES
Section 2.01. Forms Generally. All Debt Securities and Coupons, if any, and the Trustee's certificate of authentication shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or by a Board Resolution and as set forth in an Officer's Certificate or any indenture supplemental hereto and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which Debt Securities of any series may be listed or of any automated quotation system on which such Debt Securities may be quoted, or to conform to usage.
The definitive Debt Securities and Coupons, if any, of each series shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which Debt Securities of such series may be listed or of any automated quotation system on which such Debt Securities may be quoted or in any other manner deemed appropriate by the Company, all as determined by the officers executing such Debt Securities and Coupons, as conclusively evidenced by their execution of such Debt Securities and Coupons.
Section 2.02. Form of Debt Securities. Each Debt Security
shall be substantially in one of the forms approved from time to time by or
pursuant to a Board Resolution and an Officer's Certificate or one or more
indentures supplemental hereto which shall set forth the information required by
Section 3.01. Unless otherwise provided as contemplated by Section 3.01 with
respect to the Debt Securities of any series, the Debt Securities of each series
shall be issuable in bearer form and represented by a Permanent Global Security.
If so provided as contemplated by Section 3.01, the Debt Securities of a series
shall be issuable in whole or in any part (a) in bearer form, with interest
Coupons attached, (b) in registered and bearer form or (c) in the form or one or
more Global Securities.
Each Bearer Security and Coupon not represented by a Permanent Global Security shall bear a legend to the following effect: "Any United States Person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code."
Section 2.03. Form of Trustee's Certificate of Authentication. The form of the Trustee's certificate of authentication to be borne by the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of a series issued under the within-mentioned Indenture.
The Bank of New York as Trustee
Section 2.04. Form of Trustee's Certificate of Authentication by an Authenticating Agent.
If at any time there shall be an Authenticating Agent appointed with respect to any series of Debt Securities, then the Trustee's Certificate of Authentication by such Authenticating Agent to be borne by the Debt Securities of each such series shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of a series issued under the within-mentioned Indenture.
The Bank of New York as Trustee
By
Authorized Signatory
ARTICLE THREE
THE DEBT SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Debt Securities that may be authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall distinguish the Debt Securities of such series from all other Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of
the Debt Securities of the series that may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of the series
pursuant to Section 3.04, Section 3.05, Section 3.06, Section
9.06 Section 11.06 or Section 11.07);
(3) the dates on which or periods during which the Debt Securities of the series may be issued, and the dates, if any, on which, or the range of dates, if any, within which, any principal (and premium, if any) in respect of the Debt Securities of such series is or may be payable or that Debt Securities of such series will be perpetual;
(4) the rate or rates, if any, or the method of determination thereof at which the Debt Securities of the series shall bear interest, if any, the date or dates, if any, from which such interest shall accrue, the Interest Payment Dates, if any, on which such interest shall be payable and in the case of Registered Securities, the Regular Record Dates for the interest payable on such Interest Payment Dates;
(5) the periods within which or the dates on which, the prices at which and the terms and conditions upon which Debt Securities of the series may be redeemed, if any, in whole or in part, at the option of the Company or otherwise;
(6) whether the Debt Securities of the series are to be issued as Discount Debt Securities and the amount of the discount at which such Discount Debt Securities may be issued;
(7) the place or places where any principal, premium or interest in respect of Debt Securities of the series shall be payable;
(8) whether payments are subject to a Solvency Condition;
(9) whether there are any other conditions to which payments with respect to such Debt Securities are subject;
(10) provisions, if any, for the discharge and defeasance of Debt Securities of the series;
(11) whether the Debt Securities of the series are to be issued as Registered Securities or Bearer Securities or both, and, if Bearer Securities are issued, whether Coupons will be attached thereto, whether Bearer Securities of the series may be exchanged for Registered Securities of the series and the circumstances under which and the places at which any such exchange, if permitted, may be made;
(12) if any Debt Securities of the series are to be issued as Bearer Securities or as one or more Global Debt Securities representing individual Bearer Securities of the series, (a) whether the provisions of Section 10.04 and Section 11.08 or other provisions for payment of additional interest or tax redemptions shall apply and, if other provisions shall apply, such other provisions; provided, however, that no such other provisions shall, without the consent of the Trustee, impose material additional burdens on the Trustee not contemplated by this Indenture; (b) whether interest in respect of any portion of a temporary Global Security of the series (delivered pursuant to Section 3.04) payable in respect of any Interest Payment Date prior to the exchange of such temporary Global Security for a permanent Global Security or for a definitive Bearer Security of the series shall be paid to any clearing organization or other Person entitled to interest payable on such Interest Payment Date with respect to the portion of such temporary Global Security held for its account and the terms and conditions (including any certification requirements) upon which any such interest payment will be made; and (c) the terms upon which a temporary Global Security may be exchanged for a permanent Global Security or for a definitive Bearer Security of the series, provided, that if no terms are specified upon which a temporary Global Security may be exchanged for a definitive Bearer Security, such temporary Global Security shall, if exchangeable at all, only be exchangeable for a definitive Debt Security in registered form;
(13) whether any Debt Securities of the series are to be issued in whole or in part in the form of one or more Global Securities, provided, that if not so specified, Debt Securities shall be issued in whole in the form of one or more Global Securities; and, in the case of Debt Securities to be issued in whole in the form of one or more Global Securities, the Depositary for such Global Security or Debt Securities and the terms and conditions, if any, upon which interests in such Global Security or Debt Securities may be exchanged in whole or in part for the individual Debt Securities represented thereby, provided, that if no terms are specified for such exchange, a Global Security or Debt Security shall, if exchangeable at all, only be exchangeable for an individual Debt Security in registered form;
(14) the denominations in which Debt Securities of the series,
if any, shall be issuable, if other than denominations as provided in
Section 3.02;
(15) if other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(16) the currency or currencies of denomination of Debt Securities of the series, which may be Dollars or any Foreign Currency;
(17) the currency or currencies in which payment of any principal of (and premium, if any, on) or interest on the Debt Securities of the series may be made, and the currency or currencies, if any, in which payment of any principal of (and premium, if any, on) or interest on Debt Securities of the series may, at the election of Holders thereof, also be payable, and the Exchange Rate Agent, if any, designated for the Debt Securities of the series;
(18) if payments of any principal, premium or interest in respect of Debt Securities of the series may, at the election of the Holders, be made in a Foreign Currency other than the Foreign Currency in which such Debt Securities are denominated or stated to be payable, the periods within which, and the terms and conditions upon which, such election may be made and the time and the manner of determining the exchange rate between the currency in which such Debt Securities are denominated or stated to be payable and the currency in which such amounts are to be paid pursuant to such election;
(19) whether any Debt Securities of the series are to be issued as Indexed Securities and, if so, the manner in which the principal of (and premium, if any, on) or interest thereon shall be determined and the amount payable upon acceleration under Section 5.02 and any other terms in respect thereof;
(20) any restrictive covenants provided for with respect to Debt Securities of the series;
(21) any other Events of Default;
(22) whether the Debt Securities of the series shall be convertible or exchangeable at the option of the Company for any other securities to be delivered by the Company pursuant to Article Thirteen (any such exchange being referred to herein as the "Exchange" and any such conversion being referred to herein as the "Conversion"; the date of such exchange or conversion being referred to as the "Event Date"; the securities to be delivered by the Company in exchange for such Debt Securities being referred to as "Exchange Securities" and the securities to be delivered by the Company upon the conversion of such Debt Securities being referred to as "Conversion Securities") and, if so, the nature of the Exchange Securities or Conversion Securities, as the case may be, and any additional or other provisions relating to such Exchange or Conversion; and
(23) any other terms of the series (which terms shall not adversely affect any prior series of Debt Securities or be inconsistent with the provisions of the Trust Indenture Act).
All Debt Securities of any one series and the Coupons appertaining to Bearer Securities of such series, if any, shall be substantially identical except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officer's Certificate or provided in or pursuant to any such indenture supplemental hereto. All Debt Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened for issuance of additional Debt Securities of such series.
If any of the terms of the Debt Securities of a series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the appropriate officer of the Company and delivered to the Trustee at or prior to the delivery of the Officer's Certificate setting forth the terms of such Debt Securities.
Section 3.02. Denominations. Unless otherwise provided as contemplated by
Section 3.01 with respect to the Debt Securities of any series and except as
provided in Section 3.03, the Registered Securities of each series, if any,
shall be issuable in denominations of $1,000, (euro)1,000 or (pound)1,000 and
any integral multiple thereof and the Bearer Securities of each series, if any,
shall be issuable in denominations of $1,000, $10,000 and $100,000; (euro)1,000,
(euro)10,000 and (euro)100,000 or (pound)1,000, (pound)10,000 and
(pound)100,000.
Section 3.03. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities and the Coupons appertaining thereto shall be executed on behalf of the Company by an authorized officer. Such signature and the attestation, if any, to the affixing of the seal may be in the form of facsimile signature of any present or any future authorized officer and may be imprinted or otherwise reproduced on the Debt Securities. The Company may adopt and use the signatures or facsimile signatures of the persons who shall be authorized signatories of the Company at the time of execution of the Debt Securities and any Coupons appertaining thereto, irrespective of the date as of which the same shall be executed, or of any person who shall have been an authorized officer of the Company, notwithstanding the fact that at the time the Debt Securities shall be authenticated and delivered or disposed of such person shall have ceased to be an authorized officer as the case may be.
(b) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver one or more Debt Securities of any series executed by the Company to the Trustee or the Authenticating Agent for authentication, together with a Company Order for the authentication and delivery of such Debt Securities, and the Trustee or the Authenticating Agent in accordance with the Company Order shall authenticate and deliver such Debt Securities provided, however, that, in connection with its original issuance, a Bearer Security not represented by a Permanent Global Security may be delivered only outside the United States; and provided further that, in connection with the original issuance of any Bearer Security other than a temporary Global Security or a Permanent Global Security, unless otherwise delivered by the Company on advice of counsel, neither the Company nor its agent shall deliver any Bearer Security unless the Company or its agent receives from the person entitled to delivery of such Bearer Security a certificate substantially in the form set forth in Exhibit A hereto, dated as of the date of such delivery, and neither the Company nor its agent has any reason to know that such certificate is false. If the Company shall establish pursuant to Section 3.01 that the Debt Securities of any series may be originally issued from time to time, the Trustee or the Authenticating Agent shall authenticate and deliver Debt Securities of such series for original issue from time to time in accordance with such procedures acceptable to the Trustee as may be specified from time to time by Company Order. Such procedures may authorize authentication and delivery pursuant to written instructions or instructions via electronic communication such as telex or facsimile confirmed in writing by guaranteed delivery overnight courier from the Company or its duly authorized agent. The Trustee shall be entitled to receive, prior to the authentication and delivery of the Debt Securities of any series, the supplemental indenture or the Board Resolution by or pursuant to which the terms and form of such Debt Securities have been approved (and, if such form is approved pursuant to a Board Resolution, the Officer's Certificate approving such terms and form), an Officer's Certificate as to the absence of any event that is, or after notice or lapse of time or both would become, an Event of Default, and, if requested by the Trustee, an Opinion of Counsel stating that:
(1) all instruments furnished by the Company to the Trustee in connection with the authentication and delivery by the Trustee of such Debt Securities and Coupons, if any, conform to the requirements of this Indenture and constitute sufficient authority hereunder for the Trustee to authenticate and deliver such Debt Securities;
(2) the forms of such Debt Securities and Coupons, if any, have been established in conformity with the provisions of this Indenture;
(3) the terms of such Debt Securities and Coupons, if any, have been established in conformity with the provisions of this Indenture;
(4) in the event that the forms or terms of such Debt Securities and Coupons, if any, have been established in a supplemental indenture, the execution and delivery of such supplemental indenture by the Company has been duly authorized by all necessary corporate action of the Company, such supplemental indenture has been duly executed and delivered by the Company and, assuming that the Trustee has satisfied those legal requirements that are applicable to it to the extent necessary to make such supplemental indenture enforceable against it, is a legal, valid, binding and enforceable agreement of the Company, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(5) the execution and delivery of such Debt Securities and Coupons, if any, have been duly authorized by all necessary corporate action of the Company and such Debt Securities and Coupons, if any, have been duly executed by the Company and, assuming due authentication by the Trustee (or the Authenticating Agent, as the case may be) and delivery by the Company are the legal, valid, binding and enforceable obligations of the Company entitled to the benefits of the Indenture, subject to applicable bankruptcy insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); and
(6) such other matters as the Trustee may reasonably request.
Notwithstanding any contrary provision herein, if the Company shall establish pursuant to Section 3.01 that the Debt Securities of a series may be originally issued from time to time, it shall not be necessary to deliver the Board Resolution, Officer's Certificate and Opinion of Counsel otherwise required pursuant to this Section or Section 1.02 at or prior to the time of authentication of each Debt Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Debt Security of such series to be issued but the Trustee shall be entitled to request and receive copies thereof.
(c) Unless the Company specifies pursuant to Section 3.01 that the Debt Securities of a series will be made available in definitive bearer form, such Debt Securities shall be issued in the form of one or more Global Securities in permanent form, and the Company shall execute and the Trustee or the Authenticating Agent shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more Global Securities that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of such series to be represented by one or more Global Securities and (ii) if in registered form, shall be registered in the name of the Depositary for such Global Security or Debt Securities or the nominee of such Depositary and be delivered by the Trustee to such Depositary or pursuant to such Depositary's instruction; if in bearer form, shall be delivered to and held by the Depositary in accordance with the Debt Security Deposit Agreement, dated o.
(d) The Trustee shall have the right to decline to authenticate and deliver any Debt Security under this Section if the Trustee, upon the advice of counsel, determines that such action may not lawfully be taken or if the Trustee, by a committee of Responsible Officers, shall determine in good faith that the authentication and delivery of such Debt Security would be unjustly prejudicial to Holders of Outstanding Debt Securities.
(e) Each Debt Security shall be dated the date of its authentication.
(f) No Debt Security or Coupon attached thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Debt Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of one of its authorized signatories, and such certificate of authentication upon any Debt Security shall be conclusive evidence, and the only evidence, that such Debt Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Except as permitted by Section 3.05 or Section 3.06, neither the Trustee nor the Authenticating Agent shall authenticate and deliver any Bearer Security unless all appurtenant Coupons for interest then matured have been detached and cancelled.
Section 3.04. Temporary Debt Securities. If so provided pursuant to Section 3.01, pending the preparation of a permanent Global Security or definitive Debt Securities of any series, the Company may execute, and upon Company Order the Trustee or the Authenticating Agent shall authenticate and deliver, temporary Debt Securities that are printed, lithographed, typewritten, photocopied or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Debt Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more Coupons or without Coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Debt Securities and Coupons may determine to be appropriate, as conclusively evidenced by their execution of such Debt Securities and Coupons. In the case of Debt Securities of any series, such temporary Debt Securities may be in global form, representing all or a portion of the Outstanding Debt Securities of such series.
If temporary Debt Securities of any series are issued, the
Company will cause definitive Debt Securities of such series to be prepared
without unreasonable delay. Except as otherwise specified as contemplated by
Section 3.01(12) with respect to a series of Debt Securities issuable as Bearer
Securities or as one or more Global Debt Securities representing individual
Bearer Securities of the series, (i) after the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company
in a Place of Payment for such series, without charge to the Holder, except as
provided in Section 3.05 in connection with a transfer and except that a Person
receiving definitive Bearer Securities shall bear the cost of insurance,
postage, transportation and the like unless otherwise specified pursuant to
Section 3.01, and (ii) upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons
appertaining thereto), the Company shall execute and the Trustee or the
Authenticating Agent shall authenticate and deliver in exchange therefor a like
principal amount (or, in the case of any Principal Indexed Security, face
amount), in any authorized denomination or denominations, of definitive Debt
Securities of the same series and of like tenor; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided further that neither a permanent Global
Security in bearer form nor a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security unless the Company or its agent
receives a certificate substantially in the form set forth in Exhibit A hereto,
dated as of the date of such exchange, unless such certificate has previously
been provided pursuant to the provisions of the next succeeding paragraph; and
provided further that delivery of a Bearer Security not represented by a
Permanent Global Security shall occur only outside the United States; and
provided further that neither a permanent Global Security in bearer form nor a
definitive Bearer Security will be issued if the Company or its agent has reason
to know that such certificate is false. Until so exchanged, the temporary Debt
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities of such series except as
otherwise specified pursuant to Section 3.01 with respect to the payment of any
interest on Debt Securities in temporary form.
If any Interest Payment Date with respect to a temporary Debt Security in bearer form shall occur prior to the exchange described in the preceding paragraph, any interest payable on such Interest Payment Date shall be paid only upon the delivery of a certificate substantially in the form set forth in Exhibit A hereto, dated as of the date the related payment of interest is made.
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the individual Debt Securities represented thereby pursuant to this Section 3.04 or Section 3.05, the temporary Global Security shall be endorsed by the Registrar to reflect the reduction of the principal amount (or, in the case of any Principal Indexed Security, face amount) evidenced thereby, whereupon the principal amount (or, in the case of any Principal Indexed Security, face amount) of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed.
Section 3.05. Registration, Registration of Transfer and Exchange. The Company shall cause to be kept a register (herein sometimes referred to as the "Register") in which, subject to such reasonable regulations as the Company may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. HSBC Bank USA is hereby appointed "Registrar" for the purpose of registering Debt Securities and transfers of Debt Securities as herein provided. Unless and until otherwise determined by the Company, HSBC Bank USA shall act as Registrar and the Register shall be kept at the office of the Registrar at 452 Fifth Avenue, New York, New York 10018-2706 (c/o Issuer Services). Such Register shall be in written form or in any other form capable of being converted into written form within a reasonable period of time. At all reasonable times the Register shall be open for inspection by the Company and its duly authorized agents.
Upon surrender for registration of transfer of any Registered Security of any series at the office or agency of the Company maintained for such purpose (the "Registration Office"), the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of such series, of like tenor and aggregate principal amount (or, in the case of any Principal Indexed Security, face amount), in any authorized denomination or denominations.
At the option of the Holder, Registered Securities of any series (other than a Global Security, except as set forth below) may be exchanged for other Registered Securities of such series of like tenor and aggregate principal amount (or, in the case of any Principal Indexed Security, face amount), in any authorized denomination or denominations, upon surrender of the Registered Securities to be exchanged at the Registration Office. Bearer Securities may not be delivered by the Trustee, the Authenticating Agent or the Registrar in exchange for Registered Securities.
At the option of the Holder, except as otherwise specified
pursuant to Section 3.01(11) or Section 3.01(13), Bearer Securities of any
series may be exchanged for Registered Securities (if the Debt Securities of
such series are issuable as Registered Securities) or (in the case of Bearer
Securities not represented by a Permanent Global Security) Bearer Securities (if
Bearer Securities of such series are issuable in more than one denomination) of
such series of like tenor and aggregate principal amount (or, in the case of any
Principal Indexed Security, face amount), in any authorized denomination or
denominations, upon surrender of the Bearer Securities to be exchanged at the
Registration Office, with all unmatured Coupons and all matured Coupons in
default or unpresented thereto appertaining; provided, however, that delivery of
a Bearer Security shall occur only outside the United States. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default or unpresented, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Registrar in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons
may be waived by the Company and the Registrar if there be furnished to them
such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to any Paying Agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
Section 10.02, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at the Registration Office in exchange for
a Registered Security of the same series after the close of business at the
Registration Office on (i) any Regular Record Date and before the opening of
business at the Registration Office on the relevant Interest Payment Date or
(ii) any Special Record Date and before the opening of business at the
Registration Office on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver, the Debt Securities that the Holder making the exchange is entitled to receive.
The Company's express election pursuant to Section 3.01(13)
(if any) shall no longer be effective with respect to the Debt Securities of
such series if at any time (1) (i) the Depositary for the Debt Securities of a
series notifies the Company in writing that it is unwilling or unable to
continue as Depositary for the Debt Securities of such series and a successor
Depositary is not appointed by the Company within 90 days of such notification,
(ii) DTC notifies the Depositary that it is unwilling or unable to continue to
hold interests in the Debt Securities or (iii) DTC is unable to or ceases to be
eligible as a clearing agency registered under the Exchange Act and a successor
to DTC registered under the Exchange Act is not appointed by the Depositary at
the written request of the Company within 90 days or (2) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depositary. In any such event the Company will execute, and the Trustee or the
Authenticating Agent, upon receipt of a Company Order for the authentication and
delivery of definitive Debt Securities of such series, will authenticate and
deliver, definitive Debt Securities of such series or any portion thereof in an
aggregate principal amount (or, in the case of any Principal Indexed Security,
face amount) equal to the aggregate principal amount (or, in the case of any
Principal Indexed Security, face amount) of the Global Security or Debt
Securities representing such series or portion thereof in exchange for such
Global Security or Debt Securities.
The Company may at any time and in its sole discretion determine that Debt Securities of any series issued in whole or in part in the form of one or more Global Securities shall no longer be represented by such Global Security or Global Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, definitive Debt Securities of such series in an aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) equal to the aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Global Security or Debt Securities representing such series or portion thereof in exchange for such Global Security or Debt Securities.
Unless otherwise specified by the Company pursuant to Section 3.01 with respect to the Debt Securities of any series, the Depositary for such series may surrender a Global Security representing Debt Securities of such series or any portion thereof in exchange in whole or in part for definitive Debt Securities of such series on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver such Debt Securities to the Registrar. In turn, the Registrar shall deliver such Debt Securities, without service charge,
(i) to each Person specified by such Depositary a new definitive Debt Security or Debt Securities of such series, of like tenor and in an aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) equal to and in exchange for such Person's beneficial interest in the Global Security, in any authorized denomination or denominations; and
(ii) to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount (or, in the case of any Principal Indexed Security, face amount) of the surrendered Global Security and the aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the definitive Debt Securities delivered to such Persons.
In any exchange provided for in any of the preceding two paragraphs, the Company will execute and the Trustee or the Authenticating Agent will authenticate and deliver Debt Securities (i) in definitive registered form in authorized denominations, if the Debt Securities of such series are issuable as Registered Securities, (ii) in definitive bearer form in authorized denominations with or without Coupons attached, as applicable, if the Debt Securities of such series are issuable as Bearer Securities or (iii) as either Registered Securities or Bearer Securities, if the Debt Securities of such series are issuable in either form; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form set forth in Exhibit A hereto; and provided further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security will be issued if the Company has reason to know that such certificate is false.
Upon the exchange in whole of a Global Security for the definitive Debt Securities represented thereby, such Global Security shall be cancelled by the Trustee or delivered to the Trustee for cancellation. Registered Securities issued in exchange for a Global Security or any portion thereof pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security shall instruct the Trustee and the Registrar. The Registrar shall deliver such Registered Securities to the Persons in whose names such Registered Securities are so registered.
The Registrar shall deliver Bearer Securities issued in exchange for a Global Security or any portion thereof pursuant to this Section to the Persons, and in such authorized denominations, as the Depositary for such Global Security, shall instruct the Registrar; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form set forth in Exhibit A hereto; and provided further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security will be issued if the Company has reason to know that such certificate is false.
Notwithstanding any other provision in this Indenture, unless express provision is made otherwise under Section 3.01 hereof, Global Notes shall, if exchangeable at all, only be exchangeable, in whole or in part, for definitive Debt Securities in registered form.
Interests in a Permanent Global Security may be exchanged for definitive Registered Securities of the same series if the Holder of such Permanent Global Security notifies the Company in writing that the owner of a beneficial interest in such Permanent Global Security has requested in writing to the Holder, in accordance with the instructions of the Holder, that definitive Registered Securities be issued to such owner in respect thereof. In such event the Company will execute, and the Trustee or the Authenticating Agent, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series will authenticate and deliver such definitive Registered Securities. Any such definitive Registered Securities so issued shall be registered in the name of such Person or Persons as the Holder shall instruct the Trustee and the Registrar in writing. Upon the exchange in whole or in part of a Permanent Global Security for definitive Registered Securities in corresponding aggregate principal amount, such Permanent Global Security shall be delivered to the Trustee for cancellation, in the case of an exchange in whole, or reduction, in the case of an exchange in part.
All Debt Securities issued upon any registration of transfer or exchange of Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Debt Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer, registration of transfer or exchange of
Debt Securities, other than exchanges pursuant to Section 3.04, Section 11.06 or
Section 11.07 not involving any transfer.
Neither the Company, the Trustee or the Authenticating Agent, as appropriate, shall be required (i) during the period beginning at the opening of business 15 days before the day on which a notice of redemption of Debt Securities of any series selected for redemption under Section 11.04 is mailed and ending at the close of business on the day of such mailing, to issue, register the transfer of or exchange any Registered Security of such series having the same original issue date and terms as the Debt Securities so selected for redemption or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Registered Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series (if the Debt Securities of such series are issuable as Registered Securities), provided that such Registered Security shall be immediately surrendered for redemption with written instructions for payment consistent with the provisions of this Indenture.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities. If (i) any mutilated Debt Security or a Bearer Security with a mutilated Coupon appertaining to it is surrendered to the Trustee or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Debt Security or Coupon, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Trustee that such Debt Security or Coupon has been acquired by a bona fide purchaser, the Company shall execute, and upon its written request the Trustee or the Authenticating Agent shall authenticate and deliver, in exchange for any such mutilated Debt Security or a Bearer Security with a mutilated Coupon appertaining to it or to which a destroyed, lost or stolen Coupon appertains (with all appurtenant Coupons not destroyed, lost or stolen) or in lieu of any such destroyed, lost or stolen Debt Security, a new Debt Security of the same series and of like tenor and aggregate principal amount (or, in the case of any Principal Indexed Security, face amount), bearing a number not contemporaneously outstanding, with Coupons corresponding to the Coupons, if any, appertaining to such destroyed, lost or stolen Debt Security or to the Debt Security to which such destroyed, lost or stolen Coupon appertains; provided, however, that delivery of a Bearer Security shall occur only outside the United States.
In case any such mutilated, destroyed, lost or stolen Debt Security or Coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Debt Security, pay such Debt Security or Coupon; provided, however, that payment of any principal of (and premium, if any, on) or interest on Bearer Securities not represented by a Permanent Global Security shall, except as otherwise provided in Section 10.02, be payable only at an office or agency located outside the United States; and provided further that, with respect to any such Coupon, interest represented thereby (but not any additional amount payable as provided in Section 10.04) shall be payable only upon presentation and surrender of the Bearer Security to which such Coupon appertains.
Upon the issuance of any new Debt Security or Coupon under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security of any series, with its Coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security, or in exchange for a Bearer Security to which a destroyed, lost or stolen Coupon appertains shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt Security and its Coupons, if any, shall be at any time enforceable by anyone, and any such new Debt Security and its Coupons, if any, or the destroyed, lost or stolen Coupon shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Debt Securities of that series and their Coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved. Interest, if any, in respect of any Registered Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Debt Security (or one or more Predecessor Debt Securities) is registered at the close of business on the Regular Record Date for such interest. In case a Bearer Security of any series is surrendered in exchange for a Registered Security of such series after the close of business (at an office or agency in a Place of Payment for such series) on any Regular Record Date and before the opening of business (at such office or agency) on the next succeeding Interest Payment Date, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture.
Payment of interest, if any, in respect of any Registered Security or any Permanent Global Security may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Register, or by wire transfer or transfer by any other means to an account designated in writing by such Person to the Paying Agent at least 15 days prior to such payment date or by any other means specified pursuant to Section 3.01.
Interest in respect of any Bearer Security with Coupons that
is payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Holder of the Coupon that has matured on such Interest
Payment Date upon surrender of such Coupon on such Interest Payment Date at the
Place of Payment outside the United States specified pursuant to Section 3.01.
Interest, if any, in respect of any Bearer Security without
Coupons that is payable and is punctually paid or duly provided for on any
Interest Payment Date shall be paid to the Holder of the Bearer Security upon
presentation of such Bearer Security and notation thereon on such Interest
Payment Date at the Place of Payment outside the United States specified
pursuant to Section 3.01.
Any interest in respect of Registered Securities or any Permanent Global Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holders thereof on the relevant Regular Record Date by virtue of their having been such Holders; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of such Defaulted Interest to the Persons in whose names such Registered Securities (or their respective Predecessor Debt Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Paying Agent and the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Registered Security and the date of the proposed payment, and at the same time the Company shall deposit with the Paying Agent an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee and the Paying Agent for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided and shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee and the Paying Agent of the notice of the proposed payment. Unless the Trustee is acting as the Registrar, promptly after such Special Record Date, the Company shall furnish the Trustee with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and respective principal amounts (or, in the case of any Principal Indexed Security, face amount) of such Registered Securities held by, the Holders appearing on the Register at the close of business on such Special Record Date. In the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of such Registered Securities at his address as it appears in the Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Registered Securities (or their respective Predecessor Debt Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). In case a Bearer Security of any series is surrendered at the office or agency in a Place of Payment for such series in exchange for a Registered Security of such series after the close of business at such office or agency on any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such proposed date of payment, and Defaulted Interest will not be payable on such proposed date of payment in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on Registered Securities of any series or any Permanent Global Security in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security shall carry the rights to interest, if any, accrued and unpaid, and to accrue, that were carried by such other Debt Security.
Section 3.08. Persons Deemed Owners. Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee,
the Registrar and the Paying Agent and any agent of the Company, the Trustee,
the Registrar or the Paying Agent may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of any principal, premium or (subject to
Section 3.07) interest in respect of such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee, the Registrar, the Paying Agent nor any agent
of the Company, the Registrar, the Paying Agent or the Trustee shall be affected
by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee shall treat the bearer of any Bearer Security and the bearer of any Coupon as the absolute owner of such Bearer Security or Coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or Coupon be overdue, and neither the Company or the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in any Global Security or Permanent Global Security or for maintaining, supervising or reviewing any records relating to such payments or beneficial ownership interests.
Section 3.09. Cancellation. Unless otherwise specified pursuant to Section 3.01 above with respect to the Debt Securities of any series, all Debt Securities and Coupons surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be promptly cancelled and delivered to the Trustee. The Company may at any time deliver to the Trustee for cancellation any Debt Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Debt Securities so delivered shall be promptly cancelled by the Trustee. No Debt Securities shall be authenticated in lieu of or in exchange for any Debt Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Debt Securities and Coupons held by the Trustee shall be destroyed and certification of their destruction delivered to the Company unless by a Company Order the Company shall direct that the cancelled Debt Securities or Coupons be returned to it.
Section 3.10. Computation of Interest. Except as otherwise specified as contemplated by Section 3.01 with respect to the Debt Securities of any series, any interest on the Debt Securities of each series, which is not denominated in Euro, shall be computed on the basis of a 360-day year of twelve 30-day months. Interest on Debt Securities of each series denominated in Euro will be computed on the basis of the actual number of days in the calculation period divided by 365 (or, if any portion of that calculation period falls in a leap year, the sum of (a) the actual number of days in that portion of the calculation period falling in a leap year, divided by 366 and (b) the actual number of days in that portion of the calculation period falling in a non-leap year, divided by 365).
Section 3.11. Payment in Currencies. (a) Payment of any
principal (and premium, if any) or interest in respect of the Debt Securities of
any series shall be made in the currency or currencies specified pursuant to
Section 3.01 with respect to the Debt Securities of such series; provided that,
if so specified pursuant to Section 3.01, the Holder of such series may elect to
receive such payment in Dollars or in any other currency designated for such
purpose pursuant to Section 3.01. A Holder may make such election by delivering
to the Paying Agent (with a copy to the Trustee) a written notice thereof,
substantially in the form attached hereto as Exhibit B or in such other form as
may be acceptable to the Paying Agent, not later than the close of business on
the Regular Record Date or Special Record Date immediately preceding the
applicable Interest Payment Date or the fifteenth day immediately preceding the
Maturity, if any, of any principal, as the case may be. Such election shall
remain in effect with respect to such Holder until such Holder delivers to the
Paying Agent (with a copy to the Trustee), a written notice substantially in the
form attached hereto as Exhibit B or in such other form as may be acceptable to
the Paying Agent specifying a change in the currency in which such payment is to
be made; provided that any such notice must be delivered to the Paying Agent
(with a copy to the Trustee) not later than the close of business on the Regular
Record Date or Special Record Date immediately preceding the next Interest
Payment Date or the fifteenth day immediately preceding the Maturity, if any, of
any principal, as the case may be, in order to be effective for the payment to
be made thereon; and provided further that no such change in currency may be
made with respect to payments to be made on any Registered Security with respect
to which notice of redemption has been given by the Company pursuant to Article
Eleven.
(b) Except as otherwise specified pursuant to Section 3.01 with respect to the Debt Securities of any series, the Paying Agent shall deliver to the Company, the Trustee and the Exchange Rate Agent, if any, not later than the fourth Business Day after the Regular Record Date or Special Record Date with respect to an Interest Payment Date or the tenth day immediately preceding the Maturity, if any, of any principal, as the case may be, with respect to Debt Securities of any series, a written notice specifying, in the currency or currencies in which such Debt Securities are denominated, the aggregate amount of any principal (and premium, if any) or interest or such Debt Securities to be paid on such payment date. If payments on any such Debt Securities are designated to be made in a currency other than the currency in which such Debt Securities are denominated, or if at least one Holder of a Registered Security has made the election referred to in Subsection (a) above with respect to such Debt Securities, then the written notice referred to in the preceding sentence shall also specify, in each currency in which payment with respect to such Debt Securities is to be made pursuant to said Subsection (a), the amount of any principal, premium or interest in respect of such Debt Securities to be paid in such currency on such payment date; provided that for purposes of such written notice, the Trustee shall be entitled to rely on any exchange rate information provided to it in writing or via electronic communication such as telex or facsimile by the Exchange Rate Agent.
(c) The Exchange Rate Agent shall deliver, not later than the
sixth Business Day following each Regular Record Date or Special Record Date or
the fifth day immediately preceding the Maturity, if any, of any principal, as
the case may be, to the Trustee, the Paying Agent and the Company an Exchange
Rate Agent's Certificate in respect of the Dollar or Foreign Currency payments
to be made on such payment date. Except as otherwise specified pursuant to
Section 3.01 with respect to the Debt Securities of any series, the amount
receivable by Holders of Registered Securities of any series who have elected
payment as provided in Subsection (a) above in a currency other than the
currency in which such Registered Securities are denominated shall be determined
by the Exchange Rate Agent on the basis of the applicable Exchange Rate set
forth in the applicable Exchange Rate Agent's Certificate.
(d) Except as otherwise specified pursuant to Section 3.01 with respect to the Debt Securities of any series, if the Foreign Currency in which Registered Securities of any series are denominated ceases to be used both by the government of the country issuing such Foreign Currency and for the settlement of transactions by public institutions of or within the international banking community, then, with respect to each date for the payment of any principal (and premium, if any) or interest in respect of such Debt Securities and any Coupons appertaining thereto occurring after the final date on which such Foreign Currency was so used, all payments in respect of such Debt Securities and any Coupons appertaining thereto shall be made in Dollars; provided that payment to a Holder of such a Registered Security shall be made in a different Foreign Currency if that Holder has elected or elects payment in such Foreign Currency as provided for by Subsection (a) above. If payment is to be made in Dollars to Holders of any such Debt Securities or Coupons pursuant to the provisions of the preceding sentence, then the amount to be paid in Dollars on a payment date by the Company to the Paying Agent (who shall promptly notify the Trustee) and by the Paying Agent (who shall promptly notify the Trustee) to such Holders shall be determined by the Paying Agent (who shall promptly notify the Trustee of such determinations) as of the Regular Record Date or Special Record Date with respect to such Interest Payment Date or the fifteenth day immediately preceding the Maturity, if any, of any principal, as the case may be, and shall be equal to the sum obtained by converting the specified Foreign Currency into Dollars at the Exchange Rate on the last such Record Date on which such Foreign Currency was so used in either such capacity.
(e) All decisions and determinations of the Paying Agent
regarding conversion of any Foreign Currency into Dollars pursuant to Subsection
(d) above or as specified pursuant to Section 3.01 with respect to the Debt
Securities of any series shall, in the absence of manifest error, be conclusive
for all purposes and irrevocably binding upon the Company and all Holders of the
Debt Securities. If a Foreign Currency in which payment in respect of Debt
Securities of any series may be made, pursuant to Subsection (a) above, ceases
to be used both by the government of the country issuing such currency and for
the settlement of transactions by public institutions of or within the
international banking community, the Company after learning thereof will give
notice thereof to the Trustee and the Paying Agent immediately (and the Paying
Agent promptly thereafter will give notice to the Holders of such Debt
Securities in the manner provided in Section 1.06) specifying the last date on
which such Foreign Currency was used for the payment of any principal, premium
or interest in respect of such Debt Securities. The Trustee and the Paying Agent
shall be fully justified and protected in relying conclusively and acting upon
the information so received by it from the Company and shall not otherwise have
any duty or obligation to determine such information independently.
Section 3.12. Certification by a Person Entitled to Delivery of a Bearer Security. Whenever any provision of this Indenture or a Debt Security contemplates that certification be given by a Person entitled to delivery of a Bearer Security, such certification shall be provided substantially in the form of Exhibit A hereto as such form may be modified pursuant to a Board Resolution, with only such changes as shall be approved by the Company.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge. If so specified pursuant to Section 3.01, this Indenture, with respect to the Debt Securities of any series payable only in Dollars (if all series of Debt Securities issued under this Indenture are not to be affected) shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of such Debt Securities herein expressly provided for) and the Trustee, at the expense of the Company, shall execute proper instruments, in a form satisfactory to the Company and the Trustee, acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered and all Coupons appertaining thereto
(other than (i) Coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing
after such exchange, surrender of which is not required or has
been waived as provided in Section 3.05, (ii) Debt Securities and
Coupons of such series that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 3.06,
(iii) Coupons appertaining to Bearer Securities of such series
called for redemption and maturing after the relevant Redemption
Date, surrender of which has been waived as provided in Section
11.06 and (iv) Debt Securities and Coupons of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for
cancellation; or
(B) all such Debt Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity, if any, within one year, or
(iii) are to be called for redemption, Exchange or Conversion within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose (i) Dollars in an amount, (ii) U.S. Government Obligations that through payment of interest and principal in respect thereof in accordance with their terms will provide, not later than the due date of any payment in an amount or (iii) any combination of (i) and (ii) in an amount sufficient to pay and discharge the entire indebtedness on such Debt Securities and Coupons for any principal (and premium, if any) or interest to the date of such deposit (in the case of Debt Securities and Coupons which have become due and payable) or to the Stated Maturity or Redemption Date or Event Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company in respect of the Debt Securities of such series; and
(3) the Company has delivered to the Trustee an Officer's Certificate and, if the Trustee so requests, an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07 and, if money shall have been deposited with the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive. The Company's rights and obligations under this Section 4.01 shall be subject to the consent of the Financial Services Authority, if required.
Section 4.02. Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Debt Securities, the Coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Persons entitled thereto, of any principal (and premium, if any) and interest, if any, for which payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default. Unless otherwise specified pursuant to Section 3.01 "Event of Default", wherever used herein with respect to Debt Securities of any series, means any one of the following events:
(i) the making or entry of any order by an English court which is not successfully appealed within 30 days after the date such order was made or entered for the winding up of the Company, or
(ii) the valid adoption by the shareholders of the Company, of any effective resolution for the winding up of the Company in either case other than in connection with a scheme of amalgamation or reconstruction not involving bankruptcy or insolvency.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Debt Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee may, or if so requested by the Holders of not less than 25% in principal amount of the Outstanding Debt Securities of that series, shall declare the principal amount (or such other amount as is specified pursuant to Section 3.01) together with the accrued but unpaid interest (or in the case of Discount Debt Securities, the accreted face amount together with accrued interest, if any, or, in the case of Indexed Securities, the amount specified pursuant to Section 3.01) of all of the Debt Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Debt Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Debt Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(A) the principal of (and premium, if any, on) any Debt Securities of such series which have become due and payable otherwise than by such declaration of acceleration and any due and payable interest, and overdue interest, if any, thereon at the rate or rates prescribed therefor in such Debt Securities; and
(B) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to the Debt Securities of such series have been remedied.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03. Defaults; Collection of Indebtedness and Suits for Enforcement by Trustee. Unless otherwise provided and contemplated pursuant to Section 3.01 with respect to the Debt Securities of any series, "Default", wherever used herein, means any one of the following events (whatever the reason for such Default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) the Company fails to pay any interest upon any Debt Security or any related Coupon and such default continues for 14 days; or
(2) the Company fails to pay the principal of (or premium, if any, on) any Debt Security of any series at its Maturity and such failure is continued for seven days;
provided that, if the Company does not pay any installment of interest on the pertinent Interest Payment Date or all or any part of principal at Maturity, the obligation to make such payment and such Interest Payment Date or Maturity, as the case may be, shall be deferred until (i) in the case of a payment of interest, the date upon which a dividend is paid on any class of share capital of the Company and (ii) in the case of a payment of principal, the first Business Date after the date that falls six months after the original Maturity. Failure by the Company to make any such payment prior to such deferred Interest Payment Date or Maturity shall not constitute a default by the Company or otherwise allow any Holder to sue the Company for such payment or to take any other action. Any payment so deferred shall not be treated as due for any purpose (including, without limitation, for the purposes of ascertaining whether or not a Default has occurred) until the deferred Interest Payment Date or Maturity, as the case may be.
If a Default occurs, the Trustee may, to enforce the obligations of the Company, institute proceedings in England (but not elsewhere) for the winding up of the Company, provided that the Trustee may not, upon the occurrence of a Default, unless an Event of Default has occurred and is continuing, accelerate the Maturity of any of the Outstanding Debt Securities.
Notwithstanding the foregoing, failure to make any payment in respect of the Debt Securities shall not be a Default in respect of such Debt Securities if such payment is withheld or refused, (i) in order to comply with any fiscal or other law or regulation or with the order of any court of competent jurisdiction, in each case applicable to such payment or (ii) in case of doubt as to the validity or applicability of any such law, regulation or order, in accordance with advice given with respect to validity or applicability of such law, regulation or order at any time during said period of 14 Days (in the case of payments under Clause (1) above) or seven Days (in the case of payments under Clause (2) above) by independent legal advisers acceptable to the Trustee, provided, however, that the Trustee may by notice to the Company require the Company to take such action (including but not limited to proceedings for a declaration by a court of competent jurisdiction) as the Trustee may be advised in an opinion of counsel, upon which opinion the Trustee may conclusively rely, is appropriate and reasonable in the circumstances to resolve such doubt, in which case the Company shall forthwith take and expeditiously proceed with such action and shall be bound by any final resolution of the doubt resulting therefrom. If any such resolution determines that the relevant payment can be made without violating any applicable law, regulation or order then the provisions of the preceding sentence shall cease to have effect and such payment shall become due and payable on the expiration of 14 Business Days (in the case of payments under Clause (1) above) or seven Business Days (in the case of payments under Clause (2) above) after the Trustee gives written notice to the Company informing it of such resolution.
Section 5.04. Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Company or any other obligor upon the Debt Securities of a particular series or any related Coupons or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether any principal in respect of such Debt Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of any principal (and premium, if any) or interest owing and unpaid with respect to the Debt Securities of such series and any appurtenant Coupons and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Debt Securities or Coupons or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
The provisions of this Section 5.04 are subject to the provisions of Article Twelve.
Section 5.05. Trustee May Enforce Claims Without Possession of Debt Securities or Coupons. All rights of action and claims under this Indenture or the Debt Securities or Coupons may be prosecuted and enforced by the Trustee without the possession of any of the Debt Securities or Coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name, as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Debt Securities and Coupons in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall, subject to the provisions of Article Twelve, be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of any principal, premium or interest, upon presentation of the Debt Securities or any Coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for any principal of (and premium, if any, on) or interest on the series of Debt Securities and any appurtenant Coupons, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such series of Debt Securities and any appurtenant Coupons for any principal (and premium, if any) or interest, respectively; and
THIRD: The balance, if any, to the Company or other Person or Persons entitled thereto.
Section 5.07. Limitation on Suits. No Holder of any Debt Security of any series and any appurtenant Coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default or Default with respect to the Debt Securities of such series;
(2) the Holders of not less than a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of such series have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been received by the Trustee during such 60-day period from the Holders of a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.08. Unconditional Right of Holders to Receive Any Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Debt Security or Coupon shall have the absolute and unconditional right to receive payment of any principal of (and premium, if any, on) or (subject to Section 3.07) interest on such Debt Security or payment of such Coupon on the respective Stated Maturity or Maturities, if any, expressed in such Debt Security or Coupon (or, in the case of redemption or exchange, on the Redemption Date or the Event Date, as the case may be) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative. Except as otherwise provided in Section 6.01, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Debt Security or Coupon to exercise any right or remedy accruing upon any Event of Default or Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders of Debt Securities. The Holders of a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Debt Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture;
(2) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceeding so directed would be unjustly prejudicial to the Holders of Debt Securities of such series not joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the Trustee, which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of any series may, on behalf of the Holders of all the Debt Securities of any such series and any related Coupons, waive any past event of default or any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of any principal of (or premium, if any, on) or any installment of interest or related deferred payment on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof that under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Debt Security affected thereby.
Upon any such waiver, such default shall cease to exist, and any Event of Default or Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Debt Security or Coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of any principal of (or premium, if any, on) or interest on any Debt Security or the payment of any Coupon on or after the respective Stated Maturity or Maturities, if any, expressed in such Debt Security or Coupon (or, in the case of redemption or Exchange or Conversion on or after the Redemption Date or the Event Date, as the case may be).
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) With respect to Debt Securities of any series, except during the continuance of an Event of Default or Default with respect to the Debt Securities of such series,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default or Default with respect to Debt Securities of any series or any appurtenant Coupons has occurred and is continuing, the Trustee shall, with respect to the Debt Securities of such series or any appurtenant Coupons, as the case may be, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Debt Securities of any series in good faith in accordance with the direction of the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of such series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(e) Notwithstanding any other provision of this Indenture, under no circumstances shall the Trustee be deemed to have fiduciary obligations with respect to any Person including, without limitation, Ordinary Creditors, other than Holders of Debt Securities, as and to the extent provided in this Indenture.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02. Notice of Defaults. As soon as practicable after the receipt of a Deferral Notice and within 90 days after the occurrence of any Event of Default or Default hereunder with respect to Debt Securities of any series the Trustee shall give to Holders of Debt Securities of such series in the manner set forth in Section 1.06 notice of each such Deferral Notice, Event of Default or Default hereunder known to the Trustee, unless in the case of notice regarding an Event of Default or Default such Event of Default or Default shall have been cured or waived; provided, that the Trustee shall be protected in withholding notice of a Default or an Event of Default if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee reasonably determines that the withholding of such notice is in the interest of the Holders of Debt Securities of such series.
Section 6.03. Certain Rights of Trustee. Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon, whether in original or facsimile form, any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, Coupon or other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Debt Securities of such series or any related Coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, Coupon, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Debt Securities and this Indenture;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; and
(j) the Trustee may request that the Company deliver an Officer's Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer's Certificate may be signed by any person authorized to sign an Officer's Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
Section 6.04. Not Responsible for Recitals or Issuance of Debt Securities. The recitals contained herein and in the Debt Securities, except the Trustee's certificates of authentication, and in any Coupons shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Debt Securities of any series or of any Coupons. The Trustee shall not be accountable for the use or application by the Company or any Paying Agent of any Debt Securities or the proceeds thereof.
Section 6.05. May Hold Debt Securities or Coupons. The Trustee, any Paying Agent, the Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Debt Securities and Coupons, and, subject to Section 6.08 and Section 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other agent.
Section 6.06. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law, except that the Trustee shall segregate moneys, funds and accounts held by the Trustee in one currency or currency unit from any moneys, funds or accounts in any other currencies or currency units. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 6.07. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as the parties shall agree from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any loss, liability, claim, damage or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust or performance of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section, the Trustee shall have a claim prior to the Debt Securities and any Coupons upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of any principal (and premium, if any) or interest in respect of any Debt Securities or Coupons.
The accrued obligations of the Company under this Section 6.07 to compensate and indemnify the Trustee for expenses, losses, liabilities, disbursements and advances shall survive the termination, satisfaction and discharge of the Indenture, including any termination under any applicable bankruptcy or similar law or the removal or resignation of the Trustee.
Section 6.08. Disqualification; Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 6.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder that shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of a Federal, State, District of Columbia or foreign supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor. No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 6.11.
The Trustee may resign at any time with respect to the Debt Securities of one or more series by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities of such series.
The Trustee may be removed at any time with respect to the Debt Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of such series, delivered to the Trustee and the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 6.08 with respect to the Debt Securities of any series after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or a decree or order for relief by a court having jurisdiction in the premises shall have been entered in respect of the Trustee in an involuntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law; or a decree or order by a court having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Trustee or of its property or affairs, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Trustee or its property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Debt Securities or (ii) subject to Section 5.14, any such Holder may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee for the Debt Securities of such series and the appointment of a successor Trustee.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Debt Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Debt Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Debt Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Debt Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Debt Securities of any series shall be appointed by Act of the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Debt Securities of such series, and, to that extent, supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Debt Securities of any series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner hereinafter provided, the Trustee or any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, subject to Section 5.14, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Debt Securities of any series and each appointment of a successor Trustee with respect to the Debt Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Register and, if Debt Securities of such series are issuable as Bearer Securities, by publishing notice of such event once in an Authorized Newspaper in each Place of Payment located outside the United States. Each notice shall include the name of the successor Trustee with respect to the Debt Securities of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In the case of an appointment hereunder of a successor Trustee with respect to all Debt Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all) series, the Company, the retiring Trustee upon payment of its charges and each successor Trustee with respect to the Debt Securities of the relevant series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer to and vest in each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Debt Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in this Section.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Debt Securities shall have been authenticated but not delivered by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Debt Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Debt Securities. In case any Debt Securities shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Debt Securities, in either its own name or that of such predecessor Trustee, with the full force and effect that this Indenture provides for the certificate of authentication of the Trustee.
Section 6.13. Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Debt Securities of a series), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent. Upon a Company Request, the Trustee may appoint an authenticating agent with respect to the Debt Securities of one or more series (the "Authenticating Agent"), for such period as the Company shall elect, which will be authorized to act as the Trustee's agent on the Trustee's behalf to authenticate and deliver the Debt Securities of such series. Debt Securities of such series authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Wherever reference is made in this Indenture to the authentication and delivery of Debt Securities of any series by the Trustee or to the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by the Authenticating Agent for such series or the certificate of authentication executed on behalf of such Trustee by such Authenticating Agent, as the case may be. Such Authenticating Agent shall at all times meet the eligibility requirements for the Trustee set forth in Section 6.09.
Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to all series of Debt Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Company, the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign with respect to the Debt Securities of one or more series by giving written notice of resignation to the Trustee and the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of such termination to such Authenticating Agent and the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section with respect to the Debt Securities of one or more series, the Trustee shall upon Company Request appoint a successor Authenticating Agent, and the Company shall provide notice of such appointment to all Holders of Debt Securities of such series in the manner and to the extent provided in Section 1.06. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its services.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee with respect to the Debt Securities of each series for which the Trustee acts as Trustee:
(a) at least semi-annually, not more than 15 days after each Regular Record Date in respect of the Debt Securities of such series (or on 30 June and 31 December of each year with respect to the Debt Securities of any series for which there are no Regular Record Dates or for which there are different Regular Record Dates for Debt Securities of such series issued on different dates), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Registered Securities as of such Regular Record Date or June 15 or December 16, as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Registrar, no such list need be furnished.
Section 7.02. Preservation of Information; Communications to
Holders. The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders received by the Trustee in
its capacity as Registrar, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished. The Trustee shall preserve for at least two years from the date of
receipt of the names and addresses of Holders of any Debt Securities filed with
the Trustee, to the extent so filed.
(b) If three or more Holders (hereinafter referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Debt Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Debt Securities of a particular series (in which case the applicants must hold Debt Securities of such series) or with all Holders of Debt Securities with respect to their rights under this Indenture or under the Debt Securities and such application is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders of Debt Securities of such series or of all Debt Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Debt Securities or Coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 7.02(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 7.02(b).
Section 7.03. Reports by Trustee. (a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto; provided, however that any reports required by Section 313(a) of the Trust Indenture Act shall be transmitted by mail to Holders within 60 days after 15 May of each year commencing with the year following the first issuance of Debt Securities.
(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Debt Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any series of Debt Securities is listed on any stock exchange.
Section 7.04. Reports by Company. The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be filed with the Trustee within 15 days after the same is so filed with the Commission. The Trustee shall make all such reports available for inspection by Holders at its Corporate Trust Office.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, etc., Only on Certain Terms. The Company may, without the consent of Holders of any Debt Securities of any series outstanding under this Indenture, consolidate or amalgamate with or merge into any other corporation or convey or sell or transfer or lease its properties and assets substantially as an entirety to any Person, provided that:
(1) the corporation formed by such consolidation or amalgamation or into which the Company is merged or the Person which acquires by conveyance or transfer the properties and assets of the Company, substantially as an entirety (i) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee the due and punctual payment of any principal, premium or interest (including all additional amounts, if any, payable pursuant to Section 10.04) in respect of all the Debt Securities and any related Coupons and the performance of every covenant of this Indenture on the part of the Company to be performed or observed and (ii) the definition of "Taxing Jurisdiction" shall be amended, if applicable, to replace the United Kingdom with the jurisdiction in which such successor Person is resident for tax purposes;
(2) immediately after giving effect to such transaction and treating any indebtedness that becomes an obligation of the Company, as a result of such transaction as having been incurred by the Company at the time of such transaction, no Event of Default or Default, and no event that, after notice or lapse of time, or both, would become an Event of Default or a Default, shall have occurred and be continuing; and
(3) the Company and the successor Person, have delivered to the Trustee an Officer's Certificate and, if so requested by the Trustee, an Opinion of Counsel stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.02. Successor Person Substituted. Upon any consolidation or amalgamation with or merger into any other corporation, or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 8.01, the successor corporation formed by such consolidation or amalgamation or into which the Company is merged or the successor Person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation or successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Debt Securities and any Coupons.
Section 8.03. Assumption of Obligations. With respect to the Debt Securities of any series, a holding company of the Company or any subsidiary of the Company (a "successor entity") may assume the obligations of the Company (or any corporation which shall have previously assumed the obligations of the Company) for the due and punctual payment of the principal of (and premium, if any, on), or interest on and any additional amount required to be paid in accordance with the provisions of the Indenture or the Debt Securities in respect of the Debt Securities and the performance of each covenant of the Indenture and the Debt Securities on the part of the Company to be performed or observed provided, that
(1) the successor entity shall expressly assume such obligations by an amendment to the Indenture, executed by the Company and such successor entity, if applicable, and delivered to the Trustee, in form satisfactory to the Trustee, and the Company shall, by amendment to the Indenture, unconditionally guarantee all of the obligations of such successor entity under the Debt Securities of such series and the Indenture as so modified by such amendment (provided, however, that, for the purposes of the Company's obligation to pay to Holders all Additional Amounts, if any, payable pursuant to Section 10.04 in respect of the Debt Securities and any related Coupons, references to such successor entity's country of organization will be added to references to the United Kingdom);
(2) such successor entity shall confirm in such amendment to the Indenture that such successor entity will pay to the Holders all Additional Amounts, if any, payable pursuant to Section 10.04 in respect of all the Debt Securities and any related Coupons (provided, however, that for these purposes such successor entity's country of organization will be substituted for the references to the United Kingdom); and
(3) immediately after giving effect to such assumption of obligations, no Event of Default or Default and no event which, after notice or lapse of time or both, would become an Event of Default or Default, shall have occurred and be continuing.
Upon any such assumption, the successor entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with respect to any such Debt Securities with the same effect as if such successor entity had been named as the Company in this Indenture, and the Company or any legal and valid successor corporation which shall theretofore have become such in the manner prescribed herein, shall be released from all liability as obligor upon any such Debt Securities except as provided in Clause (1) above.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders of Debt Securities or Coupons, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by such successor Person of the covenants of the Company herein and in the Debt Securities contained;
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Debt Securities or Coupons (and, if such covenants are to be for the benefit of less than all series of Debt Securities or Coupons, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company;
(3) to change or eliminate any restrictions on the payment of any principal of (or premium, if any, on) or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities or to permit or facilitate the issuance of Debt Securities in uncertificated or book-entry form; provided that no such action shall adversely affect the interests of the Holders of Debt Securities of any series or any related Coupons in any material respect; or
(4) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall be effective only with respect to any series of Debt Securities created subsequent to the execution of such supplemental indenture; or
(5) to establish the form or terms of Debt Securities of any series and any related Coupons as permitted by Section 2.01 and Section 3.01;
(6) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt Securities of one or more series and to add to, change or eliminate any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or
(7) to secure the Debt Securities;
(8) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provision with respect to matters or questions arising under this Indenture that shall not be inconsistent with any provision of this Indenture; provided that such action shall not adversely affect the interests of the Holders of Debt Securities of any series or any related Coupons in any material respect; or
(9) to add, to change or to eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendment to the Trust Indenture Act.
Section 9.02. Supplemental Indentures With Consent of Holders. With the consent of the Holders of not less than a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights under this Indenture of the Holders of such Debt Securities and any related Coupons; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Debt Security or Coupon affected thereby,
(1) change the Stated Maturity of any principal or any installment of interest or additional amounts payable in respect of any Debt Security, or reduce the principal amount (or, in the case of any Principal Indexed Security, face amount) thereof or any interest or any related deferred payment, or the rate of interest on any of the foregoing, thereon or any premium payable upon redemption thereof, or additional amounts payable thereon, or change the manner in which the amount of any payment of any principal, premium or interest in respect of any Indexed Security is determined, or change any obligation of the Company to pay any additional amount pursuant to Section 10.04 (except as contemplated by Section 8.01(1) and permitted by Section 9.01(1), or reduce the amount of the principal of a Discount Debt Security that would be due and payable upon an acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment, or change the coin or currency in which any principal (and premium, if any,) or any interest or any Coupon or any related deferred payment is payable, or the rate of interest on any of the foregoing, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or exchange, on or after the Redemption Date or the Event Date, as the case may be);
(2) reduce the percentage of the aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities affected thereby, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture;
(3) modify any of the provisions of this Section 9.02, Section 5.13 or Section 10.06, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Debt Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder of a Debt Security with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 10.06;
(4) change any obligation of the Company to maintain an office or agency in the places and for the purposes specified in Section 10.02; or
(5) change in any manner adverse to the interests of the Holders of Debt Securities of any series, the subordination provisions of the Debt Securities of such series or the terms and conditions of the obligations of the Company in respect of the due and punctual payment of the principal, premium, if any, interest, any deferred payment or the rate of interest on any of the foregoing on the Debt Securities of such series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one or more particular series of Debt Securities, or that modifies the rights of the Holders of Debt Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of any other series.
Section 9.03. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel from the Company stating that the execution and delivery of such supplemental indenture has been duly authorized by all necessary corporate action, such supplemental indenture has been duly executed and delivered and, assuming that the Trustee has satisfied those legal requirements that are applicable to it to the extent necessary to make such supplemental indenture enforceable against it, is a legal, valid, binding and enforceable agreement of the Company subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered hereunder and of any Coupons appertaining thereto shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act and Financial Services Authority Requirements. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act. The Company's rights and obligations under this Article Nine shall be subject to the consent of the Financial Services Authority, if required.
Section 9.06. Reference in Debt Securities to Supplemental Indentures. Debt Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in a form satisfactory to the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Debt Securities of any series and any appurtenant Coupons so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee or the Authenticating Agent in exchange for Outstanding Debt Securities of such series and any appurtenant Coupons.
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Any Principal, Premium or Interest. The Company covenants and agrees for the benefit of each series of Debt Securities and any appurtenant Coupons that it will duly and punctually pay any principal of (and premium, if any, on) or interest on such Debt Securities and any appurtenant Coupons in accordance with the terms of such Debt Securities, any appurtenant Coupons and this Indenture. Any interest due in respect of Bearer Securities on or before Maturity, other than in respect of Bearer Securities of a series in global form and other than additional amounts, if any, payable as provided in Section 10.04 in respect of any principal of (and premium, if any, on) and interest on such a Security, shall be payable only upon presentation and surrender of the several Coupons for such interest installments as are evidenced thereby as they severally mature.
No payment of any principal, premium or interest in respect of Bearer Securities (other than a Permanent Global Security) shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that payment of any principal of (and premium, if any, on) or interest (including additional amounts payable in respect thereof) on any such Bearer Security may be made in Dollars at the specified office of the Paying Agent, if (but only if) payment of the full amount of such principal, premium, interest or additional amounts at all offices outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.
Section 10.02. Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, The City of New York and in each Place of Payment for any series of Debt Securities an office or agency where Debt Securities of such series (but, except as otherwise provided below, unless such Place of Payment is located outside the United States, not Bearer Securities other than Permanent Global Debt Securities) may be presented or surrendered for payment (and in any event, at least one such office or agency outside the United Kingdom), where Debt Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Debt Securities of such series and this Indenture may be served. If Debt Securities of a series are issuable as Bearer Securities, the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series that is located outside the United States where Debt Securities of such series and the related Coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Debt Securities of such series pursuant to Section 10.04); provided, however, that if the Debt Securities of such series are listed on the London Stock Exchange plc or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent in London or Luxembourg or any other required city located outside the United States, as the case may be, so long as the Debt Securities of such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee except that Bearer Securities of that series and the related Coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Bearer Securities of that series pursuant to Section 10.04) at the place specified for the purpose pursuant to Section 3.01, and the Company hereby appoints HSBC Bank USA as Paying Agent and its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of such Place of Payment) where the
Debt Securities of one or more series and any appurtenant Coupons (subject to
Section 10.01) may be presented or surrendered for any or all of such purposes,
and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for any
series of Debt Securities for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency. The Company will at all times
maintain at least one Paying Agent that is located outside the United Kingdom
for each series of Debt Securities.
The Company undertakes that if the conclusions of the ECOFIN Council meeting of 26-27 November 2000 are implemented, to ensure that it maintains a paying agent in a Member State of the European Union that will not be obliged to withhold or deduct tax pursuant to the European Union Directive on the taxation of savings proposed at the ECOFIN Council meeting of 26-27 November 2000 if there is at least one Member State which does not require a paying agent to withhold or deduct tax pursuant to such Directive.
Section 10.03. Money for Debt Securities Payments to be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Debt Securities, it will, on or before each due date of any principal of (and premium, if any, on) or interest on any Debt Securities of such series and any appurtenant Coupons, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay any principal, premium or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to any series of Debt Securities, the Company will, on or prior to each due date of any principal of (and premium, if any, on) or interest on any Debt Securities of such series and any appurtenant Coupons, deposit with a Paying Agent a sum sufficient to pay any principal, premium or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to any such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any series of Debt Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of any principal (and premium, if any) or interest in respect of Debt Securities of such series and any appurtenant Coupons in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Debt Securities of such series or any appurtenant Coupons) in the making of any payment of any principal of (and premium, if any, on) or interest on the Debt Securities of such series or any appurtenant Coupons; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of any principal of (and premium, if any, on) or interest on any Debt Security of any series or any appurtenant Coupons and remaining unclaimed for two years after any such principal, premium or interest has become due and payable shall be paid to the Company, as the case may be, on Company Request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Debt Security or any appurtenant Coupons shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper of general circulation in the Borough of Manhattan, The City of New York, and each Place of Payment, or mailed to each such Holder, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company. Debt Securities of any series or any appurtenant Coupons will be void if not presented for payment of principal and premium, if any, within 10 years of such principal and premium, if any, becoming due and payable or presented for payment of interest within five years of such interest becoming due and payable.
Section 10.04. Payment of Additional Amounts. Unless otherwise specified as contemplated by Section 3.01, with respect to Debt Securities, all amounts of principal of (and premium, if any, on) and interest and related deferred payments on any such Debt Securities will be paid by the Company, without deduction or withholding for, or on account of, any and all present and future income, stamp and other taxes, levies, imposts, duties, charges, fees, deductions or withholdings now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of the United Kingdom or any political subdivision or any taxing authority thereof or therein having the power to tax (the "Taxing Jurisdiction"), unless such deduction or withholding is required by law. If deduction or withholding of any such taxes, levies, imposts, duties, charges, fees, deductions or withholdings shall at any time be required by the Taxing Jurisdiction, the Company will pay such additional amounts of, or in respect of, the principal amount of, (and premium, if any, on) and interest on such Debt Securities ("Additional Amounts") as may be necessary in order that the net amounts paid to the Holders of such Debt Securities, after such deduction or withholding, shall equal the respective amounts of principal, premium and interest, which would have been payable in respect of such Debt Securities had no such deduction or withholding been required, provided that the foregoing will not apply to any such tax, levy, impost, duty, charge, fee, deduction or withholding which would not have been payable or due but for the fact that (i) the Holder of the Debt Security or the owner of a beneficial interest therein is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or physically present in, the Taxing Jurisdiction or otherwise has some connection or former connection with the Taxing Jurisdiction other than the holding or ownership of a Debt Security, or the collection of any payment of (or in respect of) principal of (premium, if any, on) and interest and related deferred payments on or the enforcement of, any Debt Security, (ii) the relevant Debt Security or Coupon or other means of payment of interest or related deferred payments in respect of Debt Securities is presented for payment in the United Kingdom or (iii) the relevant Debt Security or other means of payment of interest or related deferred payments in respect of Debt Securities is presented for payment more than 30 days after the date payment became due or was provided for, whichever is later, except to the extent that the Holder would have been entitled to such Additional Amount on presenting the same for payment at the close of such 30 day period (iv) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed on any interest or related deferred payment to an individual and is required to be made pursuant to any European Union directive on the taxation of savings income relating to the proposal for a directive on the taxation of savings income published by the ECOFIN Council on 13 December 2001 or otherewise implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000, or any law implementing or complying with, or introduced in order to conform to, such a directive; (v) presentation for payment of the relevant Debt Securities was made to a paying agent who was required to make (or pass through) such deduction or withholding and presentation for payment could have been made to a paying agent who was not required to make (or pass through) such deduction or withholding; (vi) there was a failure to comply by the Holder or the beneficial owner of the Debt Securities or the beneficial owner of any payment on such Debt Securities with a request of the Company addressed to the Holder or the beneficial owner, including a request of the Company related to a claim for relief under any applicable double tax treaty (x) to provide information concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or the beneficial owner or (y) to make any declaration or other similar claim to satisfy any information or reporting requirement, if the information or declaration is required or imposed by a statute, treaty, regulation, ruling or administrative practice of the Taxing Jurisdiction as a precondition to exemption from withholding or deduction of all or part of the tax, duty, assessment or other governmental charge; (vii) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed in respect of any estate, inheritance, gift, sale, transfer, personal property, wealth or similar tax, duty, assessment or other governmental charge; or (vii) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed in respect of any combination of the above items.
Whenever in this Indenture there is mentioned, in any context, the payment of any principal of (and premium, if any, on) or interest on any Debt Security of any series or the payment of any related Coupon or the net proceeds received on the sale or exchange of any Debt Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section, and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made.
Section 10.05. Officer's Certificate as to Compliance with Indenture and Default. The Company will deliver to the Trustee, on or before a date not more than six months after the end of each fiscal year of the Company (which on the date hereof is 31 December) ending after the date hereof, a certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company's compliance with all conditions and covenants under the Indenture, whether an Event of Default or Default has occurred, and, if an Event of Default or Default has occurred, specifying all such defaults and the nature thereof of which they may have knowledge. For purposes of this paragraph such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
The Company will deliver written notice to the Trustee promptly after any officer of the Company has knowledge of the occurrence of any event that with the giving of notice or the lapse of time or both would become an Event of Default or Default.
Section 10.06. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any covenant or condition set forth in Section 10.02 and Section 10.04 with respect to the Debt Securities of any series if, before the time for such compliance, the Holders of at least a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Debt Securities of such series at the time Outstanding shall, by Act of such Holders and on behalf of all Holders of Debt Securities of that Series, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
Section 11.01. Applicability of Article. Debt Securities of any series that are redeemable before their Stated Maturity, if any, shall be redeemable in accordance with their terms and, except as otherwise specified as contemplated by Section 3.01 with respect to the Debt Securities of such series, in accordance with this Article. The Company's rights and obligations under this Article Eleven shall be subject to the consent of the Financial Services Authority, if required.
Section 11.02. Election to Redeem; Notice to Trustee. Unless otherwise provided under Section 3.01 with respect to any series of Debt Securities, the election of the Company to redeem any Debt Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Debt Securities of any series, the Company shall, not less than 45, or more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the aggregate principal amount (or, in the case of Principal Indexed Securities, face amount) of the Debt Securities of such series to be redeemed. If the Debt Securities of such series may be originally issued from time to time with varying terms, the Company shall also notify the Trustee of the particular terms or designation of the Debt Securities of such series to be redeemed. In the case of any redemption of Debt Securities prior to the expiration of any restriction on such redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer's Certificate evidencing compliance with such restriction.
Section 11.03. Selection by Trustee of Debt Securities to be Redeemed. Except as otherwise specified as contemplated by Section 3.01 for Debt Securities of any series, if less than all the Debt Securities of any series are to be redeemed, the particular Debt Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from among the Outstanding Debt Securities of such series (or, in the case of Debt Securities of a series that may be originally issued from time to time with varying terms, from among the Outstanding Debt Securities of such series having the same original issue date and terms) not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for such Debt Securities or any integral multiple thereof that is also an authorized denomination) of the principal amount (or, in the case of Principal Indexed Securities, face amount) of Registered or Bearer Securities (if issued in more than one authorized denomination) of such series of a denomination larger than the minimum authorized denomination for such Debt Securities.
The Trustee shall promptly notify the Company in writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial redemption, the principal amount (or, in the case of Principal Indexed Securities, face amount) thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Debt Securities shall relate, in the case of any Debt Security redeemed or to be redeemed only in part, to the portion of the principal amount (or, in the case of Principal Indexed Securities, face amount) of such Debt Security that has been or is to be redeemed.
Section 11.04. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 1.06 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, or the manner in which the Redemption Price is to be determined;
(3) if less than all Outstanding Debt Securities of any series are to be redeemed, the identification and the principal amount (or, in the case of Principal Indexed Securities, face amount)) of the particular Debt Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and payable in respect of each such Debt Security to be redeemed, and that any interest thereon shall cease to accrue on and after said date;
(5) the Place or Places of Payment where such Debt Securities, together in the case of Bearer Securities with all Coupons, if any, appertaining thereto maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price; and
(6) the CUSIP number or numbers, the Common Code, or the ISIN, if any, with respect to such Debt Securities.
A notice of redemption published as contemplated by Section 11.04 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company.
Section 11.05. Deposit of Redemption Price. On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) any accrued interest on, all the Debt Securities or portions thereof that are to be redeemed on that date.
Section 11.06. Debt Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Debt Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Debt Securities shall cease to bear interest, if any and the Coupons for any such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Debt Security for redemption in accordance with said notice, such Debt Security shall be paid by the Company at the Redemption Price, together with any accrued interest to the Redemption Date; provided, however, that installments of any interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon presentation and surrender of Coupons for such interest (at an office or agency located outside the United States, except as otherwise provided in Section 10.02); and provided further that installments of any interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more Predecessor Debt Securities, registered as such on the relevant Regular or Special Record Dates according to their terms and the provisions of Section 3.05. The obligation of the Company to redeem Debt Securities of a series on a Redemption Date shall be subject to any Solvency Condition.
If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant Coupons maturing after the Redemption Date, such Bearer Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company, the Trustee and the Paying Agent if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any Paying Agent any such missing Coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an office or agency located outside of the United States, except as otherwise provided in Section 10.02.
If any Debt Security called for redemption shall not be so paid upon surrender thereof for redemption, any principal (and premium, if any) in respect thereof shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in such Debt Security.
Section 11.07. Debt Securities Redeemed in Part. Any Registered Security that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee, duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee or Authenticating Agent shall authenticate and deliver to the Holder of the Registered Security, without service charge, a new Registered Security or Registered Securities of the same series, of like tenor and in an aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) equal to and in exchange for the unredeemed portion of the principal of the Registered Security so surrendered in such authorized denomination or denominations as are requested by such Holder; and any Bearer Security that is to be redeemed only in part shall be surrendered at an office or agency of the Company located outside the United States, except as otherwise provided in Section 10.02, and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Bearer Security outside the United States, without service charge, a new Bearer Security or Bearer Securities of the same series (or a new Registered Security or Registered Securities of the same series if the Debt Securities of such series are also issuable as Registered Securities), of like tenor and in an aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) equal to and in exchange for the unredeemed portion of the principal of the Bearer Security so surrendered in such authorized denomination or denominations as are requested by such Holder; except if a Global Security is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, a new Global Security of like tenor in a denomination equal to and in exchange for the unredeemed portion of the principal amount (or, in the case of any Principal Indexed Security, face amount) of the Global Security so surrendered.
Section 11.08. Optional Redemption in the Event of Change in Tax Treatment. In addition to any redemption provisions that may be specified pursuant to Section 3.01 for the Debt Securities of any series, the Debt Securities (i) are redeemable, as a whole but not in part, at the option of the Company, on not less than 30 nor more than 60 days' notice, at any time at a redemption price equal to 100% of the principal amount, together with accrued but unpaid interest, if any, in respect of such Debt Securities to the date fixed for redemption, (or, in the case of Discount Debt Securities, the accreted face amount, or, in the case of Principal Indexed Securities, the amount specified pursuant to Section 3.01), and any Debt Securities convertible into Dollar Preference Shares or Conversion Securities of the Company may, at the option of the Company, be converted as a whole, if, at any time, the Company shall determine that (a) in making payment under such Debt Securities in respect of principal (or premium, if any) or interest or related deferred payment it has or will or would become obligated to pay Additional Amounts, provided such obligation to pay Additional Amounts results from a change in or amendment to the laws of the Taxing Jurisdiction, or any change in the official application or interpretation of such laws (including a decision of any court or tribunal), or any change in, or in the official application or interpretation of, or execution of, or amendment to, any treaty or treaties affecting taxation to which the United Kingdom is a party, which change, amendment or execution becomes effective on or after the date of original issuance of the Debt Securities of such series or (b) the payment of interest in respect of such Debt Securities has become or will or would be treated as a "distribution" within the meaning of Section 209 of the Income and Corporation Taxes Act 1988 of the United Kingdom (or any statutory modification or re-enactment thereof for the time being), as a result of any change in or amendment to the laws of the Taxing Jurisdiction, or any change in the official application or interpretation of such laws including a decision of any court, which change or amendment becomes effective on or after the date of original issuance of the Debt Securities of such series; provided, however, that in the case of (a) above, no notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obliged to pay Additional Amounts were a payment in respect of such Debt Securities then due.
ARTICLE TWELVE
SUBORDINATION OF DEBT SECURITIES
Section 12.01. Debt Securities Subordinate to Certain Creditors. (a) The Company covenants and agrees, and each Holder of Debt Securities of each series, by his acceptance thereof, likewise covenants and agrees, that (i) the Debt Securities of such series shall constitute unsecured obligations of the Company without any preference among themselves, and (ii) in the event of the winding up of the Company, to the extent and in the manner hereinafter set forth in this Article Twelve, the indebtedness represented by any of the Debt Securities of such series and the payment of the principal of (and premium, if any, on) and interest on each and all of the Debt Securities of such series is hereby expressly made subordinate and subject in right of payment to the prior payment in full of all claims of the Ordinary Creditors. Notwithstanding any other provision of this Indenture or the Debt Securities, except with the consent of the Financial Services Authority, (i) no early repayment may be made in respect of the Debt Securities and (ii) neither the Company nor any of its subsidiaries may purchase any of the Debt Securities.
To the fullest extent permitted by law, the Holders of Debt Securities and the Trustee, in respect of any claims of such Holders to payment of any principal, premium or interest in respect of any Debt Securities, by their acceptance of the Debt Securities thereof will be deemed to have waived any right of set-off or counterclaim that such Holders or, as the case may be, the Trustee in such respect, might otherwise have (whether in the liquidation of the Company or at any other time). The Holders of Debt Securities, by their acceptance of the Debt Securities, covenant and agree that if, on the winding up of the Company, they receive any sums by way of set-off, they will hold such sums on trust for the Ordinary Creditors and will, without undue delay, pay such sums to the liquidator to apply in payment of claims of Ordinary Creditors.
(b) Any amounts receivable by the Trustee from the liquidator in such winding up in respect of Debt Securities of a particular series or Coupons appertaining to Debt Securities of such series not subject to a condition of solvency pursuant to Clause (c) below shall be received by the Trustee upon trust to apply the same as follows:
(i) first, in payment or satisfaction of the costs, charges, expenses and liabilities incurred by the Trustee including any unpaid remuneration in or about the execution of the trusts of these presents (in each case, to the extent payable by the Company under Section 6.07);
(ii) secondly, subject to Section 12.05, in payment of claims of the Ordinary Creditors outstanding at the commencement of or arising by virtue of the winding up of the Company (excluding interest accruing after the date of the commencement of the winding up) to the extent that such claims shall be admitted in the winding up and shall not be satisfied out of the other resources of the Company; and
(iii) thirdly, in payment of any claims in respect of the Debt Securities of such series and Coupons appertaining to Debt Securities of such series (to the respective extents that the claims of the Holders thereof in respect thereof or of the Trustee in respect of any principal, premium or interest in respect thereof shall be admitted in such winding up) pari passu and ratably.
(c) Where it is specified pursuant to Section 3.01 that
payment of principal, premium (if any) or interest on Debt Securities of a
particular series is to be subject to a condition of solvency then the
obligation of the Company to make any payment of principal, premium (if any) or
interest in respect of Debt Securities of such series and any Coupons relating
thereto, whether prior or subsequent to the commencement of a winding up of the
Company in England, is conditional upon the Company being able to make such
payment and remain Solvent immediately thereafter (hereinafter referred to as a
"Solvency Condition"). No payment in respect of any Debt Securities of a series
or the Coupons relating thereto subject to a Solvency Condition which under this
Section or any other Section hereof would otherwise fall due for payment while
the Company is unable to satisfy the Solvency Condition will fall so due. Such
payment will become due for payment only if and when and to the extent that the
Company could make such payment and satisfy the Solvency Condition (whether or
not it was in winding up) immediately thereafter. Prior to the commencement of
the winding up of the Company in England interest will continue to accrue on any
Debt Securities of such series payment of which is suspended under this clause
subject to and in accordance with the provisions of these presents.
(ii) The Company shall whenever requested by the Trustee and will in the event the Company is in winding up deliver to the Trustee an Officer's Certificate attaching a report in writing from the Auditors or, if the Company is in winding up, the liquidator of the Company upon which report the Trustee may conclusively rely as to whether or not the Company, on the basis of such information as the Company may at the request of the Auditors make available to the Auditors or, if the Company is in winding up, on the basis of the information available to the liquidator, is or would in any specified circumstances be Solvent for the purposes of paragraph (i) of this clause and in the absence of proven error such report shall be treated and accepted by the Company, the Trustee and the Holders of the relevant Debt Securities and any Coupons relating thereto as correct and sufficient evidence of such fact. In the absence of any such evidence to the contrary, it shall be assumed for the purposes hereof (unless the contrary is proved) that the Company is and will after any payment hereunder be Solvent for such purposes.
The Trustee is under no obligation to request such a certificate or report and the Trustee will not incur any liability as a result of not so requesting such a certificate or report. No Holder of Debt Securities or of Coupons relating thereto shall be entitled to proceed against the Trustee or the Auditors in connection with the exercise or non-exercise by them of their powers, duties and discretions under this paragraph.
(d) (i) In the event of a winding up of the Company claims in respect of Debt Securities of a series and the Coupons relating thereto which are subject to a Solvency Condition shall be postponed to the claims of the Ordinary Creditors and any amounts receivable by the Trustee from the liquidator in such winding up in respect of the Debt Securities of such series and appurtenant Coupons shall be received by the Trustee upon trust to apply the same as follows:
(A) first, in payment or satisfaction of the costs, charges, expenses and liabilities incurred by the Trustee including any unpaid remuneration in or about the execution of the trusts of these presents (in each case, to the extent payable by the Company under Section 6.07);
(B) secondly, the Trustee shall hold all remaining
amounts in trust for 30 days and (i) if on or prior to such
thirtieth day the Trustee is provided with an Officer's
Certificate attaching a report pursuant to Clause (c)(ii)
above which states that the Company could not make or could
not have made payment of such amounts and still be Solvent
(disregarding, for the purposes of this paragraph (d) only,
paragraph (A) of the definition of Solvent in Clause (d)(ii)
immediately hereafter) in return to the Company of the whole
or such part of such amounts (after any necessary deductions
pursuant to paragraph (A) of this Clause) as caused the
Company not to be then so Solvent as set forth in such
Officer's Certificate (disregarding as aforesaid), or (ii)
if on or prior to such date no report pursuant to Clause
(c)(ii) above is so provided the Trustee shall return the
whole of such amounts to the Company (and any money so
returned shall then be treated for the purposes of the
Company's obligations hereunder as if it had not been paid
by the Company and its original payment shall be deemed not
to have discharged any of the obligations of the Company
hereunder);
(C) thirdly, in payment of any claims in respect of the Debt Securities of such series and appurtenant Coupons (to the respective extents that the claims of the Trustee or the Holder thereof in respect thereof shall be admitted in such winding up) pari passu and ratably; and
(D) fourthly, in payment of the balance (if any) to the Company.
(ii) For the purposes of this Section:
"Solvent" means, in relation to the Company, that the Company:
(A) is able to pay its debts as they fall due; and
(B) its Assets exceed its Liabilities (other than its Liabilities to persons in respect of Subordinated Indebtedness);
(e) In the event of the winding up of the Company, every obligation of the Company to pay any amount (whether in respect of principal, premium or interest) in respect of any Debt Securities of any series shall be an obligation to pay the relevant amount to the Trustee upon trust for application, along with all other amounts receivable by the Trustee from the liquidator in respect of the remaining Debt Securities of such series, in accordance with Clause (b) or (d)(i) above, and the Company shall not be obliged to pay any such amount directly to a Holder; accordingly, in the event that a suit is brought, or a claim is lodged, by a Holder in respect of its Debt Securities of any series in such winding up any amounts receivable from the liquidator in respect of such suit or claim will be paid to the Trustee upon trust for such application.
(f) The payments mentioned in Subsections (b)(ii) and
(d)(ii)(B) of this Section may be performed by the Trustee paying over to the
liquidator for the time being in the winding up of the Company the amounts
received by the Trustee as aforesaid (less any amounts thereof applied in the
implementation of the trust mentioned in Subsections (b)(ii), (d)(ii)(B) or
(d)(ii)(B) of this Section on terms that such liquidator shall distribute the
same accordingly. The receipt of the liquidator for the said amounts shall be a
good discharge to the Trustee.
(g) The Trustee shall be entitled and it is hereby authorized to call for and to accept as conclusive evidence thereof a certificate from the liquidator for the time being of the Company on behalf of the Company as to:
(A) the amount of the claims of the Ordinary Creditors which shall not have been satisfied out of the other resources of the Company; and
(B) the Persons entitled thereto and their respective entitlements.
Such certificate shall be provided to the Trustee at least 3 Business Days before the date on which the Trustee shall be required to make any payments under this Section.
(h) The provisions of this Section shall apply only to payment of principal, premium and interest in respect of any such Debt Securities of any series and nothing herein shall affect or prejudice the payment of the costs, charges, expenses, liabilities or remuneration of the Trustee or the rights and remedies of the Trustee in respect thereof.
(i) The provisions of this Section shall not be applicable to any amounts of principal, premium and interest in respect of the Debt Securities of any series for the payment of which funds have been deposited in trust with the Trustee or have been set aside by the Company in trust in accordance with the provisions of this Indenture; provided, however, that at the time of such deposit or setting aside, and immediately thereafter, the foregoing provisions of this Section are complied with.
(j) Notwithstanding anything contained in these presents to the contrary, the foregoing provisions of this Section shall be construed and have effect so that in the event of the liquidation of the Company the obligations of the Company under the Debt Securities of a particular series and under the Subordinated Indebtedness (other than Subordinated Indebtedness in relation to which the obligations of the Company under that particular series of Debt Securities rank junior or senior) will rank pari passu and ratably inter se so far as concerns subordination to claims of depositors and other creditors of the Company (except any creditors whose claims may rank junior to claims under the Debt Securities of that particular series).
(k) The perpetuity period applicable to the trusts contained in this Section shall be eighty years from the date hereof.
Section 12.02. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Debt Securities on the one hand and the Ordinary Creditors on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Debt Securities is intended to or shall (i) impair, as among the Company, its creditors other than Ordinary Creditors and the Holders of the Debt Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Debt Securities the principal of (and premium, if any, on) and interest on the Debt Securities as and when the same shall become due and payable in accordance with their terms; (ii) affect the relative rights against the Company of the Holders of the Debt Securities and creditors of the Company other than the Ordinary Creditors; or (iii) prevent the Trustee or the Holder of any Debt Securities from exercising all remedies otherwise provided by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the Ordinary Creditors to receive sums otherwise payable or deliverable to the Trustee or such Holders.
Section 12.03. Trustee to Effectuate Subordination. Each Holder of a Debt Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination of the Debt Securities provided in this Article and appoints the Trustee his attorney for any and all such purposes.
Section 12.04. No Waiver of Subordination Provisions. No right of any present or future Ordinary Creditors, if any, to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such Ordinary Creditor or by any non-compliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such Ordinary Creditor may have or be otherwise charged with.
Section 12.05. Notice to Trustee. The Company shall give prompt written notice to the Trustee of any fact known to it, which would prohibit the making of any payment to or by the Trustee in respect of the Debt Securities. Notwithstanding the provisions of this Article or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Debt Securities, unless and until the Trustee shall have received written notice thereof from the Company or an Ordinary Creditor, as the case may be, or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, shall be entitled in all respects to assume that no such facts exist; provided, however, that if a Responsible Officer of the Trustee shall not have received the notice provided for in this Section at least three Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of or any premium or interest on any Debt Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it less than three Business Days prior to such date.
The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be an Ordinary Creditor (or a trustee or agent on behalf of such Ordinary Creditor) to establish that such notice has been given by an Ordinary Creditor (or a trustee or agent on behalf of such Ordinary Creditor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as an Ordinary Creditor to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of claims held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment which it may be required to make for the benefit of such Person pursuant to the terms of the Indenture pending judicial determination as to the right of such Person to receive such payment.
Section 12.06. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Section 6.01, and the Holders of the Debt Securities shall be entitled to rely on (i) any order or decree entered by any court in England and Wales in which any winding up, insolvency, bankruptcy, receivership, liquidation or dissolution of the Company or similar case or proceeding, including a proceeding for the suspension of payments under English law, is pending, or (ii) a certificate of the applicable liquidator, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee and such Holders, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the Ordinary Creditors and other claims against the Company the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.
Section 12.07. Trustee Not Fiduciary for Holders of Claims. The Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this article and no implied covenants or obligations shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the Ordinary Creditors and shall not be liable to any such Ordinary Creditors if it shall in good faith mistakenly pay over or distribute to Holders of Debt Securities or to the Company or to any other Person cash, property or securities to which any such Ordinary Creditors shall be entitled by virtue of this Article or otherwise.
Section 12.08. Rights of Trustee as Holder of Claims; Preservation of Trustee's Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any claims of Ordinary Creditors which may at any time be held by it, to the same extent as any other Ordinary Creditors and nothing in this Indenture shall deprive the Trustee of any of its rights as such Ordinary Creditor.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07.
Section 12.09. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that Section 12.08 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 12.10. Governing Law. The provisions of this Article 12 shall be governed by and construed in accordance with the laws of England and Wales.
Section 12.11. Third Party Rights. No person who is not a party to this Indenture shall have any rights under the Contracts (Rights of Third Parties) Act of 1999 (the "Contracts Act") to enforce any term of Article 12 of this Indenture; provided that this does not affect any right or remedy of a third party which exists or is available apart from the Contracts Act, including under the laws of the State of New York or the federal laws of the United States.
ARTICLE THIRTEEN
EXCHANGE OR CONVERSION OF DEBT SECURITIES
Section 13.01. Applicability of Article. If specified pursuant to Section 3.01 for the Debt Securities of any series, the Debt Securities of such series shall be exchangeable or convertible in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for Debt Securities of such series) in accordance with this Article.
Section 13.02. Election to Exchange or Convert; Notice to Trustee. An election of the Company to exchange or convert Debt Securities, as the case may be, shall be evidenced by an Officer's Certificate furnished to the Trustee stating that the Company is entitled to effect such Exchange or Conversion and setting forth a statement of facts demonstrating the same.
Section 13.03. Notice of Exchange or Conversion. Not less than 45 days nor more than 90 days prior to the Event Date, the Company shall notify the Trustee in writing of its election to exchange or convert, as the case may be, the Debt Securities and of the series of Debt Securities to which such election relates. The Trustee shall within five Business Days after receipt of such notice from the Company, cause notice of such election to be mailed to each Holder of Debt Securities to be exchanged or converted, as the case may be.
All notices of Exchange or Conversion shall state:
(1) the Event Date;
(2) if less than all of the series of the Debt Securities are to be exchanged or converted, as the case may be, the identification of the particular Debt Securities to be exchanged or converted, as the case may be, including relevant CUSIP numbers and other securities identification numbers, which Debt Securities shall be selected by the Trustee from the Outstanding Debt Securities of such series not previously called for conversion, by such method as the Trustee shall deem fair and appropriate;
(3) that on the Event Date, the Debt Security to be exchanged or converted, as the case may be, will cease to exist except to evidence the Exchange Securities or Conversion Securities, as the case may be, as described in Section 13.07 below on and after such Event Date; and
(4) the place or places where such Debt Securities are to be surrendered for exchange or conversion, as the case may be.
Notice of any Exchange or Conversion of Debt Securities at the election of the Company shall be given by the Company or, at the Company's Request, by the Trustee in the name of and at the expense of the Company.
Section 13.04. Deposit of Interest. On or prior to any Event Date, the Company shall deposit with the Trustee or with a Paying Agent an amount of money sufficient to pay accrued interest, if any, on the Debt Securities to be exchanged or converted on the Event Date.
Section 13.05. Surrender of Debt Securities. Any Debt Security which is to be exchanged or converted shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 10.02 not less than 10 days prior to the Event Date (with due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney-in-fact duly authorized in writing) accompanied by written notice specifying the name or names, if any with address or addresses, in which the Exchange Securities or Conversion Securities, as the case may be, are to be issued. Each of the Holders hereby constitutes and appoints the Trustee his or her attorney-in-fact, with power of substitution, in his or her name, to sign any and all instruments or certificates required for the Exchange or the Conversion, as the case may be. Debt Securities surrendered for Exchange or Conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee for delivery by it to the Company or, if delivered to the Trustee, shall be delivered by it to the Company.
Section 13.06. Issuance of Exchange Securities or Conversion
Securities. On or prior to the Event Date with respect to Debt Securities
surrendered for Exchange or Conversion, as the case may be, as provided in
Section 13.05, the Company shall deliver the Exchange Securities or Conversion
Securities to the Trustee or to such other Person as may be specified pursuant
to Section 3.01. Such Exchange or Conversion shall be deemed to have been made
immediately prior to the close of business in New York City on the Event Date.
Section 13.07. Effect of Exchange or Conversion. Notice of Exchange or Conversion having been given as aforesaid, the Debt Securities so to be exchanged or converted, as the case may be, shall, on the Event Date cease to exist for any purpose, other than to evidence the Exchange Securities or the Conversion Securities as described below. Upon surrender of any such Debt Security for Exchange or Conversion, as the case may be, in accordance with said notice and this Article Thirteen, accrued interest on such Debt Security to the Event Date shall be paid by the Company to the Holder surrendering such Debt Security.
If accrued interest on any Debt Security called for Exchange or Conversion shall not be paid upon surrender thereof for such exchange or conversion, such accrued interest shall, until paid, constitute Defaulted Interest, payable in accordance with Section 3.06.
On and after the Event Date, each Debt Security to be exchanged or converted, as the case may be, until surrendered for such Exchange or Conversion shall be deemed to evidence the right to receive the Exchange Securities or the Conversion Securities deliverable upon such surrender. On and after the Event Date, until a Holder of a Debt Security has surrendered such Debt Security for Exchange or Conversion, as the case may be, such Holder shall be entitled to receive any dividends, payments or other distributions in respect of such Exchange Securities or Conversion Securities and shall have the same rights with respect to, and shall be deemed to be the Holder of, such Exchange Securities or Conversion Securities as if it had so surrendered such Debt Security for Exchange or Conversion on the Event Date; provided, however, that no dividends, payments or other distributions in respect of such Exchange Securities or Conversion Securities shall be paid or distributed to such Holder any earlier than the date on which such Debt Security is surrendered for Exchange or Conversion.
Section 13.08. Legal and Regulatory Compliance. Notwithstanding any provision of this Indenture to the contrary, the right of the Company to cause any Exchange or Conversion of the Debt Securities of any series for Exchange Securities or Conversion Securities on any proposed Event Date shall be subject to the fulfillment of any conditions to such Exchange or Conversion as may be specified pursuant to Section 3.01 for the Debt Securities of such series, and the Company represents and warrants for the benefit of the holders of Exchange Securities or Conversion Securities, as the case may be, that all such conditions shall have been satisfied prior to any such Exchange or Conversion on the Event Date.
Section 13.09. Taxes and Charges. Unless otherwise specified pursuant to Section 3.01, the issuance and delivery of Exchange Securities upon Exchange, or Conversion Securities upon Conversion, of the Debt Securities of any series pursuant to this Article Thirteen shall be made without charge to the exchanging or converting Holder of Debt Securities for such Exchange Securities or Conversion Securities, as the case may be, or for any tax or other governmental charge (other than income or capital gains taxes) in respect of the issuance or delivery of such Exchange Securities or Conversion Securities; provided, however, that the Company shall not be required to pay any tax or other governmental charge which may be payable in respect of a transfer involved in the issuance and delivery of any such Exchange Security or Conversion Security, as the case may be, to any Person other than any Holder of the Debt Security to be exchanged or converted (unless such other person is the securities depositary selected by the Company for the Debt Securities of such series), and the Company shall not be required to issue or deliver such Exchange Securities or Conversion Securities unless and until the Person requesting the issuance or delivery thereof shall have paid to the Company the amount of such tax or other governmental charge or shall have established to the satisfaction of the Company that such tax or other governmental charge has been paid.
Section 13.10. Trustee Not Liable. The Trustee shall not be accountable with respect to the validity or value (or the kind or amount) of any Exchange Securities or Conversion Securities which may be issued or delivered upon the Exchange or Conversion of any Debt Security pursuant to this Article Thirteen, and makes no representation with respect thereto. The Trustee shall not be responsible for any failure of the Company to issue, transfer or deliver any Exchange Securities or Conversion Securities upon the surrender of any Debt Security for the purpose of an Exchange or Conversion pursuant to this Article Thirteen or to comply with any of the covenants of the Company contained in this Article Thirteen.
ARTICLE FOURTEEN
DEFEASANCE
Section 14.01. Applicability of Article. If, pursuant to
Section 3.01, provision is made for the defeasance of Debt Securities of a
series and if the Debt Securities of such series are denominated and payable
only in Dollars (except as provided pursuant to Section 3.01), then the
provisions of this Article shall be applicable except as otherwise specified
pursuant to Section 3.01 for Debt Securities of such series. Defeasance
provisions, if any, for Debt Securities denominated in a Foreign Currency may be
specified pursuant to Section 3.01. The Company's rights and obligations under
Article Fourteen shall be subject to the consent of the Financial Services
Authority, if required.
Section 14.02. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations. At the option of the Company, the Company shall (a) be
discharged from any obligations with respect to Debt Securities of any series or
(b) shall cease to be under any obligation to comply with any term, provision or
condition set forth in Section 10.05 ("covenant defeasance") (and, if so
specified pursuant to Section 3.01, any other restrictive covenant added for the
benefit of such series pursuant to Section 3.01) at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited irrevocably in trust with the Trustee funds in trust dedicated solely to the benefit of the Holders of the Debt Securities of such series (i) cash in Dollars in an amount, or (ii) U.S. Government Obligations (as defined below) that through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than the due date of any payment, cash in Dollars in an amount or (iii) a combination of (i) and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of (and premium, if any, on) and interest on, the Outstanding Debt Securities of such series on the dates such installments of interest or principal and premium are due;
(2) if the Debt Securities of such series are then listed on the New York Stock Exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such covenant defeasance would not cause such Debt Securities to be delisted;
(3) no Event of Default or Default or event (including such deposit), that, with notice or lapse of time, or both, would become an Event of Default or Default with respect to the Debt Securities of such series shall have occurred and be continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Debt Securities of such series will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant defeasance;
(5) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such deposit and related covenant defeasance will not cause Holders of the Debt Securities of such series, other than Holders who are or who are deemed to be residents of the United Kingdom or use or hold or are deemed to use or hold their Debt Securities in carrying on a business in the United Kingdom, to recognize income, gain or loss for United Kingdom income tax purposes, and to the effect that payments out of the trust fund will be free and exempt from any and all withholding and other income taxes of whatever nature of the United Kingdom or any political subdivision thereof or therein having power to tax, except in the case of Debt Securities beneficially owned (a) by a person who is or is deemed to be a resident off the United Kingdom or (b) by a Person who uses or holds or is deemed to use or hold such Debt Securities in carrying on a business in the United Kingdom; and
(6) the Company shall have delivered to the Trustee an Officer's Certificate stating that all conditions precedent relating to the covenant defeasance have been complied with.
"U.S. Government Obligations" means securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, that, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depositary receipt.
Section 14.03. Deposited Moneys and U.S. Government Obligations to be Held in Trust. All moneys and U.S. Government Obligations deposited with the Trustee pursuant to Section 14.02 in respect of Debt Securities of a series shall be held in trust and applied by it, in accordance with the provisions of such Debt Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Debt Securities, of all sums due and to become due thereon for principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
Section 14.04. Repayment to Company. The Trustee and any Paying Agent shall promptly pay or return to the Company upon Company Request any moneys or U.S. Government Obligations held by them at any time that are not required for the payment of the principal of (and premium, if any) and interest on the Debt Securities of any series for which money or U.S. Government Obligations have been deposited pursuant to Section 14.02.
The provisions of the last paragraph of Section 10.03 shall apply to any money held by the Trustee or any Paying Agent under this Article that remains unclaimed for two years after the Maturity of any series of Debt Securities for which money or U.S. Government Obligations have been deposited pursuant to Section 14.02.
Section 14.05. Indemnity for U.S. Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the deposited U.S. Government Obligations or the principal or interest received on such U.S. Government Obligations.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
Section 15.01. Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
HSBC HOLDINGS PLC
as Issuer
The Bank of New York
as Trustee
HSBC Bank USA
as Paying Agent
HSBC Bank USA
as Registrar
HSBC Bank USA
as Exchange Rate Agent
Attest:
EXHIBIT A
Form of Certification to be Given by Person Entitled to Receive Bearer Security
CERTIFICATE
HSBC Holdings plc
[Title of Debt Securities]
(the "Debt Securities")
This is to certify that, as of the date hereof, principal amount of the above-captioned Debt Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States persons"), (ii) is owned by United States persons that are (a) foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c) (1) (v)) ("financial institutions") purchasing for their own account or for resale, or (b) United States persons who acquired the Securities through foreign branches of the United States financial institutions and who hold the Debt Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuer's agent that it will comply with the requirements of Section 165 (j) (3) (A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c) (2) (i) (D) (7)), and to the further effect that United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
If this certificate is being provided by a clearing organization, it is based on statements provided to it by its member organizations. In such event, we further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any Debt Securities excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our member organizations to the effect that the statements made by such member organizations with respect to any Debt Securities submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in connection with certain tax laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated: ____________, 20__(1)
Exhibit B
Form of election to receive payments in
[Dollars or other applicable currency]
or to rescind such election
The undersigned, registered owner of certificate number R- , representing [name of series of Debt Securities] (the " Debt Securities") in an
aggregate principal amount of , hereby
G elects to receive all payments in respect of the Debt Securities
in [Dollars or other applicable currency], it being understood
that such election shall take effect as provided in the Debt
Securities and, subject to the terms and conditions set forth in
the indenture under which the Debt Securities were issued, shall
remain in effect until it is rescinded by the undersigned or
until such certificate is transferred.
G rescinds the election previously submitted by the undersigned to
receive all payments in respect of the Debt Securities in
[Dollars or other applicable currency], it being understood that
such rescission shall take effect as provided in the Debt
Securities.
|
(Name of Owner)
(Signature of Owner)
Form of Undated Indenture
HSBC HOLDINGS PLC
Issuer
TO
THE BANK OF NEW YORK
Trustee
INDENTURE
Dated as of
Debt Securities
Reconciliation and tie between Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and Indenture dated as of o.
Trust Indenture Act Section Indenture Section Section 310(a)(1) 6.09 (a)(2) 6.09 (a)(3) N.A (a)(4) N.A. (a)(5) 6.09 (b) 6.08, 6.10 (c) N.A Section 311(a) 6.13 (b) 6.13 (c) N.A Section 312(a) 7.01, 7.02(a) (b) 7.02(b) (c) 7.02(c) Section 313(a) 7.03 (b) 7.03 (c) 7.03 (d) 7.03 Section 314(a) 7.04 (a)(4) 10.05 (b) N.A (c)(1) 1.02 (c)(2) 1.02 (c)(3) N.A (d) N.A (e) 1.02 Section 315(a) 6.01 (b) 6.02, 7.03(a) (c) 6.01(b) (d) 6.01(c) (e) 5.14 Section 316 (a)(1)(A) 5.02 (a)(1)(B) 5.13 (a)(2) N.A (b) 5.08 (c) 1.04(f) Section 317(a)(1) 5.03 (a)(2) 5.04 (b) 10.03 Section 318(a) 7 -------------- |
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions................................................1
SECTION 1.02 Compliance Certificates and Opinions......................10
SECTION 1.03. Form of Documents Delivered to Trustee....................11
SECTION 1.04. Acts of Holders; Record Dates.............................12
SECTION 1.05. Notices, etc., to Trustee or Company......................14
SECTION 1.06. Notice to Holders; Waiver.................................14
SECTION 1.07. Conflict with Trust Indenture Act.........................15
SECTION 1.08 Effect of Headings and Table of Contents..................15
SECTION 1.09. Successors and Assigns....................................15
SECTION 1.10. Separability Clause.......................................15
SECTION 1.11. Benefits of Indenture.....................................16
SECTION 1.12. Governing Law.............................................16
SECTION 1.13. Legal Holidays............................................16
SECTION 1.14. Immunity of Incorporators, Stockholders, Officers
and Directors.............................................16
SECTION 1.15. Appointment of Agent; Submission to Jurisdiction;
Waiver of Immunity........................................17
ARTICLE II
FORMS OF DEBT SECURITIES
SECTION 2.01. Forms Generally...........................................17
SECTION 2.02. Form of Debt Securities...................................18
SECTION 2.03. Form of Trustee's Certificate of Authentication...........18
SECTION 2.04. Form of Trustee's Certificate of Authentication by an
Authenticating Agent......................................18
ARTICLE III
THE UNDATED SUBORDINATED DEBT SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series......................19
SECTION 3.02. Denominations.............................................22
SECTION 3.03. Execution, Authentication, Delivery and Dating............23
SECTION 3.04. Temporary Debt Securities.................................25
SECTION 3.05. Registration, Registration of Transfer and Exchange.......27
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities.....31
SECTION 3.07. Payment; Rights Preserved.................................32
SECTION 3.08. Persons Deemed Owners.....................................34
SECTION 3.09. Cancellation..............................................35
SECTION 3.10. Computation of Payments...................................35
SECTION 3.11. Payment in Currencies.....................................36
SECTION 3.12. Certification by a Person Entitled to Delivery
of a Bearer Security......................................38
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge................................38
SECTION 4.02. Application of Trust Money................................40
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default.........................................40
SECTION 5.02. Acceleration; Rescission and Annulment....................40
SECTION 5.03. Defaults; Collection of Indebtedness and Suits
for Enforcement by Trustee................................41
SECTION 5.04. Trustee May File Proofs of Claim..........................42
SECTION 5.05. Trustee May Enforce Claims Without Possession of Debt
Securities or Coupons.....................................43
SECTION 5.06 Application of Money Collected............................43
SECTION 5.07. Limitation on Suits.......................................44
SECTION 5.08. Unconditional Right of Holders to Receive Any
Principal, Premium and Payments...........................44
SECTION 5.09 Restoration of Rights and Remedies........................45
SECTION 5.10. Rights and Remedies Cumulative............................45
SECTION 5.11. Delay or Omission Not Waiver..............................45
SECTION 5.12. Control by Holders of Debt Securities.....................45
SECTION 5.13. Waiver of Past Defaults...................................46
SECTION 5.14. Undertaking for Costs.....................................46
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.......................47
SECTION 6.02. Notice of Defaults........................................48
SECTION 6.03. Certain Rights of Trustee.................................48
SECTION 6.04. Not Responsible for Recitals or Issuance of
Debt Securities...........................................50
SECTION 6.05. May Hold Debt Securities or Coupons.......................50
SECTION 6.06. Money Held in Trust.......................................50
SECTION 6.07. Compensation and Reimbursement............................50
SECTION 6.08. Disqualification; Conflicting Interests...................51
SECTION 6.09. Corporate Trustee Required; Eligibility...................51
SECTION 6.10. Resignation and Removal; Appointment of Successor.........52
SECTION 6.11. Acceptance of Appointment by Successor....................53
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business...............................................55
SECTION 6.13. Preferential Collection of Claims Against Company.........55
SECTION 6.14. Appointment of Authenticating Agent.......................55
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.56
SECTION 7.02. Preservation of Information; Communications to Holders....56
SECTION 7.03. Reports by Trustee........................................58
SECTION 7.04. Reports by Company........................................58
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms......58
SECTION 8.02. Successor Person Substituted..............................59
SECTION 8.03. Assumption of Obligations.................................60
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.........61
SECTION 9.02. Supplemental Indentures With Consent of Holders...........62
SECTION 9.03. Execution of Supplemental Indentures......................63
SECTION 9.04. Effect of Supplemental Indentures.........................64
SECTION 9.05. Conformity with Trust Indenture Act and Financial
Services Authority Requirements...........................64
SECTION 9.06. Reference in Debt Securities to Supplemental Indentures...64
ARTICLE X
COVENANTS
SECTION 10.01 Payment of Any Principal, Premium, Payments and
Missed Payments...........................................65
SECTION 10.02. Maintenance of Office or Agency...........................65
SECTION 10.03. Money for Debt Securities Payments to be Held in Trust....66
SECTION 10.04. Payment of Additional Amounts.............................68
SECTION 10.05. Officer's Certificate as to Compliance with Indenture
and Default...............................................69
SECTION 10.06. Waiver of Certain Covenants...............................70
ARTICLE XI
REDEMPTION OF DEBT SECURITIES
SECTION 11.01. Applicability of Article..................................70
SECTION 11.02 Election to Redeem; Notice to Trustee.....................70
SECTION 11.03 Selection by Trustee of Debt Securities to be Redeemed....71
SECTION 11.04. Notice of Redemption......................................71
SECTION 11.05 Deposit of Redemption Price...............................72
SECTION 11.06 Debt Securities Payable on Redemption Date................72
SECTION 11.07. Debt Securities Redeemed in Part..........................73
SECTION 11.08. Optional Redemption in the Event of Change in
Tax Treatment............................................74
ARTICLE XII
SUBORDINATION OF DEBT SECURITIES
SECTION 12.01. Debt Securities Subordinate to Certain Creditors..........75
SECTION 12.02. Provisions Solely to Define Relative Rights...............80
SECTION 12.03. Trustee to Effectuate Subordination.......................80
SECTION 12.04. No Waiver of Subordination Provisions.....................81
SECTION 12.05. Notice to Trustee.........................................81
SECTION 12.06. Reliance on Judicial Order or Certificate of
Liquidating Agent.........................................82
SECTION 12.07. Trustee Not Fiduciary for Holders of Claims...............82
SECTION 12.08. Rights of Trustee as Holder of Claims; Preservation
of Trustee's Rights................82
SECTION 12.09. Article Applicable to Paying Agents.......................82
SECTION 12.10. Conversion Not Deemed Payment.............................82
SECTION 12.11. Governing Law.............................................83
SECTION 12.12 Third Party Rights........................................83
ARTICLE XIII
EXCHANGE OR CONVERSION OF DEBT SECURITIES
SECTION 13.01. Applicability of Article..................................83
SECTION 13.02. Election to Exchange or Convert; Notice to Trustee........83
SECTION 13.03. Notice of Exchange or Conversion..........................83
SECTION 13.04. Deposit of Payments.......................................84
SECTION 13.05. Surrender of Debt Securities..............................84
SECTION 13.06. Issuance of Dollar Preference Shares or Exchange
Securities or Conversion Securities.......................85
SECTION 13.07. Effect of Exchange or Conversion..........................85
SECTION 3.08 Validity of Dollar Preference Shares or Conversion
Securities or Exchange Securities.........................86
SECTION 13.09. Legal and Regulatory Compliance...........................86
SECTION 13.10. Taxes and Charges.........................................87
SECTION 13.11. Trustee Not Liable........................................88
ARTICLE XIV
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 14.01. Rules by Trustee, Paying Agent and Registrar...............88
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INDENTURE dated as of o, between HSBC Holdings plc, a public limited company duly organized and existing under the laws of England and Wales (hereinafter called the "Company"), having its principal office at 8 Canada Square, London E14 5HQ, England, and The Bank of New York, a New York banking corporation, as Trustee (hereinafter called the "Trustee"), on the date hereof having its principal corporate trust office located at 101 Barclay Street, Floor 21 West, New York, New York 10286.
RECITALS OF THE COMPANY
The Company has heretofore duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its subordinated debt securities with no specified date for maturity (herein called the "Debt Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary have been done to make this Indenture a valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Debt Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article, unless otherwise specified pursuant to Section 3.01 with respect to the Debt Securities of any series, and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that Article.
"Acceleration" has the meaning specified in Section 5.02.
"Act" when used with respect to any Holder has the meaning specified in Section 1.04.
"ADR Custodian" means the custodian under the Deposit Agreement.
"ADR Deposit Agreement" means the deposit agreement, dated as of o, between the Company, The Bank of New York, as depositary, and holders from time to time of American Depositary Receipts issued thereunder.
"ADR Depositary" means the depositary under the ADR Deposit Agreement.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the possession, direct or indirect, of the power to cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling", "controlled" and "under common control with" have meanings correlative to the foregoing.
"Assets" means the unconsolidated gross assets (including contingencies) of the Company, as shown in the latest published balance sheet having the benefit of an unqualified Auditors' report, but with such adjustments as the Auditors or, if the Company is in winding up, the liquidator shall determine in their or his report given in accordance with Section 12.01(c).
"Auditors" means the auditors for the time being of the Company or, if there shall be joint auditors of the Company, any one of such joint auditors or, in the event of their being unable or unwilling to carry out any action requested of them pursuant to the provisions of these presents, such other firm of internationally recognized accountants as may be nominated by the Company.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Debt Securities of one or more series.
"Authorized Newspaper" means a newspaper in an official language of the country of publication or in the English language customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day. Unless otherwise specified pursuant to Section 3.01 with respect to the Debt Securities of any series, the Authorized Newspaper in New York City shall be The Wall Street Journal, in London shall be the Financial Times and in Luxembourg shall be the Luxemburger Wort.
"Bearer Security" means any Debt Security described in Section 2.02 that is payable to bearer.
"Board of Directors" means the board of directors of the Company, or any duly authorized committee of that board or any one or more directors and/or officers of the Company to whom such board or any such committee shall have duly delegated its authority.
"Board Resolution" means a copy of a resolution certified by the Secretary of the Company to have been duly adopted by the Board of Directors of the Company and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any other location, means, except as may otherwise be provided with respect to a particular series of Debt Securities, a weekday that is not a day on which banking institutions are authorized or obligated by law or executive order to close in any jurisdiction in which payments with respect to such series are payable.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by an authorized officer of the Company and delivered to the Trustee.
"Conversion" has the meaning specified in Section 3.01(20).
"Conversion Securities" has the meaning specified in Section 3.01(20).
"Corporate Trust Office" means the principal corporate trust office of the Trustee at which at any particular time its corporate trust business shall be administered which on the date hereof is located at 101 Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate Trust Administration.
The term "corporation" includes corporations, associations, companies, joint stock companies, trusts and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Debt Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Debt Securities authenticated and delivered under this Indenture.
"Debt Security Deposit Agreement" means the deposit agreement, dated as of o, between the Company, the Depositary and holders from time to time of book-entry Debt Securities.
"Default" has the meaning specified in Section 5.03.
"Depositary" means, with respect to the Debt Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Debt Securities of any such series shall mean the Depositary with respect to the
Debt Securities of that series.
"Dollar" or "$" means the coin or currency of the United States of America that as at the time of payment is legal tender for the payment of public and private debts.
"Dollar Preference Shares" means a designated series of non-cumulative dollar preference shares of the Company for which, if applicable to a particular series of Debt Securities, the Company may convert any series of Debt Securities.
"DTC" means, with respect to the Debt Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Company that is a clearing agency registered under the Exchange Act.
"Euro" or "(euro)" means the single currency adopted by those states participating in the European Monetary Union from time to time.
"Event Date" has the meaning specified in Section 3.01(20).
"Event of Default" has the meaning specified in Section 5.01.
"Excepted Person" has the meaning specified in Section 13.10.
"Exchange" has the meaning specified in Section 3.01(20).
"Exchange Securities" has the meaning specified in Section 3.01(20).
"Exchange Rate" means (a) with respect to Dollars in which
payment is to be made on Debt Securities denominated in a Foreign Currency, the
noon Dollar buying rate in The City of New York for cable transfers payable in
such Foreign Currency on the applicable Record Date or the fifteenth day
immediately preceding the Maturity of any principal, as the case may be, as
certified for customs purposes by the Federal Reserve Bank of New York, (b) with
respect to a Foreign Currency in which payment is to be made on Debt Securities
denominated in Dollars or converted into Dollars pursuant to Section 3.11(d),
the noon Dollar selling rate in The City of New York for cable transfers payable
in such Foreign Currency on the applicable Record Date or the fifteenth day
immediately preceding the Maturity of any principal, as the case may be, as
certified for customs purposes by the Federal Reserve Bank of New York, and (c)
with respect to a Foreign Currency in which payment is to be made on Debt
Securities denominated in a different Foreign Currency, the exchange rate
between such Foreign Currencies determined in the manner specified pursuant to
Section 3.01(16). If for any reason such rates are not available with respect to
one or more currencies for which an Exchange Rate is required, the Exchange Rate
Agent shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in The City of New
York or in the country of issue of the currency in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent if there is more than one market for
dealing in any currency by reason of foreign exchange regulations or otherwise,
the market to be used in respect of such currency shall be that upon which a
nonresident issuer of securities denominated in such currency would purchase
such currency in order to make payments in respect of such securities.
"Exchange Rate Agent" means the Person, which may be the Company, the Paying Agent or a bank or financial institution designated by the Company to perform the functions of Exchange Rate Agent with respect to the Debt Securities of a series.
"Exchange Rate Agent's Certificate", with respect to any date for the payment of any principal, premium, Payment or Missed Payment, if any, in respect of the Debt Securities of any series, means a certificate setting forth the applicable Exchange Rate or Rates as of the applicable Record Date or the fifteenth day immediately preceding the Maturity of any principal, as the case may be, and the amounts payable in Dollars and Foreign Currencies in respect of any principal, premium, Payment or Missed Payment, if any, in respect of Debt Securities denominated in Euro or any Foreign Currency, and signed by or on behalf of the Exchange Rate Agent and delivered to the Trustee and the Paying Agent.
"Foreign Currency" means a currency issued by the government of any country other than the United States of America.
"Global Security" means a Registered or Bearer Security evidencing all or any part of the Debt Securities of a series, issued to the Depositary for such series in accordance with Section 3.03(c).
"Holder" means with respect to a Registered Security, the Person in whose name such Registered Security is registered in the Register and, with respect to a Bearer Security or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented, amended or restated by or pursuant to one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, unless the context otherwise requires, shall include the terms of the Debt Securities of each series established as contemplated by Section 3.01.
"Indexed Security" means any Debt Security that is a Principal Indexed Security or an Interest Indexed Security, or both, and any other Debt Security that is specified as an Indexed Security pursuant to Section 3.01.
"Interest Indexed Security" means any Debt Security (including any Principal Indexed Security) that provides that the amount of interest payable in respect thereof shall be determined by reference to an index based on a currency or currencies or on the price or prices of one or more commodities or securities, by reference to changes in the price or prices of one or more currencies, commodities or securities or otherwise by application of a formula.
"Liabilities" means the unconsolidated gross liabilities
(including contingencies) of the Company, as shown in the latest published
balance sheet having the benefit of an unqualified Auditors' report, but with
such adjustments as the Auditors or, if the Company is in winding up, the
liquidator shall determine in their or his report given in accordance with
Section 12.01(c).
"Maturity", when used with respect to any Debt Security, means the date, if any, on which the principal of such Debt Security becomes due and payable as therein or herein provided, whether by Acceleration, call for redemption, winding up of the Company or otherwise.
"Missed Payment" has the meaning specified in Section 3.07.
"Missed Payment Date" has the meaning specified in Section 3.07.
"Officer's Certificate" means a certificate signed by an authorized officer of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Company and who shall be satisfactory to the Trustee, which is delivered to the Trustee.
"Ordinary Creditors" means creditors of the Company except creditors in respect of Subordinated Indebtedness.
"Outstanding", when used with respect to the Debt Securities of any series, means, as of the date of determination, all Debt Securities of such series theretofore issued by the Company and authenticated and delivered under this Indenture, except:
(i) Debt Securities of such series theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities of such series for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Debt Securities and any Coupons appertaining thereto; provided, however, that if such Debt Securities are to be redeemed, notice of such redemption shall have been duly given pursuant to this Indenture or provision therefore satisfactory to the Trustee shall have been made; and
(iii) Debt Securities of such series that have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Debt Securities have been authenticated and delivered pursuant to this Indenture, other than any such Debt Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Debt Securities are held by a bona fide purchaser in whose hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Debt Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver or taken any other action hereunder, Debt Securities of such series owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee shall be protected in relying upon such request, demand, authorization, direction, notice, consent, waiver or action, only Debt Securities of such series about which the Trustee has received written notice shall be so disregarded. Debt Securities of such series so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Debt Securities and that the pledgee is not the Company or any Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any, on), Payments or Missed Payment, if any, on any Debt Securities on behalf of the Company.
"Payment" means, unless otherwise provided by Section 3.01 hereof, payment made to Holders at a rate per annum of the principal amount of the Debt Securities of a series as determined by the Company and set forth in such Debt Securities or determinable pursuant to the terms of such Debt Securities.
"Payment Date" when used with respect to any Debt Security, means the date for payment of any Payment on such Debt Security, as determined and set forth in such Debt Security.
"Permanent Global Security" means, a Global Security that is, at the time of the initial issuance of the related series of Debt Securities, issued in permanent global bearer form without Coupons.
"Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Registered Security of any series payable in Dollars, means the Corporate Office of the Paying Agent in New York, New York; when used with respect to the Debt Securities of any series payable in a Foreign Currency, means the place or places where such Foreign Currency is the legal tender; and, when used with respect to the Debt Securities of any series, means such other place or places, if any, where any principal of (and premium, if any, on), Payments or Missed Payments, if any, on the Debt Securities of that series are payable as contemplated by Section 3.01.
"Pounds Sterling" or "(pound)" means the currency of the United Kingdom.
"Predecessor Security" of any particular Debt Security means every previous Debt Security evidencing all or a portion of the same debt as that evidenced by such particular Debt Security; and, for the purposes of this definition, any Debt Security authenticated and delivered under Section 3.06 in lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Debt Security.
"Principal Indexed Security" means any Debt Security (including any Interest Indexed Security) that provides that the amount of principal payable in respect thereof shall be determined by reference to an index based on a currency or currencies or on the price or prices of one or more commodities or securities, by reference to changes in the price or prices of one or more currencies, commodities or securities or otherwise by application of a formula.
"Record Date" for a Payment or Missed Payment on the Debt Securities of any series means the date (whether or not a Business Day) specified for that purpose as contemplated by Section 3.01.
"Redemption Date", when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Debt Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Register" and "Registrar" have the respective meanings specified in Section 3.05.
"Registered Security" means any Debt Security in the form of registered securities established pursuant to Section 2.02 that is registered in the Register.
"Responsible Officer" when used with respect to the Trustee means any officer within the Corporate Trust department of the Trustee (or any successor group), including any vice president, assistant vice president, assistant secretary, assistant treasurer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Solvency Condition" has the meaning specified in Section 12.01(b).
"Solvent" means, in relation to the Company, that the Company
(a) is able to pay its debts as they fall due, and (b) its Assets exceed its
Liabilities (other than its Liabilities to persons in respect of Subordinated
Indebtedness).
"Subordinated Indebtedness" means any liability of the Company however arising for the payment of money, the right to payment of which by the Company by the terms thereof is, or is expressed to be, subordinated in the event of a winding up of the Company to the claims of all or any of the creditors of the Company.
"Taxing Jurisdiction" has the meaning specified in Section 10.04.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Debt Securities of any series shall mean the Trustee with respect to the Debt Securities of such series.
"Undated Subordinated Debt Other pari passu Claims" means, in relation to the Debt Securities of any series, any claims which are expressed to rank pari passu with the claims of the holders of Debt Securities of such series.
"United States" means the United States of America (including the States thereof and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction.
"U.S. Government Obligations" means securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, that, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depositary receipt.
SECTION 1.02 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer's Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. The Trustee may conclusively rely and shall be fully protected in relying on such certificates and opinions.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture, other than certificates provided pursuant to Section 10.05, shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based is erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters or information which is in the possession of the Company, upon a certificate or opinion of, or representations by, an officer or officers of the Company with respect to such factual matters, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters is or are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing or any other evidence as the Trustee deems acceptable in its reasonable discretion or is customary in respect of DTC. If the Debt Securities of a series are issuable in whole or in part as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may, alternatively, be embodied in and evidenced by the record of a meeting of Holders of Debt Securities of such series duly called and held in accordance with the provisions of Article Fourteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments or record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of any notary public or other officer authorized by law to take acknowledgements of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any manner that the Trustee deems sufficient.
(c) The ownership of Registered Securities of any series shall be proved by the Register with respect to such series.
(d) The principal or face amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
Depositary, by any trust company, bank, banker or other Depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
Depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
of affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing, the authority of the Person executing the same and the principal or face amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the same may also be proved in any other manner that the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
(f) If the Company shall solicit from the Holders of Debt Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by Board Resolution, fix in advance a record date for the purposes of determining the identity of Holders of Registered Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Any such record date shall be fixed at the Company's discretion. If such a record date is fixed, such request, demand, authorization, direction, notice, consent and waiver or other Act may be sought or given before or after the record date, but only the Holders of Registered Securities of record at the close of business on such record date shall be deemed to be Holders of Registered Securities for the purpose of determining whether Holders of the requisite proportion of Debt Securities of such series Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Registered Securities of such series Outstanding shall be computed as of such record date.
(g) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Debt Security shall bind every future Holder of the same Debt Security and any Debt Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, suffered or omitted by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Debt Security.
(h) For the purposes of determining the aggregate principal
amount of Outstanding Debt Securities of any series, the Holders of which are
required, requested or permitted to give any request, demand, authorization,
direction, notice, consent or waiver or take any other Act under this Indenture,
(i) each Principal Indexed Security shall be deemed to have a principal amount
equal to the face amount thereof and (ii) each Debt Security denominated in a
Foreign Currency shall be deemed to have the principal amount determined by the
Trustee, based upon an Exchange Rate Agent's Certificate upon which the Trustee
may conclusively rely, by converting the principal amount of such Debt Security
in the currency in which such Debt Security is denominated into Dollars at the
Exchange Rate as of the record date set with respect to such Act or, if no such
record date is set, the date such Act is delivered to the Trustee and, where it
is hereby expressly required, to the Company (or, if there is no such rate on
such date for the reasons specified in Section 3.11(d), such rate on the date
specified in such Section).
SECTION 1.05. Notices, etc., to Trustee or Company. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made to the Trustee at its Corporate Trust Office, given, furnished or filed in writing and mailed, first class postage prepaid, or if by the Company, via electronic communication such as facsimile, and followed by a hard copy delivered by guaranteed overnight delivery courier, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing, or via telex or facsimile and mailed, first-class postage prepaid, or, in the case of electronic communication, transmitted, to the Company marked for the attention of the Secretary and addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address or at any telex or facsimile number previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver. Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of any event, (1) such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of Registered Securities affected by such event, at his address as it appears in the Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice and (2) such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in The City of New York. If the Debt Securities of such series are then admitted to the official list of the UK Listing Authority and admitted to trading on the London Stock Exchange plc, and the UK Listing Authority or such stock exchange shall so require, notices shall also be published in an Authorized Newspaper in London and, if the Debt Securities of such series are then listed on the Luxembourg Stock Exchange and such stock exchange shall so require, in Luxembourg and, if the Debt Securities of such series are then listed on any other stock exchange outside the United States and such stock exchange shall so require, in any other required city outside the United States or, if not practicable, in Europe on a Business Day at least twice, the first such publication to be not earlier than the earliest date and not later than the latest date prescribed for the giving of such notice. For the avoidance of doubt, failing to put the notice in an Authorized Newspaper will not affect the sufficiency of any notice given in accordance with the first sentence of this Section 1.06.
In the event of suspension of regular mail service or if for any other reason it shall be impracticable to give such notice to Holders of Registered Securities by mail, then such a notification to Holders of Registered Securities as shall be satisfactory to the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed to any particular Holder of Registered Securities shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice by publication to Holders of Bearer Securities given as provided above.
In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Debt Securities listed on such stock exchange requiring publication as provided above, then such notification to Holders of such Debt Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither failure to give notice by publication to Holders of such Debt Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice mailed to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent, election, waiver or other Act required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
SECTION 1.07. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
SECTION 1.08 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this Indenture or in the Debt Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in the Debt Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. THIS INDENTURE AND THE DEBT SECURITIES AND COUPONS AND THE RIGHTS AND DUTIES OF THE TRUSTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, EXCEPT THAT MATTERS RELATING TO THE SUBORDINATION PROVISIONS CONTAINED IN ARTICLE TWELVE OF THIS INDENTURE AND IN THE DEBT SECURITIES AND THE AUTHORIZATION AND EXECUTION BY THE COMPANY OF THIS INDENTURE AND THE DEBT SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH ENGLISH LAW.
SECTION 1.13. Legal Holidays. In any case where any Payment Date, Missed Payment Date, Redemption Date, Event Date or Maturity, if any, of any Debt Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Debt Securities or Coupons) payment of any Payment, Missed Payment, principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the first succeeding Business Day at such Place of Payment with the same force and effect as if made on the Payment Date, Missed Payment Date, the Redemption Date, the Event Date or at the Maturity, and no interest shall accrue (if otherwise payable) on such payment for the period from and after such Payment Date, Missed Payment Date, Event Date, Redemption Date or Maturity, as the case may be.
SECTION 1.14. Immunity of Incorporators, Stockholders, Officers and Directors. No recourse shall be had for the payment of any principal, premium, Payment or Missed Payment, if any, in respect of any Debt Security of any series or upon any obligation, covenant or agreement of this Indenture or any Indenture supplemental hereto, or any Debt Security or Coupon, or because of any indebtedness evidenced thereby, or for any claim based thereon, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Debt Securities of each series are solely corporate obligations of the Company, and that no personal liability whatsoever shall attach to, or is incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any predecessor or successor corporation, either directly or indirectly through the Company or any predecessor or successor corporation, because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Debt Securities of any series or Coupon, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the Debt Securities of each series and Coupons.
SECTION 1.15. Appointment of Agent; Submission to Jurisdiction; Waiver of Immunity. The Company has designated and appointed HSBC Bank USA, currently having its address at 452 Fifth Avenue, New York, New York 10018-2706 (c/o Issuer Services), as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Debt Securities or Coupons appertaining thereto or this Indenture which may be instituted in any State or Federal court in The City of New York. By the execution and delivery of this Indenture, the Company submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Company, shall be deemed in every respect effective service of process upon the Company, in any such suit or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said agent in full force and effect so long as any of the Debt Securities shall be Outstanding.
The Company hereby represents that HSBC Bank USA has agreed to act as the Company's authorized agent upon which process may be served in any such suit or proceeding.
ARTICLE II
FORMS OF DEBT SECURITIES
SECTION 2.01. Forms Generally. All Debt Securities and Coupons, if any, and the Trustee's certificate of authentication shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or by a Board Resolution and as set forth in an Officer's Certificate or any indenture supplemental hereto and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which Debt Securities of any series may be listed or of any automated quotation system on which such Debt Securities may be quoted, or to conform to usage.
The definitive Debt Securities and Coupons, if any, of each series shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which Debt Securities of such series may be listed or of any automated quotation system on which such Debt Securities may be quoted or in any other manner deemed appropriate by the Company, all as determined by the officers executing such Debt Securities and Coupons, as conclusively evidenced by their execution of such Debt Securities and Coupons.
SECTION 2.02. Form of Debt Securities. Each Debt Security
shall be substantially in one of the forms approved from time to time by or
pursuant to a Board Resolution and an Officer's Certificate or one or more
indentures supplemental hereto which shall set forth the information required by
Section 3.01. Unless otherwise provided as contemplated by Section 3.01 with
respect to the Debt Securities of any series, the Debt Securities of each series
shall be issuable in bearer form and represented by a Permanent Global Security.
If so provided as contemplated by Section 3.01, the Debt Securities of a series
shall be issuable in whole or in any part (a) in bearer form, with Coupons
attached, (b) in registered and bearer form or (c) in the form or one or more
Global Securities.
Each Bearer Security and Coupon not represented by a Permanent Global Security shall bear a legend to the following effect: "Any United States Person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code."
SECTION 2.03. Form of Trustee's Certificate of Authentication. The form of the Trustee's certificate of authentication to be borne by the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of a series issued under the within-mentioned Indenture.
The Bank of New York as Trustee
SECTION 2.04. Form of Trustee's Certificate of Authentication by an Authenticating Agent.
If at any time there shall be an Authenticating Agent appointed with respect to any series of Debt Securities, then the Trustee's Certificate of Authentication by such Authenticating Agent to be borne by the Debt Securities of each such series shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of a series issued under the within-mentioned Indenture.
The Bank of New York as Trustee
ARTICLE III
THE UNDATED SUBORDINATED DEBT SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Debt Securities that may be authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall distinguish the Debt Securities of such series from all other Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the Debt Securities of the series that may be authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of the series pursuant to Section 3.04, Section 3.05, Section 3.06, Section 9.06 or Section 11.07);
(3) the dates on which or periods during which the Debt Securities of the series may be issued, and that Debt Securities of such series will be perpetual;
(4) the rate or rates, if any, or the method of determination thereof at which Payments on the Debt Securities of the series shall be made, if any, the date or dates, if any, from which such Payments shall accrue, the Payment Dates, if any, on which Payments shall be payable or the manner of determination of such Payment Dates and in the case of Registered Securities, the Record Dates for the Payments payable on such Payment Dates;
(5) the periods within which or the dates on which, the prices at which and the terms and conditions upon which Debt Securities of the series may be redeemed, if any, in whole or in part, at the option of the Company or otherwise;
(6) the place or places where any principal, premium, Payments or Missed Payments, if any, in respect of Debt Securities of the series shall be payable;
(7) whether payments are subject to a Solvency Condition;
(8) whether there are any other conditions to which payments with respect to such Debt Securities are subject;
(9) whether the Debt Securities of the series are to be issued as Registered Securities or Bearer Securities or both, and, if Bearer Securities are issued, whether Coupons will be attached thereto, whether Bearer Securities of the series may be exchanged for Registered Securities of the series and the circumstances under which and the places at which any such exchange, if permitted, may be made;
(10) if any Debt Securities of the series are to be issued as Bearer Securities or as one or more Global Debt Securities representing individual Bearer Securities of the series, (a) whether the provisions of Section 10.04 and Section 11.08 or other provisions for payment of additional interest or tax redemptions shall apply and, if other provisions shall apply, such other provisions; provided, however, that no such other provisions shall, without the consent of the Trustee, impose material additional burdens on the Trustee not contemplated by this Indenture; (b) whether a Payment or Missed Payment, if any, in respect of any portion of a temporary Global Security of the series (delivered pursuant to Section 3.04) payable in respect of any Payment Date or Missed Payment Date, as the case may be, prior to the exchange of such temporary Global Security for a permanent Global Security or for a definitive Bearer Security of the series shall be paid to any clearing organization or other Person entitled to a Payment or Missed Payment, if any, payable on such Payment Date or Missed Payment Date, as the case may be,, with respect to the portion of such temporary Global Security held for its account and the terms and conditions (including any certification requirements) upon which any such interest payment will be made; and (c) the terms upon which a temporary Global Security may be exchanged for a permanent Global Security or for a definitive Bearer Security of the series, provided, that if no terms are specified upon which a temporary Global Security may be exchanged for a definitive Bearer Security, such temporary Global Security shall, if exchangeable at all, only be exchangeable for a definitive Debt Security in registered form;
(11) whether any Debt Securities of the series are to be issued in whole or in part in the form of one or more Global Securities, provided, that if not so specified, Debt Securities shall be issued in whole in the form of one or more Global Securities; and, in the case of Debt Securities to be issued in whole in the form of one or more Global Securities, the Depositary for such Global Security or Debt Securities and the terms and conditions, if any, upon which interests in such Global Security or Debt Securities may be exchanged in whole or in part for the individual Debt Securities represented thereby, provided, that if no terms are specified for such exchange, a Global Security or Debt Security shall, if exchangeable at all, only be exchangeable for an individual Debt Security in registered form;
(12) the denominations in which Debt Securities of the series, if any, shall be issuable, if other than denominations as provided in Section 3.02;
(13) if other than the principal amount thereof, the portion of the principal amount of Debt Securities of the series that shall be payable upon Acceleration pursuant to Section 5.02;
(14) the currency or currencies of denomination of Debt Securities of the series, which may be Dollars or any Foreign Currency;
(15) the currency or currencies in which payment of any principal of (and premium, if any, on) Payments or Missed Payments, if any, on the Debt Securities of the series may be made, and the currency or currencies, if any, in which payment of any principal of (and premium, if any, on) Payments or Missed Payments, if any, on Debt Securities of the series may, at the election of Holders thereof, also be payable, and the Exchange Rate Agent, if any, designated for the Debt Securities of the series;
(16) if payments of any principal, premium, Payments or Missed Payments, if any, in respect of Debt Securities of the series may, at the election of the Holders, be made in a Foreign Currency other than the Foreign Currency in which such Debt Securities are denominated or stated to be payable, the periods within which, and the terms and conditions upon which, such election may be made and the time and the manner of determining the exchange rate between the currency in which such Debt Securities are denominated or stated to be payable and the currency in which such amounts are to be paid pursuant to such election;
(17) whether any Debt Securities of the series are to be issued as Indexed Securities and, if so, the manner in which the principal of (and premium, if any, on), Payments and Missed Payments, if any, thereon shall be determined and the amount payable upon acceleration under Section 5.02 and any other terms in respect thereof;
(18) any restrictive covenants provided for with respect to Debt Securities of the series;
(19) any other Events of Default;
(20) whether the Debt Securities of the series shall be exchangeable at the option of the Company for any other securities or convertible into Dollar Preference Shares or other securities of the Company to be delivered by the Company pursuant to Article Thirteen (any such exchange being referred to herein as the "Exchange" and any such conversion being referred to herein as the "Conversion"; the date of such exchange or conversion being referred to as the "Event Date"; the securities to be delivered by the Company in exchange for such Debt Securities being referred to as "Exchange Securities" and the securities to be delivered by the Company upon the conversion of such Debt Securities being referred to as "Conversion Securities", or if such securities are Dollar Preference Shares, as "Dollar Preference Shares") and, if so, the nature of the Exchange Securities or Conversion Securities, as the case may be, and any additional or other provisions relating to such Exchange or Conversion; and
(21) any other terms of the series (which terms shall not adversely affect any prior series of Debt Securities or be inconsistent with the provisions of the Trust Indenture Act).
All Debt Securities of any one series and the Coupons appertaining to Bearer Securities of such series, if any, shall be substantially identical except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officer's Certificate or provided in or pursuant to any such indenture supplemental hereto. All Debt Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened for issuance of additional Debt Securities of such series.
If any of the terms of the Debt Securities of a series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the appropriate officer of the Company and delivered to the Trustee at or prior to the delivery of the Officer's Certificate setting forth the terms of such Debt Securities.
SECTION 3.02. Denominations. Unless otherwise provided as
contemplated by Section 3.01 with respect to the Debt Securities of any series
and except as provided in Section 3.03, the Registered Securities of each
series, if any, shall be issuable in denominations of $1,000, (euro)1,000 or
(pound)1,000 and any integral multiple thereof and the Bearer Securities of each
series, if any, shall be issuable in denominations of $1,000, $10,000 and
$100,000; (euro)1,000, (euro)10,000 and (euro)100,000 or (pound)1,000,
(pound)10,000 and (pound)100,000.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities and the Coupons appertaining thereto shall be executed on behalf of the Company by an authorized officer. Such signature and the attestation, if any, to the affixing of the seal may be in the form of facsimile signature of any present or any future authorized officer and may be imprinted or otherwise reproduced on the Debt Securities. The Company may adopt and use the signatures or facsimile signatures of the persons who shall be authorized signatories of the Company at the time of execution of the Debt Securities and any Coupons appertaining thereto, irrespective of the date as of which the same shall be executed, or of any person who shall have been an authorized officer of the Company, notwithstanding the fact that at the time the Debt Securities shall be authenticated and delivered or disposed of such person shall have ceased to be an authorized officer as the case may be.
(b) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver one or more Debt Securities of any series executed by the Company to the Trustee or the Authenticating Agent for authentication, together with a Company Order for the authentication and delivery of such Debt Securities, and the Trustee or the Authenticating Agent in accordance with the Company Order shall authenticate and deliver such Debt Securities; provided, however, that, in connection with its original issuance, a Bearer Security not represented by a Permanent Global Security may be delivered only outside the United States; and provided further that, in connection with the original issuance of any Bearer Security other than a temporary Global Security or a Permanent Global Security, unless otherwise delivered by the Company on advice of counsel, neither the Company nor its agent shall deliver any Bearer Security unless the Company or its agent receives from the person entitled to delivery of such Bearer Security a certificate substantially in the form set forth in Exhibit A hereto, dated as of the date of such delivery, and neither the Company nor its agent has any reason to know that such certificate is false. If the Company shall establish pursuant to Section 3.01 that the Debt Securities of any series may be originally issued from time to time, the Trustee or the Authenticating Agent shall authenticate and deliver Debt Securities of such series for original issue from time to time in accordance with such procedures acceptable to the Trustee as may be specified from time to time by Company Order. Such procedures may authorize authentication and delivery pursuant to written instructions or instructions via electronic communication such as telex or facsimile confirmed in writing by guaranteed delivery overnight courier from the Company or its duly authorized agent. The Trustee shall be entitled to receive, prior to the authentication and delivery of the Debt Securities of any series, the supplemental indenture or the Board Resolution by or pursuant to which the terms and form of such Debt Securities have been approved (and, if such form is approved pursuant to a Board Resolution, the Officer's Certificate approving such terms and form), an Officer's Certificate as to the absence of any event that is, or after notice or lapse of time or both would become, an Event of Default, and, if requested by the Trustee, an Opinion of Counsel stating that:
(1) all instruments furnished by the Company to the Trustee in connection with the authentication and delivery by the Trustee of such Debt Securities and Coupons if any conform to the requirements of this Indenture and constitute sufficient authority hereunder for the Trustee to authenticate and deliver such Debt Securities;
(2) the forms of such Debt Securities and Coupons, if any, have been established in conformity with the provisions of this Indenture;
(3) the terms of such Debt Securities and Coupons, if any, have been established in conformity with the provisions of this Indenture;
(4) in the event that the forms or terms of such Debt Securities and Coupons, if any, have been established in a supplemental indenture, the execution and delivery of such supplemental indenture by the Company has been duly authorized by all necessary corporate action of the Company, such supplemental indenture has been duly executed and delivered by the Company and, assuming that the Trustee has satisfied those legal requirements that are applicable to it to the extent necessary to make such supplemental indenture enforceable against it, is a legal, valid, binding and enforceable agreement of the Company, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(5) the execution and delivery of such Debt Securities and Coupons, if any, have been duly authorized by all necessary corporate action of the Company and such Debt Securities and Coupons, if any, have been duly executed by the Company and, assuming due authentication by the Trustee (or the Authenticating Agent, as the case may be) and delivery by the Company are the legal, valid, binding and enforceable obligations of the Company entitled to the benefits of the Indenture, subject to applicable bankruptcy insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); and
(6) such other matters as the Trustee may reasonably request.
Notwithstanding any contrary provision herein, if the Company shall establish pursuant to Section 3.01 that the Debt Securities of a series may be originally issued from time to time, it shall not be necessary to deliver the Board Resolution, Officer's Certificate and Opinion of Counsel otherwise required pursuant to this Section or Section 1.02 at or prior to the time of authentication of each Debt Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Debt Security of such series to be issued but the Trustee shall be entitled to request and receive copies thereof.
(c) Unless the Company specifies pursuant to Section 3.01 that the Debt Securities of a series will be made available in definitive bearer form, such Debt Securities shall be issued in the form of one or more Global Securities in permanent form, and the Company shall execute and the Trustee or the Authenticating Agent shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more Global Securities that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of such series to be represented by one or more Global Securities, and (ii)if in registered form, shall be registered in the name of the Depositary for such Global Security or Debt Securities or the nominee of such Depositary and be delivered by the Trustee to such Depositary or pursuant to such Depositary's instruction; if in bearer form, shall be delivered to and held by the Depositary in accordance with the Debt Security Deposit Agreement, dated o.
(d) The Trustee shall have the right to decline to authenticate and deliver any Debt Security under this Section if the Trustee, upon the advice of counsel, determines that such action may not lawfully be taken or if the Trustee, by a committee of Responsible Officers, shall determine in good faith that the authentication and delivery of such Debt Security would be unjustly prejudicial to Holders of Outstanding Debt Securities.
(e) Each Debt Security shall be dated the date of its authentication.
(f) No Debt Security or Coupon attached thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Debt Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of one of its authorized signatories, and such certificate of authentication upon any Debt Security shall be conclusive evidence, and the only evidence, that such Debt Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Except as permitted by Section 3.05 or Section 3.06, neither the Trustee nor the Authenticating Agent shall authenticate and deliver any Bearer Security unless all appurtenant Coupons for interest then matured have been detached and cancelled.
SECTION 3.04. Temporary Debt Securities. If so provided pursuant to Section 3.01, pending the preparation of a permanent Global Security or definitive Debt Securities of any series, the Company may execute, and upon Company Order the Trustee or the Authenticating Agent shall authenticate and deliver, temporary Debt Securities that are printed, lithographed, typewritten, photocopied or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Debt Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more Coupons or without Coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Debt Securities and Coupons may determine to be appropriate, as conclusively evidenced by their execution of such Debt Securities and Coupons. In the case of Debt Securities of any series, such temporary Debt Securities may be in global form, representing all or a portion of the Outstanding Debt Securities of such series.
If temporary Debt Securities of any series are issued, the
Company will cause definitive Debt Securities of such series to be prepared
without unreasonable delay. Except as otherwise specified as contemplated by
Section 3.01(10) with respect to a series of Debt Securities issuable as Bearer
Securities or as one or more Global Debt Securities representing individual
Bearer Securities of the series, (i) after the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company
in a Place of Payment for such series, without charge to the Holder, except as
provided in Section 3.05 in connection with a transfer and except that a Person
receiving definitive Bearer Securities shall bear the cost of insurance,
postage, transportation and the like unless otherwise specified pursuant to
Section 3.01, and (ii) upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons
appertaining thereto), the Company shall execute and the Trustee or the
Authenticating Agent shall authenticate and deliver in exchange therefor a like
principal amount (or, in the case of any Principal Indexed Security, face
amount), in any authorized denomination or denominations, of definitive Debt
Securities of the same series and of like tenor; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided further that neither a permanent Global
Security in bearer form nor a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security unless the Company or its agent
receives a certificate substantially in the form set forth in Exhibit A hereto,
dated as of the date of such exchange, unless such certificate has previously
been provided pursuant to the provisions of the next succeeding paragraph; and
provided further that delivery of a Bearer Security not represented by a
Permanent Global Security shall occur only outside the United States; and
provided further that neither a permanent Global Security in bearer form nor a
definitive Bearer Security will be issued if the Company or its agent has reason
to know that such certificate is false. Until so exchanged, the temporary Debt
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities of such series except as
otherwise specified pursuant to Section 3.01 with respect to the payment of any
interest on Debt Securities in temporary form.
If any Payment Date or Missed Payment Date, as the case may be, with respect to a temporary Debt Security in bearer form shall occur prior to the exchange described in the preceding paragraph, any Payment or Missed Payment payable on such Payment Date shall be paid only upon the delivery of a certificate substantially in the form set forth in Exhibit A hereto, dated as of the date the Payment or Missed Payment, as applicable, is made.
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the individual Debt Securities represented thereby pursuant to this Section 3.04 or Section 3.05, the temporary Global Security shall be endorsed by the Registrar to reflect the reduction of the principal amount (or, in the case of any Principal Indexed Security, face amount) evidenced thereby, whereupon the principal amount (or, in the case of any Principal Indexed Security, face amount) of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed.
SECTION 3.05. Registration, Registration of Transfer and Exchange. The Company shall cause to be kept a register (herein sometimes referred to as the "Register") in which, subject to such reasonable regulations as the Company may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. HSBC Bank USA is hereby appointed "Registrar" for the purpose of registering Debt Securities and transfers of Debt Securities as herein provided. Unless and until otherwise determined by the Company, HSBC Bank USA shall act as Registrar and the Register shall be kept at the office of the Registrar at 452 Fifth Avenue, New York, New York 10018-2706 (c/o Issuer Services). Such Register shall be in written form or in any other form capable of being converted into written form within a reasonable period of time. At all reasonable times the Register shall be open for inspection by the Company and its duly authorized agents.
Upon surrender for registration of transfer of any Registered Security of any series at the office or agency of the Company maintained for such purpose (the "Registration Office"), the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of such series, of like tenor and aggregate principal amount (or, in the case of any Principal Indexed Security, face amount), in any authorized denomination or denominations.
At the option of the Holder, Registered Securities of any series (other than a Global Security, except as set forth below) may be exchanged for other Registered Securities of such series of like tenor and aggregate principal amount (or, in the case of any Principal Indexed Security, face amount), in any authorized denomination or denominations, upon surrender of the Registered Securities to be exchanged at the Registration Office. Bearer Securities may not be delivered by the Trustee, the Authenticating Agent or the Registrar in exchange for Registered Securities.
At the option of the Holder, except as otherwise specified
pursuant to Section 3.01(10) or Section 3.01(11), Bearer Securities of any
series may be exchanged for Registered Securities (if the Debt Securities of
such series are issuable as Registered Securities) or (in the case of Bearer
Securities not represented by a Permanent Global Security) Bearer Securities (if
Bearer Securities of such series are issuable in more than one denomination) of
such series of like tenor and aggregate principal amount (or, in the case of any
Principal Indexed Security, face amount), in any authorized denomination or
denominations, upon surrender of the Bearer Securities to be exchanged at the
Registration Office, with all unmatured Coupons and all matured Coupons in
default or unpresented thereto appertaining; provided, however, that delivery of
a Bearer Security shall occur only outside the United States. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default or unpresented, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Registrar in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons
may be waived by the Company and the Registrar if there be furnished to them
such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to any Paying Agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
Section 10.02, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at the Registration Office in exchange for
a Registered Security of the same series after the close of business at the
Registration Office on any Record Date and before the opening of business at the
Registration Office on the relevant Payment Date or Missed Payment Date, such
Bearer Security shall be surrendered without the Coupon relating to such Payment
Date or Missed Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver, the Debt Securities that the Holder making the exchange is entitled to receive.
The Company's express election pursuant to Section 3.01(11)
(if any) shall no longer be effective with respect to the Debt Securities of
such series if at any time (1) (i) the Depositary for the Debt Securities of a
series notifies the Company in writing that it is unwilling or unable to
continue as Depositary for the Debt Securities of such series and a successor
Depositary is not appointed by the Company within 90 days of such notification,
(ii) DTC notifies the Depositary that it is unwilling or unable to continue to
hold interests in the Debt Securities or (iii) DTC is unable to or ceases to be
eligible as a clearing agency registered under the Exchange Act and a successor
to DTC registered under the Exchange Act is not appointed by the Depositary at
the written request of the Company within 90 days or (2) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depositary. In any such event the Company will execute, and the Trustee or the
Authenticating Agent, upon receipt of a Company Order for the authentication and
delivery of definitive Debt Securities of such series, will authenticate and
deliver, definitive Debt Securities of such series or any portion thereof in an
aggregate principal amount (or, in the case of any Principal Indexed Security,
face amount) equal to the aggregate principal amount (or, in the case of any
Principal Indexed Security, face amount) of the Global Security or Debt
Securities representing such series or portion thereof in exchange for such
Global Security or Debt Securities.
The Company may at any time and in its sole discretion determine that Debt Securities of any series issued in whole or in part in the form of one or more Global Securities shall no longer be represented by such Global Security or Global Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Debt Securities of such series, will authenticate and deliver, definitive Debt Securities of such series in an aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) equal to the aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Global Security or Debt Securities representing such series or portion thereof in exchange for such Global Security or Debt Securities.
Unless otherwise specified by the Company pursuant to Section 3.01 with respect to the Debt Securities of any series, the Depositary for such series may surrender a Global Security representing Debt Securities of such series or any portion thereof in exchange in whole or in part for definitive Debt Securities of such series on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee or the Authenticating Agent shall authenticate and deliver such Debt Securities to the Registrar. In turn, the Registrar shall deliver such Debt Securities, without service charge,
(i) to each Person specified by such Depositary a new definitive Debt Security or Debt Securities of such series, of like tenor and in an aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) equal to and in exchange for such Person's beneficial interest in the Global Security, in any authorized denomination or denominations; and
(ii) to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount (or, in the case of any Principal Indexed Security, face amount) of the surrendered Global Security and the aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the definitive Debt Securities delivered to such Persons.
In any exchange provided for in any of the preceding two paragraphs, the Company will execute and the Trustee or the Authenticating Agent will authenticate and deliver Debt Securities (i) in definitive registered form in authorized denominations, if the Debt Securities of such series are issuable as Registered Securities, (ii) in definitive bearer form in authorized denominations with or without Coupons attached, as applicable, if the Debt Securities of such series are issuable as Bearer Securities or (iii) as either Registered Securities or Bearer Securities, if the Debt Securities of such series are issuable in either form; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form set forth in Exhibit A hereto; and provided further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security will be issued if the Company has reason to know that such certificate is false.
Upon the exchange in whole of a Global Security for the definitive Debt Securities represented thereby, such Global Security shall be cancelled by the Trustee or delivered to the Trustee for cancellation. Registered Securities issued in exchange for a Global Security or any portion thereof pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security shall instruct the Trustee and the Registrar. The Registrar shall deliver such Registered Securities to the Persons in whose names such Registered Securities are so registered.
The Registrar shall deliver Bearer Securities issued in exchange for a Global Security or any portion thereof pursuant to this Section to the Persons, and in such authorized denominations, as the Depositary for such Global Security, shall instruct the Registrar; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Global Security unless the Company or its agent shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form set forth in Exhibit A hereto; and provided further that delivery of a Bearer Security shall occur only outside the United States; and provided further that no definitive Bearer Security will be issued if the Company has reason to know that such certificate is false.
Notwithstanding any other provision in this Indenture, unless express provision is made otherwise under Section 3.01 hereof, Global Notes shall, if exchangeable at all, only be exchangeable, in whole or in part, for definitive Debt Securities in registered form.
Interests in a Permanent Global Security may be exchanged for definitive Registered Securities of the same series if the Holder of such Permanent Global Security notifies the Company in writing that the owner of a beneficial interest in such Permanent Global Security has requested in writing to the Holder, in accordance with the instructions of the Holder, that definitive Registered Securities be issued to such owner in respect thereof. In such event the Company will execute, and the Trustee or the Authenticating Agent, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series will authenticate and deliver such definitive Registered Securities. Any such definitive Registered Securities so issued shall be registered in the name of such Person or Persons as the Holder shall instruct the Trustee and the Registrar in writing. Upon the exchange in whole or in part of a Permanent Global Security for definitive Registered Securities in corresponding aggregate principal amount, such Permanent Global Security shall be delivered to the Trustee for cancellation, in the case of an exchange in whole, or reduction, in the case of an exchange in part.
All Debt Securities issued upon any registration of transfer or exchange of Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Debt Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer, registration of transfer or exchange of
Debt Securities, other than exchanges pursuant to Section 3.04, Section 9.06 or
Section 11.07 not involving any transfer.
Neither the Company, the Trustee or the Authenticating Agent, as appropriate, shall be required (i) during the period beginning at the opening of business 15 days before the day on which a notice of redemption of Debt Securities of any series selected for redemption under Section 11.04 is mailed and ending at the close of business on the day of such mailing, to issue, register the transfer of or exchange any Registered Security of such series having the same original issue date and terms as the Debt Securities so selected for redemption or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Registered Security being redeemed in part or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series (if the Debt Securities of such series are issuable as Registered Securities), provided that such Registered Security shall be immediately surrendered for redemption with written instructions for payment consistent with the provisions of this Indenture.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Debt Securities. If (i) any mutilated Debt Security or a Bearer Security with a mutilated Coupon appertaining to it is surrendered to the Trustee or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Debt Security or Coupon, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company or the Trustee that such Debt Security or Coupon has been acquired by a bona fide purchaser, the Company shall execute, and upon its written request the Trustee or the Authenticating Agent shall authenticate and deliver, in exchange for any such mutilated Debt Security or a Bearer Security with a mutilated Coupon appertaining to it or to which a destroyed, lost or stolen Coupon appertains (with all appurtenant Coupons not destroyed, lost or stolen) or in lieu of any such destroyed, lost or stolen Debt Security, a new Debt Security of the same series and of like tenor and aggregate principal amount (or, in the case of any Principal Indexed Security, face amount), bearing a number not contemporaneously outstanding, with Coupons corresponding to the Coupons, if any, appertaining to such destroyed, lost or stolen Debt Security or to the Debt Security to which such destroyed, lost or stolen Coupon appertains; provided, however, that delivery of a Bearer Security shall occur only outside the United States.
In case any such mutilated, destroyed, lost or stolen Debt Security or Coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Debt Security, pay such Debt Security or Coupon; provided, however, that payment of any principal of (and premium, if any, on) or interest on Bearer Securities not represented by a Permanent Global Security shall, except as otherwise provided in Section 10.02, be payable only at an office or agency located outside the United States; and provided further that, with respect to any such Coupon, interest represented thereby (but not any additional amount payable as provided in Section 10.04) shall be payable only upon presentation and surrender of the Bearer Security to which such Coupon appertains.
Upon the issuance of any new Debt Security or Coupon under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security of any series, with its Coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security, or in exchange for a Bearer Security to which a destroyed, lost or stolen Coupon appertains shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt Security and its Coupons, if any, shall be at any time enforceable by anyone, and any such new Debt Security and its Coupons, if any, or the destroyed, lost or stolen Coupon shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Debt Securities of that series and their Coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
SECTION 3.07. Payment; Rights Preserved.
(a) Except as otherwise provided as contemplated by Section 3.01, the Company has no obligation to make any Payments with respect to any series of Debt Securities on any Payment Date for such Payment and failure to make any such payment on any such Payment Date shall not constitute a default by the Company for any purpose.
(b) Any Payments not made by the Company in respect of any series of Debt Securities on any applicable Payment Date, together with any other unpaid payments, will, so long as they remain unpaid, constitute "Missed Payments" and will accumulate until paid. Missed Payments will not bear interest.
(c) Missed Payments, if any, may be paid at the Company's option in whole or in part at any time on not less than 14 days' notice to the Trustee and the Paying Agent, but all Missed Payments in respect of all Debt Securities of a particular series at the time outstanding will (subject to any Solvency Condition) become due and payable in full on whichever is the earliest of:
(1) the date upon which a dividend is next paid on any class of the Company's share capital;
(2) the date fixed for any redemption of such Debt Securities; and
(3) the commencement of the winding up of the Company in England.
(d) The date on which such Missed Payment is due and payable is hereinafter referred to as the "Missed Payment Date."
(e) If the Company gives notice of its intention to pay the whole or part of the Missed Payments on the Debt Securities of any series, the Company will be obliged, subject to any Solvency Condition, to do so upon the expiration of such notice. Where Missed Payments in respect of Debt Securities of any series are paid in part, each part payment will be deemed to be in respect of the full amount of Missed Payments accrued relating to the earliest Payment Date or consecutive payment dates in respect of such Debt Securities.
(f) All payments of principal, premium, Payments and Missed Payments on or with respect to the Debt Securities of any series will be conditional upon satisfaction of any Solvency Condition, and no such payment shall be made and no repurchase of the Debt Securities of any series shall be made by the Company or any of its Subsidiaries (other than a purchase in the ordinary course of a business dealing in securities) except to the extent that the Company would satisfy any Solvency Condition both at the time of, and immediately after, such payment or repurchase as provided by Section 12.01.
(g) Payments and Missed Payments, if any, in respect of any Registered Security that are payable, and are punctually paid or duly provided for, on any Payment Date or Missed Payment Date, as the case may be, shall be paid to the Person in whose name that Debt Security (or one or more Predecessor Debt Securities) is registered at the close of business on the Record Date for such interest. In case a Bearer Security of any series is surrendered in exchange for a Registered Security of such series after the close of business (at an office or agency in a Place of Payment for such series) on any Record Date and before the opening of business (at such office or agency) on the next succeeding Payment Date or Missed Payment Date, as the case may be, or at Maturity, such Bearer Security shall be surrendered without the Coupon relating to such Payment Date or Missed Payment Date, as the case may be, and interest will not be payable on such Payment Date or Missed Payment Date, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture. Any payment of Missed Payments on a Registered Security which is not made on a Payment Date or at Maturity shall be made to the person who is the Holder on the record date established by the Company for such purpose.
(h) Payments or Missed Payments, if any, in respect of any Registered Security or any Permanent Global Security may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Register, or by wire transfer or transfer by any other means to an account designated in writing by such Person to the Paying Agent at least 15 days prior to such payment date or by any other means specified pursuant to Section 3.01.
Payments or Missed Payments, if any, in respect of any Bearer Security with Coupons that are payable and are punctually paid or duly provided for on any Payment Date or Missed Payment Date, as the case may be, shall be paid to the Holder of the relevant Coupon on such Payment Date or Missed Payment Date, as applicable, upon surrender of such Coupon on such Payment Date or Missed Payment Date, as applicable, at the Place of Payment outside the United States specified pursuant to Section 3.01.
Payments or Missed Payments, if any, in respect of any Bearer Security without Coupons that are payable and are punctually paid or duly provided for on any Payment Date or Missed Payment Date shall be paid to the Holder of the Bearer Security upon presentation of such Bearer Security and notation thereon on such Payment Date or Missed Payment Date, as applicable, at the Place of Payment outside the United States specified pursuant to Section 3.01.
(i) Subject to the foregoing provisions of this Section, each Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security shall carry the rights to Payments and Missed Payments, if any, accrued and unpaid, and to accrue, that were carried by such other Debt Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee,
the Registrar and the Paying Agent and any agent of the Company, the Trustee,
the Registrar or the Paying Agent may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of any principal, premium or (subject to
Section 3.07), Payment or Missed Payment, if any, in respect of such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee, the Registrar, the
Paying Agent nor any agent of the Company, the Registrar, the Paying Agent or
the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee shall treat the bearer of any Bearer Security and the bearer of any Coupon as the absolute owner of such Bearer Security or Coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or Coupon be overdue, and neither the Company or the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in any Global Security or Permanent Global Security or for maintaining, supervising or reviewing any records relating to such payments or beneficial ownership interests.
SECTION 3.09. Cancellation. Unless otherwise specified pursuant to Section 3.01 above with respect to the Debt Securities of any series, all Debt Securities and Coupons surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be promptly cancelled and delivered to the Trustee. The Company may at any time deliver to the Trustee for cancellation any Debt Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Debt Securities so delivered shall be promptly cancelled by the Trustee. No Debt Securities shall be authenticated in lieu of or in exchange for any Debt Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Debt Securities and Coupons held by the Trustee shall be destroyed and certification of their destruction delivered to the Company unless by a Company Order the Company shall direct that the cancelled Debt Securities or Coupons be returned to it.
SECTION 3.10. Computation of Payments. Except as otherwise specified as contemplated by Section 3.01 with respect to the Debt Securities of any series, any Payments on the Debt Securities of each series, which is not denominated in Euro, shall be computed on the basis of a 360-day year of twelve 30-day months. Payments on Debt Securities of each series denominated in Euro will be computed on the basis of the actual number of days in the calculation period divided by 365 (or, if any portion of that calculation period falls in a leap year, the sum of (a) the actual number of days in that portion of the calculation period falling in a leap year, divided by 366 and (b) the actual number of days in that portion of the calculation period falling in a non-leap year, divided by 365).
SECTION 3.11. Payment in Currencies. (a) Payment of any principal (and premium, if any), Payments or Missed Payments in respect of the Debt Securities of any series shall be made in the currency or currencies specified pursuant to Section 3.01 with respect to the Debt Securities of such series; provided that, if so specified pursuant to Section 3.01, the Holder of such series may elect to receive such payment in Dollars or in any other currency designated for such purpose pursuant to Section 3.01. A Holder may make such election by delivering to the Paying Agent (with a copy to the Trustee) a written notice thereof, substantially in the form attached hereto as Exhibit B or in such other form as may be acceptable to the Paying Agent, not later than the close of business on the Record Date immediately preceding the applicable date on which such payment is due and payable or the fifteenth day immediately preceding the Maturity, if any, of any principal, as the case may be. Such election shall remain in effect with respect to such Holder until such Holder delivers to the Paying Agent (with a copy to the Trustee) a written notice substantially in the form attached hereto as Exhibit B or in such other form as may be acceptable to the Paying Agent specifying a change in the currency in which such payment is to be made; provided that any such notice must be delivered to the Paying Agent (with a copy to the Trustee) not later than the close of business on the Record Date immediately preceding the next Payment Date or Missed Payment, as the case may be, or the fifteenth day immediately preceding the Maturity, if any, of any principal, as the case may be, in order to be effective for the payment to be made thereon; and provided further that no such change in currency may be made with respect to payments to be made on any Registered Security with respect to which notice of redemption has been given by the Company pursuant to Article Eleven.
(b) Except as otherwise specified pursuant to Section 3.01 with respect to the Debt Securities of any series, the Paying Agent shall deliver to the Company, the Trustee and the Exchange Rate Agent, if any, not later than the fourth Business Day after the Record Date with respect to a Payment Date or Missed Payment or the tenth day immediately preceding the Maturity, if any, of any principal, as the case may be, with respect to Debt Securities of any series, a written notice specifying, in the currency or currencies in which such Debt Securities are denominated, the aggregate amount of any principal (and premium, if any), Payments and Missed Payments, if any, on such Debt Securities to be paid on such payment date. If payments on any such Debt Securities are designated to be made in a currency other than the currency in which such Debt Securities are denominated, or if at least one Holder of a Registered Security has made the election referred to in Subsection (a) above with respect to such Debt Securities, then the written notice referred to in the preceding sentence shall also specify, in each currency in which payment with respect to such Debt Securities is to be made pursuant to said Subsection (a), the amount of any principal, premium, Payments and Missed Payments, if any, in respect of such Debt Securities to be paid in such currency on such payment date; provided that for purposes of such written notice, the Trustee shall be entitled to rely on any exchange rate information provided to it in writing or via electronic communication such as telex or facsimile by the Exchange Rate Agent.
(c) The Exchange Rate Agent shall deliver, not later than the sixth Business Day following each Record Date or the fifth day immediately preceding the Maturity, if any, of any principal, as the case may be, to the Trustee, the Paying Agent and the Company an Exchange Rate Agent's Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Except as otherwise specified pursuant to Section 3.01 with respect to the Debt Securities of any series, the amount receivable by Holders of Registered Securities of any series who have elected payment as provided in Subsection (a) above in a currency other than the currency in which such Registered Securities are denominated shall be determined by the Exchange Rate Agent on the basis of the applicable Exchange Rate set forth in the applicable Exchange Rate Agent's Certificate.
(d) Except as otherwise specified pursuant to Section 3.01 with respect to the Debt Securities of any series, if the Foreign Currency in which Registered Securities of any series are denominated ceases to be used both by the government of the country issuing such Foreign Currency and for the settlement of transactions by public institutions of or within the international banking community, then, with respect to each date for the payment of any principal (and premium, if any), Payment or Missed Payment, if any, in respect of such Debt Securities and any Coupons appertaining thereto occurring after the final date on which such Foreign Currency was so used, all payments in respect of such Debt Securities and any Coupons appertaining thereto shall be made in Dollars; provided that payment to a Holder of such a Registered Security shall be made in a different Foreign Currency if that Holder has elected or elects payment in such Foreign Currency as provided for by Subsection (a) above. If payment is to be made in Dollars to Holders of any such Debt Securities or Coupons pursuant to the provisions of the preceding sentence, then the amount to be paid in Dollars on a payment date by the Company to the Paying Agent (who shall promptly notify the Trustee) and by the Paying Agent (who shall promptly notify the Trustee) to such Holders shall be determined by the Paying Agent (who shall promptly notify the Trustee of such determinations) as of the Record Date with respect to such Payment Date or Missed Payment Date or the fifteenth day immediately preceding the Maturity, if any, of any principal, as the case may be, and shall be equal to the sum obtained by converting the specified Foreign Currency into Dollars at the Exchange Rate on the last such Record Date on which such Foreign Currency was so used in either such capacity.
(e) All decisions and determinations of the Paying Agent
regarding conversion of any Foreign Currency into Dollars pursuant to Subsection
(d) above or as specified pursuant to Section 3.01 with respect to the Debt
Securities of any series shall, in the absence of manifest error, be conclusive
for all purposes and irrevocably binding upon the Company and all Holders of the
Debt Securities. If a Foreign Currency in which payment in respect of Debt
Securities of any series may be made, pursuant to Subsection (a) above, ceases
to be used both by the government of the country issuing such currency and for
the settlement of transactions by public institutions of or within the
international banking community, the Company after learning thereof will give
notice thereof to the Trustee and the Paying Agent immediately (and the Paying
Agent promptly thereafter will give notice to the Holders of such Debt
Securities in the manner provided in Section 1.06) specifying the last date on
which such Foreign Currency was used for the payment of any principal, premium
or interest in respect of such Debt Securities. The Trustee and the Paying Agent
shall be fully justified and protected in relying conclusively and acting upon
the information so received by it from the Company and shall not otherwise have
any duty or obligation to determine such information independently.
SECTION 3.12. Certification by a Person Entitled to Delivery of a Bearer Security Whenever any provision of this Indenture or a Debt Security contemplates that certification be given by a Person entitled to delivery of a Bearer Security, such certification shall be provided substantially in the form of Exhibit A hereto as such form may be modified pursuant to a Board Resolution, with only such changes as shall be approved by the Company.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge. If so specified pursuant to Section 3.01, this Indenture, with respect to the Debt Securities of any series payable only in Dollars (if all series of Debt Securities issued under this Indenture are not to be affected) shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of such Debt Securities herein expressly provided for) and the Trustee, at the expense of the Company, shall execute proper instruments, in a form satisfactory to the Company and the Trustee, acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered and all Coupons appertaining thereto (other
than (i) Coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Section 3.05, (ii) Debt Securities and Coupons of such series that have
been destroyed, lost or stolen and that have been replaced or paid as
provided in Section 3.06, (iii) Coupons appertaining to Bearer
Securities of such series called for redemption and maturing after the
relevant Redemption Date, surrender of which has been waived as
provided in Section 11.06 and (iv) Debt Securities and Coupons of such
series for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
10.03) have been delivered to the Trustee for cancellation; or
(B) all such Debt Securities of such series not theretofore delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(iii) are to be converted for Dollar Preference Shares or Conversion Securities or exchanged for Exchange Securities and notice of conversion or exchange of such Debt Securities for Dollar Preference Shares or Conversion Securities or Exchange Securities pursuant to Article Thirteen shall have been given,
and the Company, in the case of (i) or (ii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose (i) Dollars in an amount, (ii) U.S. Government Obligations that through payment of interest and principal in respect thereof in accordance with their terms will provide, not later than the due date of any payment in an amount or (iii) any combination of (i) and (ii) maturing, in the case of (i) above as to principal (and premium, if any) and any accrued Payments or Missed Payments, if any, and in case of (ii) above, as to any accrued Payments and Missed Payments, if any, in such amounts sufficient to pay and discharge the entire indebtedness on such Debt Securities and Coupons not theretofore delivered to the Trustee for cancellation, in the case of (i) above for principal (and premium, if any) and accrued Payments and Missed Payments, if any, and in the case of (ii) above, as to any accrued Payments and Missed Payments, if any, to the date of such deposit (in the case of Debt Securities which have become due and payable) or the Redemption Date or the Event Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company in respect of the Debt Securities of such series; and
(3) the Company has delivered to the Trustee an Officer's Certificate and, if the Trustee so requests, an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07 and, if money shall have been deposited with the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive. The Company's rights and obligations under this Section 4.01 shall be subject to the consent of the Financial Services Authority, if required.
SECTION 4.02. Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Debt Securities, the Coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Persons entitled thereto, of any principal (and premium, if any) and accrued but unpaid Payments, if any, and Missed Payments, if any, for which payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default. Unless otherwise specified pursuant to Section 3.01 "Event of Default", wherever used herein with respect to Debt Securities of any series, means any one of the following events:
(i) the making or entry of any order by an English court which is not successfully appealed within 30 days after the date such order was made or entered for the winding up of the Company, or
(ii) the valid adoption by the shareholders of the Company, of any effective resolution for the winding up of the Company
in either case other than in connection with a scheme of amalgamation or reconstruction not involving bankruptcy or insolvency.
SECTION 5.02. Acceleration; Rescission and Annulment. If an Event of Default with respect to Debt Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee may, or if so requested by the Holders of not less than 25% in principal amount of the Outstanding Debt Securities of that series, shall declare the principal amount (or such other amount as is specified pursuant to Section 3.01) together with the accrued but unpaid Payments and Missed Payments, if any, or, in the case of Indexed Securities, the amount specified pursuant to Section 3.01, of all of the Debt Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount), such accrued but unpaid Payments and such Missed Payments shall become immediately due and payable (hereinafter referred to as an "Acceleration").
At any time after such a declaration of acceleration with respect to Debt Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Debt Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(A) the principal of (and premium, if any, on) any Debt Securities of such series which have become due and payable otherwise than by such declaration of acceleration and any Payments or Missed Payments, if any, thereon at the rate or rates prescribed therefor in such Debt Securities; and
(B) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
(2) all Events of Default with respect to the Debt Securities of such series have been remedied.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 5.03. Defaults; Collection of Indebtedness and Suits for Enforcement by Trustee. Unless otherwise provided and contemplated pursuant to Section 3.01 with respect to the Debt Securities of any series, "Default", wherever used herein, means any one of the following events (whatever the reason for such Default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) the Company fails to pay any Missed Payments on or prior to any date on which a dividend is paid on any class of the Company's share capital and such failure continues for 30 Business Days; or
(2) the Company fails to pay all or any part of the principal of (or premium, if any, on) or any accrued but unpaid Payments and any Missed Payments on any Redemption for such Debt Securities and such failure continues for seven Business Days.
For the purposes of the definition of Default, a payment shall
not be deemed to be due on any date on which any Solvency Condition is not
satisfied. However, in the event that the Company fails to make the payments
specified in (1) and (2) above, and at such time any Solvency Condition is not
satisfied, the Trustee may, to enforce the obligations of the Company, institute
proceedings in England (but not elsewhere) for the winding up of the Company,
provided that the Trustee may not, upon the occurrence of a Default, unless an
Event of Default has occurred and is continuing, cause an Acceleration under
Section 5.02 of any of the Outstanding Debt Securities.
Notwithstanding the foregoing, failure to make any payment in respect of the Debt Securities shall not be a Default in respect of such Debt Securities if such payment is withheld or refused, (i) in order to comply with any fiscal or other law or regulation or with the order of any court of competent jurisdiction, in each case applicable to such payment or (ii) in case of doubt as to the validity or applicability of any such law, regulation or order, in accordance with advice given with respect to validity or applicability of such law, regulation or order at any time during said period of 30 Business Days (in the case of payments under Clause (1) above) or seven Business Days (in the case of payments under Clause (2) above) by independent legal advisers acceptable to the Trustee, provided, however, that the Trustee may by notice to the Company require the Company to take such action (including but not limited to proceedings for a declaration by a court of competent jurisdiction) as the Trustee may be advised in an opinion of counsel, upon which opinion the Trustee may conclusively rely, is appropriate and reasonable in the circumstances to resolve such doubt, in which case the Company shall forthwith take and expeditiously proceed with such action and shall be bound by any final resolution of the doubt resulting therefrom. If any such resolution determines that the relevant payment can be made without violating any applicable law, regulation or order then the provisions of the preceding sentence shall cease to have effect and such payment shall become due and payable on the expiration of 30 Business Days (in the case of payments under Clause (1) above) or seven Business Days (in the case of payments under Clause (2) above) after the Trustee gives written notice to the Company informing it of such resolution.
SECTION 5.04. Trustee May File Proofs of Claim. In case of any judicial proceeding relative to the Company or any other obligor upon the Debt Securities of a particular series or any related Coupons or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether any principal in respect of such Debt Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any overdue principal, Payments or Missed Payments, if any) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of any principal (and premium, if any), Payments and Missed Payments, if any, owing and unpaid with respect to the Debt Securities of such series and any appurtenant Coupons and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Debt Securities or Coupons or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
The provisions of this Section 5.04 are subject to the provisions of Article Twelve.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Debt Securities or Coupons. All rights of action and claims under this Indenture or the Debt Securities or Coupons may be prosecuted and enforced by the Trustee without the possession of any of the Debt Securities or Coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name, as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Debt Securities and Coupons in respect of which such judgment has been recovered.
SECTION 5.06 Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall, subject to the provisions of Article Twelve, be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of any principal, premium, Payments or Missed Payments, if any, upon presentation of the Debt Securities or any Coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for any principal of (and premium, if any, on) Payments or Missed Payments, if any, on the series of Debt Securities and any appurtenant Coupons, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such series of Debt Securities and any appurtenant Coupons for any principal (and premium, if any), Payments or Missed Payments, respectively; and
THIRD: The balance, if any, to the Company or other Person or Persons entitled thereto.
SECTION 5.07. Limitation on Suits. No Holder of any Debt Security of any series and any appurtenant Coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default or Default with respect to the Debt Securities of such series;
(2) the Holders of not less than a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of such series have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been received by the Trustee during such 60-day period from the Holders of a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Any Principal, Premium and Payments. Notwithstanding any other provision in this Indenture, the Holder of any Debt Security or Coupon shall have the absolute and unconditional right to receive payment of any principal of (and premium, if any, on) or (subject to Section 3.07) Payments or Missed Payments, if any, on such Debt Security or Coupon when due and payable in accordance with the provisions of the Indenture and as expressed in such Debt Security or Coupon (or, in the case of redemption or exchange, on the Redemption Date or the Event Date, as the case may be) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided in Section 6.01, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Debt Security or Coupon to exercise any right or remedy accruing upon any Event of Default or Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders of Debt Securities. The Holders of a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Debt Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture;
(2) subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceeding so directed would be unjustly prejudicial to the Holders of Debt Securities of such series not joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the Trustee, which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of any series may, on behalf of the Holders of all the Debt Securities of any such series and any related Coupons, waive any past event of default or any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of any principal of (or premium, if any, on) or Payments (or Missed Payments, if any) on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof that under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Debt Security affected thereby.
Upon any such waiver, such default shall cease to exist, and any Event of Default or Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Debt Security or Coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of any principal of (or premium, if any, on) or Payments or Missed Payments, if any, on any Debt Security or the payment of any Coupon on or after the dates upon which such Payments or Missed Payments become due and payable pursuant to the terms hereof or the terms expressed in such Debt Security or Coupon(or, in the case of redemption or Exchange or Conversion, on or after the Redemption Date or the Event Date, as the case may be).
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
(a) With respect to Debt Securities of any series, except during the continuance of an Event of Default or Default with respect to the Debt Securities of such series,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default or Default with respect to Debt Securities of any series or any appurtenant Coupons has occurred and is continuing, the Trustee shall, with respect to the Debt Securities of such series or any appurtenant Coupons, as the case may be, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Debt Securities of any series in good faith in accordance with the direction of the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of such series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(e) Notwithstanding any other provision of this Indenture, under no circumstances shall the Trustee be deemed to have fiduciary obligations with respect to any Person including, without limitation, Ordinary Creditors, other than Holders of Debt Securities, as and to the extent provided in this Indenture.
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults. Within 90 days after the occurrence of any Event of Default or Default hereunder with respect to Debt Securities of any series the Trustee shall give to Holders of Debt Securities of such series in the manner set forth in Section 1.06 notice of each such Event of Default or Default hereunder known to the Trustee, unless in the case of notice regarding an Event of Default or Default such Event of Default or Default shall have been cured or waived; provided, that the Trustee shall be protected in withholding notice of a Default or an Event of Default if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee reasonably determines that the withholding of such notice is in the interest of the Holders of Debt Securities of such series.
SECTION 6.03. Certain Rights of Trustee. Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon, whether in original or facsimile form, any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, Coupon or other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Debt Securities of such series or any related Coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, Coupon, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Debt Securities and this Indenture;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; and
(j) the Trustee may request that the Company deliver an Officer's Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer's Certificate may be signed by any person authorized to sign an Officer's Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
SECTION 6.04. Not Responsible for Recitals or Issuance of Debt Securities. The recitals contained herein and in the Debt Securities, except the Trustee's certificates of authentication, and in any Coupons shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Debt Securities of any series or of any Coupons. The Trustee shall not be accountable for the use or application by the Company or any Paying Agent of any Debt Securities or the proceeds thereof.
SECTION 6.05. May Hold Debt Securities or Coupons. The Trustee, any Paying Agent, the Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Debt Securities and Coupons, and, subject to Section 6.08 and Section 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law, except that the Trustee shall segregate moneys, funds and accounts held by the Trustee in one currency or currency unit from any moneys, funds or accounts in any other currencies or currency units. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as the parties shall agree from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any loss, liability, claim, damage or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust or performance of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section, the Trustee shall have a claim prior to the Debt Securities and any Coupons upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of any principal (and premium, if any), Payments or Missed Payments in respect of any Debt Securities or Coupons.
The accrued obligations of the Company under this Section 6.07 to compensate and indemnify the Trustee for expenses, losses, liabilities, disbursements and advances shall survive the termination, satisfaction and discharge of the Indenture, including any termination under any applicable bankruptcy or similar law or the removal or resignation of the Trustee.
SECTION 6.08. Disqualification; Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder that shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of a Federal, State, District of Columbia or foreign supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor. No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 6.11.
The Trustee may resign at any time with respect to the Debt Securities of one or more series by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities of such series.
The Trustee may be removed at any time with respect to the Debt Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of such series, delivered to the Trustee and the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 6.08 with respect to the Debt Securities of any series after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or a decree or order for relief by a court having jurisdiction in the premises shall have been entered in respect of the Trustee in an involuntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law; or a decree or order by a court having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Trustee or of its property or affairs, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator (or other similar official) of the Trustee or its property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Debt Securities or (ii) subject to Section 5.14, any such Holder may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee for the Debt Securities of such series and the appointment of a successor Trustee.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Debt Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Debt Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Debt Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Debt Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Debt Securities of any series shall be appointed by Act of the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Debt Securities of such series, and, to that extent, supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Debt Securities of any series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner hereinafter provided, the Trustee or any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, subject to Section 5.14, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Debt Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Debt Securities of any series and each appointment of a successor Trustee with respect to the Debt Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Register and, if Debt Securities of such series are issuable as Bearer Securities, by publishing notice of such event once in an Authorized Newspaper in each Place of Payment located outside the United States. Each notice shall include the name of the successor Trustee with respect to the Debt Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. In the case of an appointment hereunder of a successor Trustee with respect to all Debt Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Debt Securities of one or more (but not all) series, the Company, the retiring Trustee upon payment of its charges and each successor Trustee with respect to the Debt Securities of the relevant series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer to and vest in each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Debt Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Debt Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in this Section.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Debt Securities shall have been authenticated but not delivered by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Debt Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Debt Securities. In case any Debt Securities shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Debt Securities, in either its own name or that of such predecessor Trustee, with the full force and effect that this Indenture provides for the certificate of authentication of the Trustee.
SECTION 6.13. Preferential Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Debt Securities of a series), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent. Upon a Company Request, the Trustee may appoint an authenticating agent with respect to the Debt Securities of one or more series (the "Authenticating Agent"), for such period as the Company shall elect, which will be authorized to act as the Trustee's agent on the Trustee's behalf to authenticate and deliver the Debt Securities of such series. Debt Securities of such series authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee. Wherever reference is made in this Indenture to the authentication and delivery of Debt Securities of any series by the Trustee or to the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by the Authenticating Agent for such series or the certificate of authentication executed on behalf of such Trustee by such Authenticating Agent, as the case may be. Such Authenticating Agent shall at all times meet the eligibility requirements for the Trustee set forth in Section 6.09.
Any corporation into which any Authenticating Agent may be merged or converted, or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to all series of Debt Securities for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Company, the Trustee or such Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign with respect to the Debt Securities of one or more series by giving written notice of resignation to the Trustee and the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of such termination to such Authenticating Agent and the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section with respect to the Debt Securities of one or more series, the Trustee shall upon Company Request appoint a successor Authenticating Agent, and the Company shall provide notice of such appointment to all Holders of Debt Securities of such series in the manner and to the extent provided in Section 1.06. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent. The Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its services.
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee with respect to the Debt Securities of each series for which the Trustee acts as Trustee:
(a) at least semi-annually, not more than 15 days after each Record Date in respect of the Debt Securities of such series (or on 30 June and 31 December of each year with respect to the Debt Securities of any series for which there are no Record Dates or for which there are different Record Dates for Debt Securities of such series issued on different dates), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Registered Securities as of such Record Date or June 15 or December 16, as the case may be, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Registrar, no such list need be furnished.
SECTION 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Registered Securities contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished. The Trustee shall preserve for at least two years from the date of receipt of the names and addresses of Holders of any Debt Securities filed with the Trustee, to the extent so filed.
(b) If three or more Holders (hereinafter referred to as "applicants") apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Debt Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Debt Securities of a particular series (in which case the applicants must hold Debt Securities of such series) or with all Holders of Debt Securities with respect to their rights under this Indenture or under the Debt Securities and such application is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders of Debt Securities of such series or of all Debt Securities, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Debt Securities or Coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 7.02(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 7.02(b).
SECTION 7.03. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto; provided, however that any reports required by Section 313(a) of the Trust Indenture Act shall be transmitted by mail to Holders within 60 days after 15 May of each year commencing with the year following the first issuance of Debt Securities.
(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Debt Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any series of Debt Securities is listed on any stock exchange.
SECTION 7.04. Reports by Company. The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be filed with the Trustee within 15 days after the same is so filed with the Commission. The Trustee shall make all such reports available for inspection by Holders at its Corporate Trust Office.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms. The Company may, without the consent of Holders of any Debt Securities of any series outstanding under this Indenture, consolidate or amalgamate with or merge into any other corporation or convey or sell or transfer or lease its properties and assets substantially as an entirety to any Person, provided that:
(1) the corporation formed by such consolidation or amalgamation or into which the Company is merged or the Person which acquires by conveyance or transfer the properties and assets of the Company, substantially as an entirety (i) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee the due and punctual payment of any principal, premium, Payments and Missed Payments, if any, (including all Additional Amounts, if any, payable pursuant to Section 10.04) in respect of all the Debt Securities and any related Coupons and the performance of every covenant of this Indenture on the part of the Company to be performed or observed and (ii) the definition of "Taxing Jurisdiction" shall be amended, if applicable, to replace the United Kingdom with the jurisdiction in which such successor Person is resident for tax purposes;
(2) immediately after giving effect to such transaction and treating any indebtedness that becomes an obligation of the Company, as a result of such transaction as having been incurred by the Company at the time of such transaction, no Event of Default or Default, and no event that, after notice or lapse of time, or both, would become an Event of Default or a Default, shall have occurred and be continuing; and
(3) the Company and the successor Person, have delivered to the Trustee an Officer's Certificate and, if so requested by the Trustee, an Opinion of Counsel stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
SECTION 8.02. Successor Person Substituted. Upon any consolidation or amalgamation with or merger into any other corporation, or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 8.01, the successor corporation formed by such consolidation or amalgamation or into which the Company is merged or the successor Person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation or successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Debt Securities and any Coupons.
SECTION 8.03. Assumption of Obligations. With respect to the Debt Securities of any series, a holding company of the Company or any subsidiary of the Company (a "successor entity") may assume the obligations of the Company (or any corporation which shall have previously assumed the obligations of the Company) for the due and punctual payment of the principal of (and premium, if any, on), Payments and Missed Payments, if any, on and any additional amount required to be paid in accordance with the provisions of the Indenture or the Debt Securities in respect of the Debt Securities and the performance of each covenant of the Indenture and the Debt Securities on the part of the Company to be performed or observed provided, that
(1) the successor entity shall expressly assume such obligations by an amendment to the Indenture, executed by the Company and such successor entity, if applicable, and delivered to the Trustee, in form satisfactory to the Trustee, and the Company shall, by amendment to the Indenture, unconditionally guarantee all of the obligations of such successor entity under the Debt Securities of such series and the Indenture as so modified by such amendment (provided, however, that, for the purposes of the Company's obligation to pay to Holders all Additional Amounts, if any, payable pursuant to Section 10.04 in respect of the Debt Securities and any related Coupons, references to such successor entity's country of organization will be added to references to the United Kingdom);
(2) such successor entity shall confirm in such amendment to
the Indenture that such successor entity will pay to the
Holders all Additional Amounts, if any, payable pursuant to
Section 10.04 in respect of all the Debt Securities and any
related Coupons (provided, however, that for these purposes
such successor entity's country of organization will be
substituted for the references to the United Kingdom); and
(3) immediately after giving effect to such assumption of obligations, no Event of Default or Default and no event which, after notice or lapse of time or both, would become an Event of Default or Default, shall have occurred and be continuing.
Upon any such assumption, the successor entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with respect to any such Debt Securities with the same effect as if such successor entity had been named as the Company in this Indenture, and the Company or any legal and valid successor corporation which shall theretofore have become such in the manner prescribed herein, shall be released from all liability as obligor upon any such Debt Securities except as provided in Clause (1) above.
Notwithstanding the foregoing, the determination of whether any Solvency Condition has been satisfied in accordance with Section 12.01 shall, notwithstanding such assumption, continue to be made with reference to the Company, unless otherwise required by applicable law or regulation.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders of Debt Securities or Coupons, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by such successor Person of the covenants of the Company herein and in the Debt Securities contained;
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Debt Securities or Coupons (and, if such covenants are to be for the benefit of less than all series of Debt Securities or Coupons, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company;
(3) to change or eliminate any restrictions on the payment of any principal of (or premium, if any, on) or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities or to permit or facilitate the issuance of Debt Securities in uncertificated or book-entry form; provided that no such action shall adversely affect the interests of the Holders of Debt Securities of any series or any related Coupons in any material respect; or
(4) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall be effective only with respect to any series of Debt Securities created subsequent to the execution of such supplemental indenture; or
(5) to establish the form or terms of Debt Securities of any series and any related Coupons as permitted by Section 2.01 and Section 3.01;
(6) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Debt Securities of one or more series and to add to, change or eliminate any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or
(7) to secure the Debt Securities;
(8) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provision with respect to matters or questions arising under this Indenture that shall not be inconsistent with any provision of this Indenture; provided that such action shall not adversely affect the interests of the Holders of Debt Securities of any series or any related Coupons in any material respect; or
(9) to add, to change or to eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendment to the Trust Indenture Act.
SECTION 9.02. Supplemental Indentures With Consent of Holders. With the consent of the Holders of not less than a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights under this Indenture of the Holders of such Debt Securities and any related Coupons; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Debt Security or Coupon affected thereby,
(1) change the terms of any Debt Security to include a stated
maturity date of the principal or change the Payment Dates or
dates for payment of Additional Amounts payable in respect of
any Debt Security, or reduce the principal amount (or, in the
case of any Principal Indexed Security, face amount) thereof
or reduce the Payments or any Missed Payments payable on any
Debt Security, or the rate of interest on any of the
foregoing, thereon or any premium payable upon redemption
thereof, or additional amounts payable thereon, or change the
manner in which the amount of any payment of any principal,
premium, Payment or Missed Payment, if any, in respect of any
Indexed Security is determined, or change any obligation of
the Company to pay any Additional Amount pursuant to Section
10.04 (except as contemplated by Section 8.01(1) and permitted
by Section 9.01(1), or change any Place of Payment, or change
the coin or currency in which any principal (and premium, if
any,) or any Payment or Missed Payment, if any, or the rate of
interest on any of the foregoing, or impair the right to
institute suit for the enforcement of any such payment when
due and payable on or with respect to any Debt Security;
(2) reduce the percentage of the aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Outstanding Debt Securities affected thereby, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture;
(3) modify any of the provisions of this Section 9.02, Section 5.13 or Section 10.06, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Debt Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder of a Debt Security with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 10.06;
(4) change the terms and conditions of the Dollar Preference Shares or Conversion Securities into which such Debt Securities may be converted;
(5) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in
Section 10.02; or
(6) change in any manner adverse to the interests of the Holders of Debt Securities of any series, the subordination provisions of the Debt Securities of such series or the terms and conditions of the obligations of the Company in respect of the due and punctual payment of the principal, premium, if any, Payments, any Missed Payments or the rate of interest on any of the foregoing on the Debt Securities of such series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one or more particular series of Debt Securities, or that modifies the rights of the Holders of Debt Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of any other series.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel from the Company stating that the execution and delivery of such supplemental indenture has been duly authorized by all necessary corporate action, such supplemental indenture has been duly executed and delivered and, assuming that the Trustee has satisfied those legal requirements that are applicable to it to the extent necessary to make such supplemental indenture enforceable against it, is a legal, valid, binding and enforceable agreement of the Company subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered hereunder and of any Coupons appertaining thereto shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act and Financial Services Authority Requirements. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act. The Company's rights and obligations under this Article Nine shall be subject to the consent of the Financial Services Authority, if required.
SECTION 9.06. Reference in Debt Securities to Supplemental Indentures. Debt Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in a form satisfactory to the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Debt Securities of any series and any appurtenant Coupons so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee or the Authenticating Agent in exchange for Outstanding Debt Securities of such series and any appurtenant Coupons.
ARTICLE X
COVENANTS
SECTION 10.01 Payment of Any Principal, Premium, Payments and
Missed Payments. The Company covenants and agrees for the benefit of each series
of Debt Securities and any appurtenant Coupons that it will duly and punctually
pay any principal of (and premium, if any, on) and Payments and Missed Payments,
if any, on such Debt Securities and any appurtenant Coupons in accordance with
the terms of such Debt Securities, any appurtenant Coupons and this Indenture.
Any Payments and Missed Payments, if any, due in respect of Bearer Securities on
or before Maturity, other than in respect of Bearer Securities of a series in
global form and other than Additional Amounts, if any, payable as provided in
Section 10.04 in respect of any principal of (and premium, if any, on) and
interest on such a Security, shall be payable only upon presentation and
surrender of the relevant Coupons for such payment installments as are evidenced
thereby.
No payment of any principal, premium or Payments or Missed Payments, if any, in respect of Bearer Securities (other than a Permanent Global Security) shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that payment of any principal of (and premium, if any, on) or Payments or Missed Payments, if any, (including Additional Amounts payable in respect thereof) on any such Bearer Security may be made in Dollars at the specified office of the Paying Agent, if (but only if) payment of the full amount of such principal, premium, Payments or Missed Payments, if any, or Additional Amounts at all offices outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.
SECTION 10.02. Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, The City of New York and in each Place of Payment for any series of Debt Securities an office or agency where Debt Securities of such series (but, except as otherwise provided below, unless such Place of Payment is located outside the United States, not Bearer Securities other than Permanent Global Debt Securities) may be presented or surrendered for payment (and in any event, at least one such office or agency outside the United Kingdom), where Debt Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Debt Securities of such series and this Indenture may be served. If Debt Securities of a series are issuable as Bearer Securities, the Company will maintain, subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for such series that is located outside the United States where Debt Securities of such series and the related Coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Debt Securities of such series pursuant to Section 10.04); provided, however, that if the Debt Securities of such series are listed on the London Stock Exchange plc or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent in London or Luxembourg or any other required city located outside the United States, as the case may be, so long as the Debt Securities of such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee except that Bearer Securities of that series and the related Coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Bearer Securities of that series pursuant to Section 10.04) at the place specified for the purpose pursuant to Section 3.01, and the Company hereby appoints HSBC Bank USA as Paying Agent and its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of such Place of Payment) where the
Debt Securities of one or more series and any appurtenant Coupons (subject to
Section 10.01)may be presented or surrendered for any or all of such purposes,
and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for any
series of Debt Securities for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency. The Company will at all times
maintain at least one Paying Agent that is located outside the United Kingdom
for each series of Debt Securities.
The Company undertakes that if the conclusions of the ECOFIN Council meeting of 26-27 November 2000 are implemented, to ensure that it maintains a paying agent in a Member State of the European Union that will not be obliged to withhold or deduct tax pursuant to the European Union Directive on the taxation of savings proposed at the ECOFIN Council meeting of 26-27 November 2000 if there is at least one Member State which does not require a paying agent to withhold or deduct tax pursuant to such Directive.
SECTION 10.03. Money for Debt Securities Payments to be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Debt Securities, it will, on or before each due date of any principal of (and premium, if any, on) or Payments or Missed Payments, if any, on any Debt Securities of such series and any appurtenant Coupons, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay any principal, premium, Payments or Missed Payments, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to any series of Debt Securities, the Company will, on or prior to each due date of any principal of (and premium, if any, on), Payment or Missed Payment, if any, on any Debt Securities of such series and any appurtenant Coupons, deposit with a Paying Agent a sum sufficient to pay any principal, premium, Payment or Missed Payment, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to any such principal, premium, Payment or Missed Payment, if any, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any series of Debt Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of any principal (and premium, if any), Payment or Missed Payment, if any, in respect of Debt Securities of such series and any appurtenant Coupons in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Debt Securities of such series or any appurtenant Coupons) in the making of any payment of any principal of (and premium, if any, on), Payment or Missed Payment, if any, on the Debt Securities of such series or any appurtenant Coupons; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of any principal of (and premium, if any, on), Payment or Missed Payment, if any, on any Debt Security of any series or any appurtenant Coupons and remaining unclaimed for two years after any such principal, premium, Payment or Missed Payment, if any, has become due and payable shall be paid to the Company, as the case may be, on Company Request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Debt Security or any appurtenant Coupons shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper of general circulation in the Borough of Manhattan, The City of New York, and each Place of Payment, or mailed to each such Holder, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company. Debt Securities of any series or any appurtenant Coupons will be void if not presented for payment of principal and premium, if any, within 10 years of such principal and premium, if any, becoming due and payable or presented for payment of Payments and Missed Payments, if any, within five years of such payment becoming due and payable.
SECTION 10.04. Payment of Additional Amounts. Unless otherwise specified as contemplated by Section 3.01, with respect to Debt Securities, Payments and Missed Payments, if any, on any such Debt Securities will be paid by the Company, without deduction or withholding for, or on account of, any and all present and future income, stamp and other taxes, levies, imposts, duties, charges, fees, deductions or withholdings now or hereafter imposed, levied, collected, withheld or assessed by or on behalf of the United Kingdom or any political subdivision or any taxing authority thereof or therein having the power to tax (the "Taxing Jurisdiction"), unless such deduction or withholding is required by law. If deduction or withholding of any such taxes, levies, imposts, duties, charges, fees, deductions or withholdings shall at any time be required by the Taxing Jurisdiction, the Company will pay such additional amounts of, or in respect of, the principal amount of, (and premium, if any, on), Payments and Missed Payments, if any, on such Debt Securities ("Additional Amounts") as may be necessary in order that the net amounts paid to the Holders of such Debt Securites, after such deduction or withholding, shall equal the respective amounts of principal, premium, Payments and Missed Payments, if any, which would have been payable in respect of such Debt Securities had no such deduction or withholding been required, provided that the foregoing will not apply to any such tax, levy, impost, duty, charge, fee, deduction or withholding which would not have been payable or due but for the fact that (i) the Holder of the Debt Security or the owner of a beneficial interest therein is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or physically present in, the Taxing Jurisdiction or otherwise has some connection or former connection with the Taxing Jurisdiction other than the holding or ownership of a Debt Security, or the collection of any payment of (or in respect of) principal (premium, if any, on), Payments and Missed Payments, if any, or of or the enforcement of, any Debt Security, (ii) the relevant Debt Security or Coupon or other means of payment of Payments or Missed Payments, if any, in respect of Debt Securities is presented for payment in the United Kingdom, (iii) the relevant Debt Security or other means of payment of Payments or Missed Payments, if any, in respect of Debt Securities is presented for payment more than 30 days after the date payment became due or was provided for, whichever is later, except to the extent that the Holder would have been entitled to such Additional Amount on presenting the same for payment at the close of such 30 day period, (iv) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed on a Payment or Missed Payment, if any, to an individual and is required to be made pursuant to any European Union directive on the taxation of savings income relating to the proposal for a directive on the taxation of savings income published by the ECOFIN Council on 13 December 2001 or otherewise implementing the conclusions of the ECOFIN Council meeting of 26-27 November, 2000, or any law implementing or complying with, or introduced in order to conform to, such a directive; (v) presentation for payment of the relevant Debt Securities was made to a paying agent who was required to make (or pass through) such deduction or withholding and presentation for payment could have been made to a paying agent who was not required to make (or pass through) such deduction or withholding; (vi) there was a failure to comply by the Holder or the beneficial owner of the Debt Securities or the beneficial owner of any payment on such Debt Securities with a request of the Company addressed to the Holder or the beneficial owner, including a request of the Company related to a claim for relief under any applicable double tax treaty (x) to provide information concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or the beneficial owner or (y) to make any declaration or other similar claim to satisfy any information or reporting requirement, if the information or declaration is required or imposed by a statute, treaty, regulation, ruling or administrative practice of the Taxing Jurisdiction as a precondition to exemption from withholding or deduction of all or part of the tax, duty, assessment or other governmental charge; (vii) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed in respect of any estate, inheritance, gift, sale, transfer, personal property, wealth or similar tax, duty, assessment or other governmental charge; or (vii) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed in respect of any combination of the above items.
Whenever in this Indenture there is mentioned, in any context, the payment of any principal of (and premium, if any, on), Payments or Missed Payments, if any, on any Debt Security of any series or the payment of any related Coupon or the net proceeds received on the sale or exchange of any Debt Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section, and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made.
SECTION 10.05. Officer's Certificate as to Compliance with Indenture and Default. The Company will deliver to the Trustee, on or before a date not more than six months after the end of each fiscal year of the Company (which on the date hereof is 31 December) ending after the date hereof, a certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company's compliance with all conditions and covenants under the Indenture, whether an Event of Default or Default has occurred, and, if an Event of Default or Default has occurred, specifying all such defaults and the nature thereof of which they may have knowledge. For purposes of this paragraph such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
The Company will deliver written notice to the Trustee promptly after any officer of the Company has knowledge of the occurrence of any event that with the giving of notice or the lapse of time or both would become an Event of Default or Default.
SECTION 10.06. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any covenant or condition set forth in Section 10.02 and Section 10.04 with respect to the Debt Securities of any series if, before the time for such compliance, the Holders of at least a majority in aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) of the Debt Securities of such series at the time Outstanding shall, by Act of such Holders and on behalf of all Holders of Debt Securities of that Series, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF DEBT SECURITIES
SECTION 11.01. Applicability of Article. Debt Securities of any series shall be redeemable in accordance with their terms and, except as otherwise specified as contemplated by Section 3.01 with respect to the Debt Securities of such series, in accordance with this Article. The Company's rights and obligations under this Article Eleven shall be subject to the consent of the Financial Services Authority, if required.
SECTION 11.02 Election to Redeem; Notice to Trustee. Unless otherwise provided under Section 3.01 with respect to any series of Debt Securities, the election of the Company to redeem any Debt Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Debt Securities of any series, the Company shall, not less than 45, or more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the aggregate principal amount (or, in the case of Principal Indexed Securities, face amount) of the Debt Securities of such series to be redeemed. If the Debt Securities of such series may be originally issued from time to time with varying terms, the Company shall also notify the Trustee of the particular terms or designation of the Debt Securities of such series to be redeemed. In the case of any redemption of Debt Securities prior to the expiration of any restriction on such redemption provided in the terms of such Debt Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer's Certificate evidencing compliance with such restriction.
SECTION 11.03 Selection by Trustee of Debt Securities to be Redeemed. Except as otherwise specified as contemplated by Section 3.01 for Debt Securities of any series, if less than all the Debt Securities of any series are to be redeemed, the particular Debt Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from among the Outstanding Debt Securities of such series (or, in the case of Debt Securities of a series that may be originally issued from time to time with varying terms, from among the Outstanding Debt Securities of such series having the same original issue date and terms) not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for such Debt Securities or any integral multiple thereof that is also an authorized denomination) of the principal amount (or, in the case of Principal Indexed Securities, face amount) of Registered or Bearer Securities (if issued in more than one authorized denomination) of such series of a denomination larger than the minimum authorized denomination for such Debt Securities.
The Trustee shall promptly notify the Company in writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial redemption, the principal amount (or, in the case of Principal Indexed Securities, face amount) thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Debt Securities shall relate, in the case of any Debt Security redeemed or to be redeemed only in part, to the portion of the principal amount (or, in the case of Principal Indexed Securities, face amount) of such Debt Security that has been or is to be redeemed.
SECTION 11.04. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 1.06 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, or the manner in which the Redemption Price is to be determined;
(3) if less than all Outstanding Debt Securities of any series are to be redeemed, the identification and the principal amount (or, in the case of Principal Indexed Securities, face amount)) of the particular Debt Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will, subject to any Solvency Condition, become due and payable in respect of each such Debt Security to be redeemed, and that any Payments thereon shall cease to accrue on and after said date;
(5) the Place or Places of Payment where such Debt Securities, together in the case of Bearer Securities with all Coupons, if any, appertaining thereto maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price; and
(6) the CUSIP number or numbers, the Common Code, or the ISIN, if any, with respect to such Debt Securities.
A notice of redemption published as contemplated by Section 11.04 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company.
SECTION 11.05 Deposit of Redemption Price. On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be a Payment Date or Missed Payment Date) any Missed Payments and the Coupons for any such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below shall be void for the period following the Redemption Date; provided, however, Debt Securities whose Payment Date is on or prior to the Redemption Date shall be payable to the Holders of such Debt Securities, or one or more Predecessor Debt Securities, registered as such on the relevant Record Dates according to their terms and the provisions of Section 3.05. The obligation of the Company to redeem Debt Securities of a series on a Redemption Date shall be subject to any Solvency Condition but unpaid Payments on, all the Debt Securities or portions thereof that are to be redeemed on that date.
SECTION 11.06 Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price and Missed
Payments, if any) no further Payments or Missed Payments shall be payable and
the Coupons for any such Payments and Missed Payments appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Debt Security for redemption in accordance with
said notice, such Debt Security shall be paid by the Company at the Redemption
Price, together with any accrued but unpaid Payments and Missed Payments, if
any, existing at the Redemption Date; provided, however, that installments of
any Payments and Missed Payments on Bearer Securities whose Payment Date is on
or prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an office or agency located outside
the United States, except as otherwise provided in Section 10.02); and provided
further that installments of any Payment or Missed Payment on Registered
Securities whose Payment Date or Missed Payment Date, as the case may be, is on
or prior to the Redemption Date shall be payable to the Holders of such Debt
Securities, or one or more Predecessor Debt Securities, registered as such on
the relevant Record Dates according to their terms and the provisions of Section
3.05. The obligation of the Company to redeem Debt Securities of a series on a
Redemption Date shall be subject to any Solvency Condition.
If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant Coupons maturing after the Redemption Date, such Bearer Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company, the Trustee and the Paying Agent if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any Paying Agent any such missing Coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an office or agency located outside of the United States, except as otherwise provided in Section 10.02.
If any Debt Security called for redemption shall not be so paid upon surrender thereof for redemption, any principal (and premium, if any) in respect thereof shall, until paid, continue to accrue Payments from and after the Redemption Date at the rate prescribed therefor in such Debt Security.
SECTION 11.07. Debt Securities Redeemed in Part. Any Registered Security that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company, the Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee, duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee or Authenticating Agent shall authenticate and deliver to the Holder of the Registered Security, without service charge, a new Registered Security or Registered Securities of the same series, of like tenor and in an aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) equal to and in exchange for the unredeemed portion of the principal of the Registered Security so surrendered in such authorized denomination or denominations as are requested by such Holder; and any Bearer Security that is to be redeemed only in part shall be surrendered at an office or agency of the Company located outside the United States, except as otherwise provided in Section 10.02, and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Bearer Security outside the United States, without service charge, a new Bearer Security or Bearer Securities of the same series (or a new Registered Security or Registered Securities of the same series if the Debt Securities of such series are also issuable as Registered Securities), of like tenor and in an aggregate principal amount (or, in the case of any Principal Indexed Security, face amount) equal to and in exchange for the unredeemed portion of the principal of the Bearer Security so surrendered in such authorized denomination or denominations as are requested by such Holder; except if a Global Security is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, a new Global Security of like tenor in a denomination equal to and in exchange for the unredeemed portion of the principal amount (or, in the case of any Principal Indexed Security, face amount) of the Global Security so surrendered.
SECTION 11.08. Optional Redemption in the Event of Change in Tax Treatment. In addition to any redemption provisions that may be specified pursuant to Section 3.01 for the Debt Securities of any series and subject to satisfaction of any Solvency Condition, the Debt Securities (i) are redeemable, as a whole but not in part, at the option of the Company, on not less than 30 nor more than 60 days' notice, at any time at a redemption price equal to 100% of the principal amount, together with accrued but unpaid Payments and Missed Payments, if any, in respect of such Debt Securities to the date fixed for redemption, (or, in the case of Principal Indexed Securities, the amount specified pursuant to Section 3.01), and any Debt Securities convertible into Dollar Preference Shares or Conversion Securities of the Company may, at the option of the Company, be converted as a whole, if at any time, the Company shall determine that (a) in making payment under such Debt Securities in respect of principal (or premium, if any), Payment or Missed Payment, it has or will or would become obligated to pay Additional Amounts, provided such obligation to pay Additional Amounts results from a change in or amendment to the laws of the Taxing Jurisdiction, or any change in the official application or interpretation of such laws (including a decision of any court or tribunal), or any change in, or in the official application or interpretation of, or execution of, or amendment to, any treaty or treaties affecting taxation to which the United Kingdom is a party, which change, amendment or execution becomes effective on or after the date of original issuance of the Debt Securities of such series or (b) the payment of any Payments and Missed Payments in respect of such Debt Securities has become or will or would be treated as a "distribution" within the meaning of Section 209 of the Income and Corporation Taxes Act 1988 of the United Kingdom (or any statutory modification or re-enactment thereof for the time being), as a result of any change in or amendment to the laws of the Taxing Jurisdiction, or any change in the official application or interpretation of such laws including a decision of any court, which change or amendment becomes effective on or after the date of original issuance of the Debt Securities of such series; provided, however, that in the case of (a) above, no notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obliged to pay Additional Amounts were a payment in respect of such Debt Securities then due.
ARTICLE XII
SUBORDINATION OF DEBT SECURITIES
SECTION 12.01. Debt Securities Subordinate to Certain Creditors.
(a) The claims against the Company of the Holders of Debt Securities of each series rank pari passu with the Undated Subordinated Debt Other pari passu Claims. The Company covenants and agrees, and each Holder of Debt Securities of each series, by his acceptance thereof, likewise covenants and agrees, that (i) the Debt Securities of such series shall constitute unsecured obligations of the Company without any preference among themselves, and (ii) in the event of the winding up of the Company, to the extent and in the manner hereinafter set forth in this Article Twelve, the indebtedness represented by any of the Debt Securities of such series and the payment of the principal of (and premium, if any, on), Payments and Missed Payments, if any, on each and all of the Debt Securities of such series is hereby expressly made subordinate and subject in right of payment to the prior payment in full of all claims of the Ordinary Creditors. Notwithstanding any other provision of this Indenture or the Debt Securities, except with the consent of the Financial Services Authority, (i) no early repayment may be made in respect of the Debt Securities and (ii) neither the Company nor any of its subsidiaries may purchase any of the Debt Securities.
To the fullest extent permitted by law, the Holders of Debt Securities and the Trustee, in respect of any claims of such Holders to payment of any principal, premium, Payments or Missed Payments, if any, in respect of any Debt Securities, by their acceptance of the Debt Securities thereof will be deemed to have waived any right of set-off or counterclaim that such Holders or, as the case may be, the Trustee in such respect, might otherwise have (whether in the liquidation of the Company or at any other time). The Holders of Debt Securities, by their acceptance of the Debt Securities, covenant and agree that if, on the winding up of the Company, they receive any sums by way of set-off, they will hold such sums on trust for the Ordinary Creditors and will, without undue delay, pay such sums to the liquidator to apply in payment of claims of Ordinary Creditors.
(b) Where it is specified pursuant to Section 3.01 that
payment of principal, premium (if any), Payments or Missed Payments, if any, on
Debt Securities of a particular series is to be subject to a condition of
solvency then the obligation of the Company to make any payment of principal,
premium (if any), Payments or Missed Payments, if any, in respect of Debt
Securities of such series and any Coupons relating thereto, whether prior or
subsequent to the commencement of a winding up of the Company in England, is
conditional upon the Company being able to make such payment and remain Solvent
immediately thereafter (hereinafter referred to as a "Solvency Condition"). No
payment in respect of any Debt Securities of a series or the Coupons relating
thereto subject to a Solvency Condition which under this Section or any other
Section hereof would otherwise fall due for payment while the Company is unable
to satisfy the Solvency Condition will fall so due. Such payment will become due
for payment only if and when and to the extent that the Company could make such
payment and satisfy the Solvency Condition (whether or not it was in winding up)
immediately thereafter. Prior to the commencement of the winding up of the
Company in England interest will continue to accrue on any Debt Securities of
such series payment of which is suspended under this clause subject to and in
accordance with the provisions of these presents.
(c) The Company shall whenever requested by the Trustee and will in the event the Company is in winding up deliver to the Trustee an Officer's Certificate attaching a report in writing from the Auditors or, if the Company is in winding up, the liquidator of the Company upon which report the Trustee may conclusively rely as to whether or not the Company, on the basis of such information as the Company may at the request of the Auditors make available to the Auditors or, if the Company is in winding up, on the basis of the information available to the liquidator, is or would in any specified circumstances be Solvent for the purposes of Section 12.01 (b) and in the absence of proven error such report shall be treated and accepted by the Company, the Trustee and the Holders of the relevant Debt Securities and any Coupons relating thereto as correct and sufficient evidence of such fact. In the absence of any such evidence to the contrary, it shall be assumed for the purposes hereof (unless the contrary is proved) that the Company is and will after any payment hereunder be Solvent for such purposes.
The Trustee is under no obligation to request such a certificate or report and the Trustee will not incur any liability as a result of not so requesting such a certificate or report. No Holder of Debt Securities or of Coupons relating thereto shall be entitled to proceed against the Trustee or the Auditors in connection with the exercise or non-exercise by them of their powers, duties and discretions under this paragraph.
(d) In the event of a winding up in England of the Company (liquidation) there shall be payable in respect of the Debt Securities and Coupons, if any, that are not subject to a Solvency Condition (in lieu of any other payment, but subject to paragraphs (a) and (b) above), any amounts receivable by the Trustee from the liquidator in such winding up in respect of Debt Securities of a particular series or Coupons appertaining to Debt Securities of such series shall be received by the Trustee upon trust to apply the same as follows:
first, in payment or satisfaction of the costs, charges, expenses and liabilities incurred by the Trustee including any unpaid remuneration in or about the execution of the trusts of these presents (in each case, to the extent payable by the Company under Section 6.07);
secondly, subject to Section 12.05, in payment of claims of the Ordinary Creditors outstanding at the commencement of or arising by virtue of the winding up of the Company (excluding interest accruing after the date of the commencement of the winding up) to the extent that such claims shall be admitted in the winding up and shall not be satisfied out of the other resources of the Company; and
thirdly, in payment of any claims in respect of the Debt Securities of such series and Coupons appertaining to Debt Securities of such series, such amounts (if any) as would have been payable in respect thereof as if, on the day immediately prior to the commencement of the winding up and thereafter, the Holders of the Debt Securities and the Holders of the Coupons were the holders of a class of preference shares in the capital of the Company having a preferential right to a return of assets in such winding up over the holders of all other classes of shares in the capital of the Company for the time being issued and outstanding, on the assumption that such first mentioned preference shares were entitled (to the exclusion of any other rights or privileges) to receive as a return of capital in such winding up an amount equal to the principal amount of the Debt Securities of such series then Outstanding together with any premium and interest accrued to the date of repayment at the rate provided for in the Debt Securities of such series and any Missed Payments.
(e) In the event of a winding up in England of the Company (liquidation) there shall be payable in respect of the Debt Securities and Coupons, if any, that are subject to a Solvency Condition (in lieu of any other payment, but subject to paragraphs (a) and (b) above), any amounts receivable by the Trustee from the liquidator in such winding up in respect of the Debt Securities of such series and appurtenant Coupons shall be received by the Trustee upon trust to apply the same as follows:
first, in payment or satisfaction of the costs, charges, expenses and liabilities incurred by the Trustee including any unpaid remuneration in or about the execution of the trusts of these presents (in each case, to the extent payable by the Company under Section 6.07);
secondly, the Trustee shall hold all remaining amounts in trust for 30 days and (A) if on or prior to such thirtieth day the Trustee is provided with an Officer's Certificate attaching a report pursuant to Clause (c) above which states that the Company could not make or could not have made payment of such amounts and still be Solvent (disregarding, for the purposes of this paragraph (e) only, clause (a) of the definition of Solvent) in return to the Company of the whole or such part of such amounts (after any necessary deductions pursuant to paragraph (i) of this Clause) as caused the Company not to be then so Solvent as set forth in such Officer's Certificate (disregarding as aforesaid), or (B) if on or prior to such date no report pursuant to Clause (c) above is so provided the Trustee shall return the whole of such amounts to the Company (and any money so returned shall then be treated for the purposes of the Company's obligations hereunder as if it had not been paid by the Company and its original payment shall be deemed not to have discharged any of the obligations of the Company hereunder);
thirdly, such amounts (if any) as would have been payable in respect thereof as if, on the day immediately prior to the commencement of the winding up and thereafter, the Holders of the Debt Securities and the Holders of the Coupons were the holders of a class of preference shares in the capital of the Company having a preferential right to a return of assets in such winding up over the holders of all other classes of shares in the capital of the Company for the time being issued and outstanding, on the assumption that such first mentioned preference shares were entitled (to the exclusion of any other rights or privileges) to receive as a return of capital in such winding up an amount equal to the principal amount of the Debt Securities of such series then Outstanding together with any premium and interest accrued to the date of repayment at the rate provided for in the Debt Securities of such series and any Missed Payments; provided, however, that if the Debt Securities or the Coupons, if any, are subject to a Solvency Condition pursuant to Section 3.01, no claim in respect of the Debt Securities or the Coupons, if any, of the series shall be provable or capable of being established against the Company in such winding up unless and until and except to the extent that the Company could make payment of principal, premium, if any, Payments and Missed Payments, if any, in respect of the Debt Securities or the Coupons, if any, of the series in whole or in part and any Solvency Condition would be satisfied immediately thereafter; and
fourthly, in payment of the balance (if any) to the Company.
(f) The provisions of this Section shall apply only to payment of principal, premium, if any, Payments and Missed Payments, if any, in respect of any such Debt Securities of any series and nothing herein shall affect or prejudice the payment of the costs, charges, expenses, liabilities or remuneration of the Trustee or the rights and remedies of the Trustee in respect thereof.
(g) The provisions of this Section shall not be applicable to any amounts of principal, premium, if any, Payments and Missed Payments, if any, in respect of the Debt Securities of any series for the payment of which funds have been deposited in trust with the Trustee or have been set aside by the Company in trust in accordance with the provisions of this Indenture; provided, however, that at the time of such deposit or setting aside, and immediately thereafter, the foregoing provisions of this Section are complied with.
(h) Notwithstanding anything contained in these presents to the contrary, the foregoing provisions of this Section shall be construed and have effect so that in the event of the liquidation of the Company the obligations of the Company under the Debt Securities of a particular series and under the Subordinated Indebtedness (other than Subordinated Indebtedness in relation to which the obligations of the Company under that particular series of Debt Securities rank junior or senior) will rank pari passu and ratably inter se so far as concerns subordination to claims of depositors and other creditors of the Company (except any creditors whose claims may rank junior to claims under the Debt Securities of that particular series).
(i) The perpetuity period applicable to the trusts contained in this Section shall be eighty years from the date hereof.
(j) In a winding up in England of the Company, subject to the satisfaction in full of all claims of Ordinary Creditors admitted in such winding up, the Holders and the Trustee shall be subrogated (pro rata with the holders (or the trustees for such holders) of Undated Subordinated Debt Other pari passu Claims, on the basis of the respective amounts paid over, directly or through the liquidator of the Company, to or for the benefit of the Ordinary Creditors) to the rights of the Ordinary Creditors to receive payments or distributions of cash, property or securities of the Company applicable to claims of Ordinary Creditors until the principal, premium, Payments and Missed Payments, in respect of the Debt Securities of each series shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the Ordinary Creditors of cash, property or securities of the Company to which the Holders or the Trustee would be entitled except for the provisions of this Section, and no payment over by the Holder or the Trustee, directly or through the liquidator of the Company, to or for the benefit of the Ordinary Creditors pursuant to the provisions of this Section, shall, as between the Company, its creditors other than the Ordinary Creditors, and the Holders and the Trustee be deemed to be a payment by the Company to or on account of Ordinary Creditors.
(k) With respect to Debt Securities or Coupons, if any, to which a Solvency Condition applies pursuant to Section 3.01, if the Trustee or any Holder of Debt Securities or Coupons, if any, receives any payment of moneys in respect of the Debt Securities or Coupons, if any, and the Trustee has not, prior to receiving such payment, been provided with a report in compliance with paragraph (b) above, payment of such moneys or, as the case may be, such part thereof as would or did cause the Company to fail to satisfy any Solvency Condition both at the time of and immediately after such payment shall be deemed null and void and such payment or, as the case may be, such part thereof shall be held by the Trustee or such Holder, as the case may be, upon trust to be applied in payment to the Company. Each Holder of Debt Securities or Coupons, if any, of any series, by the acceptance thereof, agrees to and shall be bound by the provisions of this Section and irrevocably authorizes the liquidator of the Company in connection with a winding up of the Company to perform on behalf of such Holder or holder the subordination trust set forth in this paragraph (i) in the event that such Holder shall assert a claim for payment under any of the Debt Securities or Coupons, if any, directly to the liquidator of the Company and not through the Trustee, and to file any claims and take all such action, in the name of such Holder or otherwise, as the liquidator of the Company may determine to be necessary or appropriate for the enforcement of the provisions of this paragraph (k), and each Holder will also execute and deliver such further instruments confirming such authorization and such powers of attorney, proofs of claim, assignments of claim and other instruments as may be requested by the liquidator of the Company or as required by law in order to enable the liquidator of the Company to give effect to or enforce any and all claims upon or in respect of the payment of principal (and premium, if any) and Payments and Missed Payments, if any, in respect of the Debt Securities and Coupons, if any.
SECTION 12.02. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Debt Securities on the one hand and the Ordinary Creditors on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Debt Securities is intended to or shall (i) impair, as among the Company, its creditors other than Ordinary Creditors and the Holders of the Debt Securities, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Debt Securities the principal of (and premium, if any, on), Payments and Missed Payments, if any, on the Debt Securities as and when the same shall become due and payable in accordance with their terms; (ii) affect the relative rights against the Company of the Holders of the Debt Securities and creditors of the Company other than the Ordinary Creditors; or (iii) prevent the Trustee or the Holder of any Debt Securities from exercising all remedies otherwise provided by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the Ordinary Creditors to receive sums otherwise payable or deliverable to the Trustee or such Holders.
SECTION 12.03. Trustee to Effectuate Subordination. Each Holder of a Debt Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination of the Debt Securities provided in this Article and appoints the Trustee his attorney for any and all such purposes.
SECTION 12.04. No Waiver of Subordination Provisions. No right of any present or future Ordinary Creditors, if any, to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such Ordinary Creditor or by any non-compliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such Ordinary Creditor may have or be otherwise charged with.
SECTION 12.05. Notice to Trustee. The Company shall give prompt written notice to the Trustee of any fact known to it, which would prohibit the making of any payment to or by the Trustee in respect of the Debt Securities. Notwithstanding the provisions of this Article or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Debt Securities, unless and until the Trustee shall have received written notice thereof from the Company or an Ordinary Creditor, as the case may be, or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, shall be entitled in all respects to assume that no such facts exist; provided, however, that if a Responsible Officer of the Trustee shall not have received the notice provided for in this Section at least three Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of or any premium, Payments or Missed Payments, if any, on any Debt Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it less than three Business Days prior to such date.
The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be an Ordinary Creditor (or a trustee or agent on behalf of such Ordinary Creditor) to establish that such notice has been given by an Ordinary Creditor (or a trustee or agent on behalf of such Ordinary Creditor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as an Ordinary Creditor to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of claims held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment which it may be required to make for the benefit of such Person pursuant to the terms of the Indenture pending judicial determination as to the right of such Person to receive such payment.
SECTION 12.06. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Section 6.01, and the Holders of the Debt Securities shall be entitled to rely on (i) any order or decree entered by any court in England and Wales in which any winding up, insolvency, bankruptcy, receivership, liquidation or dissolution of the Company or similar case or proceeding, including a proceeding for the suspension of payments under English law, is pending, or (ii) a certificate of the applicable liquidator, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee and such Holders, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the Ordinary Creditors and other claims against the Company the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 12.07. Trustee Not Fiduciary for Holders of Claims. The Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this article and no implied covenants or obligations shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the Ordinary Creditors and shall not be liable to any such Ordinary Creditors if it shall in good faith mistakenly pay over or distribute to Holders of Debt Securities or to the Company or to any other Person cash, property or securities to which any such Ordinary Creditors shall be entitled by virtue of this Article or otherwise.
SECTION 12.08. Rights of Trustee as Holder of Claims; Preservation of Trustee's Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any claims of Ordinary Creditors which may at any time be held by it, to the same extent as any other Ordinary Creditors and nothing in this Indenture shall deprive the Trustee of any of its rights as such Ordinary Creditor.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07.
SECTION 12.09. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that Section 12.08 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 12.10. Conversion Not Deemed Payment.. For the purposes of this Article Twelve only, delivery of Dollar Preference Shares or Conversion Securities upon conversion of Debt Securities or Exchange Securities upon exchange of Debt Securities, in each case in accordance with Article Thirteen, if applicable to a particular series of Debt Securities, shall not be deemed to constitute a payment or distribution on account of the principal of Debt Securities or on account of the purchase of other acquisition of Debt Securities. Nothing contained in this Article or elsewhere in this Indenture or in the Debt Securities is intended to or shall impair, as among the Company, its creditors and the Holders of the Debt Securities, the right, which if applicable to a particular series of Debt Securities is absolute and unconditional, of the Company to convert the Debt Securities in accordance with Article Thirteen.
SECTION 12.11. Governing Law. The provisions of this Article Twelve shall be governed by and construed in accordance with the laws of England and Wales.
SECTION 12.12 Third Party Rights No person who is not a party to this Indenture shall have any rights under the Contracts (Rights of Third Parties) Act of 1999 (the "Contracts Act") to enforce any term of Article 12 of this Indenture; provided that this does not affect any right or remedy of a third party which exists or is available apart from the Contracts Act, including under the laws of the State of New York or the federal laws of the United States.
ARTICLE XIII
EXCHANGE OR CONVERSION OF DEBT SECURITIES
SECTION 13.01. Applicability of Article. Subject to the
following sentence, if specified pursuant to Section 3.01 for the Debt
Securities of any series, the Debt Securities of such series shall be
exchangeable or convertible in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Debt Securities of such
series) in accordance with this Article. Unless otherwise specified pursuant to
Section 3.01 for the Debt Securities of any series, the Debt Securities of each
series shall be convertible, at the Company's option, in whole but not in part,
into Dollar Preference Shares on any Payment Date or any Missed Payment Date or
any Redemption Date, in each case in accordance with this Article.
SECTION 13.02. Election to Exchange or Convert; Notice to Trustee. An election of the Company to exchange or convert Debt Securities, as the case may be, shall be evidenced by an Officer's Certificate furnished to the Trustee stating that the Company is entitled to effect such Exchange or Conversion and setting forth a statement of facts demonstrating the same.
SECTION 13.03. Notice of Exchange or Conversion. Not less than 45 days nor more than 90 days prior to the Event Date, the Company shall notify the Trustee in writing of its election to exchange or convert, as the case may be, the Debt Securities and of the series of Debt Securities to which such election relates. The Trustee shall within five Business Days after receipt of such notice from the Company, cause notice of such election to be mailed to each Holder of Debt Securities to be exchanged or converted, as the case may be.
All notices of Exchange or Conversion shall state:
(1) the Event Date;
(2) if less than all of the series of the Debt Securities are to be exchanged or converted, as the case may be, the identification of the particular Debt Securities to be exchanged or converted, as the case may be, including relevant CUSIP numbers and other securities identification numbers, which Debt Securities shall be selected by the Trustee from the Outstanding Debt Securities of such series not previously called for conversion, by such method as the Trustee shall deem fair and appropriate;
(3) that on the Event Date, the Debt Security to be exchanged
or converted, as the case may be, will cease to exist except,
if applicable, to evidence the Exchange Securities or
Conversion Securities, as the case may be, as described in
Section 13.07 below on and after such Event Date;
(4) the place or places where such Debt Securities are to be surrendered for exchange or conversion, as the case may be; and
(5) the form in which the Company will issue the Dollar Preference Shares, Conversion Securities or Exchange Securities, as the case may be.
Notice of any Exchange or Conversion of Debt Securities at the election of the Company shall be given by the Company or, at the Company's Request, by the Trustee in the name of and at the expense of the Company.
SECTION 13.04. Deposit of Payments. On or prior to any Event Date, the Company shall deposit with the Trustee or with a Paying Agent an amount of money sufficient to pay accrued Payments to the Event Date plus Missed Payments, if any, accumulated to the Event Date on the Debt Securities to be exchanged or converted on the Event Date.
SECTION 13.05. Surrender of Debt Securities. Any Debt Security which is to be exchanged or converted shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 10.02 not less than 10 days prior to the Event Date (with due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney-in-fact duly authorized in writing) accompanied by written notice specifying the name or names, if any with address or addresses, in which the Exchange Securities or Conversion Securities, as the case may be, are to be issued, or in the case of Dollar Preference Shares, to whom the Dollar Preference Shares are to be registered and issued. The Trustee will inform the Company of all such notices and the Company will, if applicable, direct the ADR Depositary accordingly under the terms of the ADR Deposit Agreement. Each of the Holders hereby constitutes and appoints the Trustee his or her attorney-in-fact, with power of substitution, in his or her name, to sign any and all instruments or certificates required for the Exchange or the Conversion, as the case may be. Debt Securities surrendered for Exchange or Conversion shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee for delivery by it to the Company or, if delivered to the Trustee, shall be delivered by it to the Company.
SECTION 13.06. Issuance of Dollar Preference Shares or Exchange Securities or Conversion Securities. On or prior to the Event Date with respect to Debt Securities surrendered for Exchange or Conversion, the Company shall (a) in the case of Dollar Preference Shares, unless the Company shall have notified the Trustee otherwise in accordance with Section 13.03, deliver or procure the delivery of a single share warrant to bearer to the ADR Depositary evidencing all of the Dollar Preference Shares in respect of which such Undated Subordinated Debt Securities are to be converted in accordance with the provisions of this Article Thirteen or (b) in the case of Conversion Securities or Exchange Securities, deliver or procure the delivery of the Conversion Securities or Exchange Securities, as the case may be, to the Trustee or to such other Person as may be specified pursuant to Section 3.01. Such Exchange or Conversion shall be deemed to have been made immediately prior to the close of business in New York City on the Event Date.
In the event that the Company shall have notified the Trustee in accordance with Section 13.03 that it will not deliver or procure the delivery of a single share warrant to bearer in exchange for the Debt Securities of a series surrendered for conversion as provided in Section 11.05, the Company shall, on or prior to the Event Date, with respect to definitive Debt Securities, deliver or procure the delivery of individual certificates representing the Dollar Preference Shares or Conversion Securities (or evidencing the rights to receive such Dollar Preference Shares or Conversion Securities) or such series for which such Debt Securities are to be converted in accordance with the provisions of this Article Thirteen, (a) in the case of Dollar Preference Shares or Conversion Securities in registered form to and registered in the names of the Holders of such Debt Securities in definitive form as they appear on the Register or, at the direction of such Holder, in the name of the ADR Custodian for the account and benefit of the ADR Depositary who will issue ADRs evidencing ADSs representing the Dollar Preference Shares or Conversion Securities to such Holder and (b) in the case of Dollar Preference Shares or Conversion Securities evidenced by share warrants to bearer, to the bearer of the bearer Debt Security in definitive form or, at the direction of such bearer, to the ADR Custodian for the account and benefit of the ADR Depositary who will issue ADRs evidencing ADSs representing Dollar Preference Shares to such Holder.
Any Conversion or Exchange shall be deemed to have been made immediately prior to the close of business in New York City on the Event Date.
SECTION 13.07. Effect of Exchange or Conversion. Notice of Exchange or Conversion having been given as aforesaid, the Debt Securities so to be exchanged or converted, as the case may be, shall, on the Event Date cease to exist for any purpose, other than to evidence the Exchange Securities or the Conversion Securities as described below. Upon surrender of any such Debt Security for Exchange or Conversion, as the case may be, in accordance with said notice and this Article Thirteen, accrued Payments on such Debt Security to the Event Date plus Missed Payments, if any, accumulated to the Event Date shall be paid by the Company to the Holder surrendering such Debt Security. Such payment shall be a condition to the Conversion or Exchange and no Conversion or Exchange shall occur unless such payments are made.
On and after the Event Date, each Debt Security to be exchanged or converted, as the case may be, until surrendered for such Exchange or Conversion shall be deemed to evidence the right to receive the Exchange Securities or the Conversion Securities or Dollar Preference Shares with a liquidation preference equivalent to the principal amount of such Debt Security upon such surrender. On and after the Event Date, until a Holder of a Debt Security has surrendered such Debt Security for Exchange or Conversion, as the case may be, such Holder shall be entitled to receive any dividends, payments or other distributions in respect of such Dollar Preference Shares or Exchange Securities or Conversion Securities and shall have the same rights with respect to, and shall be deemed to be the Holder of, such Dollar Preference Shares or Exchange Securities or Conversion Securities as if it had so surrendered such Debt Security for Exchange or Conversion on the Event Date; provided, however, that no dividends, payments or other distributions in respect of such Exchange Securities or Conversion Securities shall be paid or distributed to such Holder any earlier than the date on which such Debt Security is surrendered for Exchange or Conversion.
SECTION 13.08 Validity of Dollar Preference Shares or Conversion Securities or Exchange Securities. The Company shall take all corporate and other action which may be necessary in order that it may validly and legally issue Dollar Preference Shares, Conversions Debt Securities or Exchange Securities upon each Conversion or Exchange of the Outstanding Debt Securities. The Company covenants that the Dollar Preference Shares, Conversion Securities or Exchange Securities will when issued upon such Exchange or Conversion be duly authorized and validly issued, fully paid and not subject to calls for further funds.
SECTION 13.09. Legal and Regulatory Compliance. Notwithstanding any provision of this Indenture to the contrary, the right of the Company to cause any Exchange or Conversion of the Debt Securities of any series for Exchange Securities or Conversion Securities or Dollar Preference Share on any proposed Event Date shall be subject to the fulfillment of the following conditions with respect to such Debt Securities of such series, and the Company represents and warrants for the benefit of the holders of Exchange Securities or Conversion Securities, as the case may be, that all such conditions shall have been satisfied prior to any such Exchange or Conversion on the Event Date:
(a) as of such Event Date, there are no accrued but unpaid Payments and there are no Missed Payments (including amounts paid on the Event Date);
(b) as of such Event Date, no Default or Event of Default shall have occurred and be continuing with respect to the particular series of Debt Securities;
(c) as of such Event Date, there has not been, in any one instance or in the aggregate, an adverse effect on the rights, powers, privileges, validity or enforceability of the Dollar Preference Shares or Conversion Securities or Exchange Securities;
(d) the Dollar Preference Shares or Conversion Securities or Exchange Securities to be issued on such Event Date shall be duly authorized and reserved for issuance upon such conversion and when issued upon such exchange, will be fully paid and not subject to calls for further funds;
(e) no consents, authorizations, approvals or exemptions, except in each case such as shall have been obtained, will be required prior to such Event Date for the issuance and delivery of the Dollar Preference Shares or Conversion Securities or Exchange Securities to be issued upon such Conversion or Exchange;
(f) the issuance and delivery of the Dollar Preference Shares or Conversion Securities to be issued on such Event Date shall not violate (i) the Articles of Association of the Company or (ii) any law, rule or regulation applicable to the Company; and
(g) there shall have not occurred any change in law in England, or any amendment of the Articles of Association of the Company, prior to such Event Date, materially and adversely affecting the rights and privileges attached to the Dollar Preference Shares or Conversion Securities (including, without limitation, the rights of the holders thereof in the event of a bankruptcy or other similar proceeding with respect to the Company) or such holders' access to the courts of the United Kingdom and other applicable governmental authorities to enforce such rights.
SECTION 13.10. Taxes and Charges. Unless otherwise specified pursuant to Section 3.01, the issuance and delivery of Exchange Securities upon Exchange, or Conversion Securities or Dollar Preference Shares upon Conversion, of the Debt Securities of any series pursuant to this Article Thirteen shall be made without charge to the exchanging or converting Holder of Debt Securities for such Exchange Securities or Conversion Securities, or Dollar Preference Shares, as the case may be, or for any tax or other governmental charge (other than income or capital gains taxes) in respect of the issuance or delivery of such Exchange Securities or Conversion Securities or Dollar Preference Shares; provided, however, that the Company shall not be required to pay any tax or other governmental charge which may be payable in respect of (a) issuance or delivery of Dollar Preference Shares or Conversion Securities or Exchange Securities by or at the direction or request of a Holder thereof to any Person who is or is a nominee or agent for a Person whose business is or includes the provision of clearance services within the meaning of Section 70 or Section 96 of the Finance Act of 1986 or whose business is or includes issuing depositary receipts within the meaning of Section 67 or Section 93 of the Finance Act of 1986, other than the ADR Depositary or ADR Custodian or any successor thereto, all such Persons (other than the ADR Custodian or any successor thereto (being "Excepted Persons") or (b) a transfer involved in the issuance and delivery of any such Exchange Debt Security or Dollar Preference Shares or Conversion Debt Security, as the case may be, to any Person other than any Holder (not being an Excepted Person) of the Debt Security to be exchanged or converted (unless such other person is the securities depositary selected by the Company for the Debt Securities of such series), and the Company shall not be required to issue or deliver or procure the delivery of such Exchange Securities or Dollar Preference Shares or Conversion Securities unless and until the Person requesting the issuance or delivery thereof shall have paid to the Company the amount of such tax or other governmental charge or shall have established to the satisfaction of the Company that such tax or other governmental charge has been paid.
SECTION 13.11. Trustee Not Liable. The Trustee shall not be accountable with respect to the validity or value (or the kind or amount) of any Exchange Securities or Dollar Preference Shares or Conversion Securities which may be issued or delivered upon the Exchange or Conversion of any Debt Security pursuant to this Article Thirteen, and makes no representation with respect thereto. The Trustee shall not be responsible for any failure of the Company to issue, transfer or deliver or procure the delivery of any Exchange Securities or Dollar Preference Shares or Conversion Securities upon the surrender of any Debt Security for the purpose of an Exchange or Conversion pursuant to this Article Thirteen or to comply with any of the covenants of the Company contained in this Article Thirteen.
ARTICLE XIV
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 14.01. Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
HSBC HOLDINGS PLC
as Issuer
The Bank of New York
as Trustee
HSBC Bank USA
as Paying Agent
HSBC Bank USA
as Registrar
HSBC Bank USA
as Exchange Rate Agent
Attest:
EXHIBIT A
Form of Certification to be Given by Person Entitled to Receive Bearer Security
CERTIFICATE
HSBC Holdings plc
[Title of Debt Securities]
(the "Debt Securities")
This is to certify that, as of the date hereof, principal amount of the above-captioned Debt Securities (i) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source ("United States persons"), (ii) is owned by United States persons that are (a) foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c) (1) (v)) ("financial institutions") purchasing for their own account or for resale, or (b) United States persons who acquired the Securities through foreign branches of the United States financial institutions and who hold the Debt Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution has agreed, on its own behalf or through its agent, that we may advise the Issuer or the Issuer's agent that it will comply with the requirements of Section 165 (j) (3) (A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c) (2) (i) (D) (7)), and to the further effect that United States or foreign financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
If this certificate is being provided by a clearing organization, it is based on statements provided to it by its member organizations. In such event, we further certify (i) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any Debt Securities excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our member organizations to the effect that the statements made by such member organizations with respect to any Debt Securities submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in connection with certain tax laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.
Dated: ____________, 20__(1)
Exhibit B
Form of election to receive payments in
[Dollars or other applicable currency]
or to rescind such election
The undersigned, registered owner of certificate number R- , representing [name of series of Debt Securities] (the "Debt Securities") in an
aggregate principal amount of , hereby
G elects to receive all payments in respect of the Debt Securities
in [Dollars or other applicable currency], it being understood
that such election shall take effect as provided in the Debt
Securities and, subject to the terms and conditions set forth in
the indenture under which the Debt Securities were issued, shall
remain in effect until it is rescinded by the undersigned or
until such certificate is transferred.
G rescinds the election previously submitted by the undersigned to
receive all payments in respect of the Debt Securities in
[Dollars or other applicable currency], it being understood that
such rescission shall take effect as provided in the Debt
Securities.
(Name of Owner)
(Signature of Owner)
|
Form of Share Warrant
HSBC Holdings plc
(Incorporated with limited liability in
England: Registered No. 617987)
GLOBAL SHARE WARRANT
[ ] Non-cumulative dollar-denominated
preference shares, Series [ ] of US$0.01 each
This Warrant is a Global Share Warrant, without dividend coupons or a talon for further dividend coupons, representing the [ ] non-cumulative dollar-denominated preference shares, Series [ ] of US$0.01 each (the "Series [ ] dollar preference shares") of HSBC Holdings plc (the "Company") the issue of which was authorized by resolutions of a duly constituted Committee of the Board of Directors of the Company passed on [ and ], 20[ ].
THIS IS TO CERTIFY that the bearer hereof is entitled to ......................} fully paid Series [ ] dollar preference shares of the Company, subject to the Memorandum and Articles of Association of the Company.
Dividends on the Series [ ] dollar preference shares are payable [quarterly] in
arrears on [ ], [ ], [ ] and [ ] at the rate and subject as mentioned in the
Terms and Conditions endorsed hereon. The first dividend payment will be made on
[ ], 20[ ] in respect of the period from the [first] date of issue of the Series
[ ] dollar preference shares.
The bearer hereof shall be subject to, and entitled to the benefit of the terms of, and the rights and limitations attaching to, the Series [ ] dollar preference shares contained in the Company's Articles of Association and in resolutions of a duly constituted Committee of the Board of Directors of the Company passed on [ and ], 20 [ ], but so that, notwithstanding anything to the contrary therein, all dividends and other moneys payable on or in respect of the Series [ ] dollar preference shares represented hereby shall be paid against the presentation of this Global Share Warrant.
Title to this Global Share Warrant will pass by delivery.
The Company may treat the bearer hereof as the absolute owner of this Global Share Warrant notwithstanding any notation of ownership or other writing hereon, for all purposes, and the Company shall not be affected by any notice to the contrary. All payments of dividends and other moneys payable on or in respect of the Series [ ] dollar preference shares represented hereby made to the bearer hereof shall be valid and, to the extent of the sums so paid, constitute a full discharge to the Company.
This Global Share Warrant is exchangeable (in whole or in part) at the request of the bearer hereof for one or more definitive share certificates ("Certificates"), each Certificate representing one Series [ ] dollar preference share in registered form (a "Registered Preference Share") or an integral multiple thereof. Any such request shall specify the number of Registered Preference Shares in respect of which the exchange is to be effected and the number of Certificates required, the number of Registered Preference Shares to be represented by each Certificate and the name and address of each person (up to a maximum of four persons) in whose name the relevant Registered Preference Shares are to be registered. Any such exchange for Registered Preference Shares shall take place within fourteen calendar days after the relevant request at the office of HSBC Holdings plc, 8 Canada Square, London E14 5HQ, England or at such other office in the United Kingdom as the Company may appoint for the purpose and notify to the bearer hereof. Upon such exchange, against the presentation and surrender of this Global Share Warrant at the said office, the Company shall issue and deliver to or to the order of the bearer hereof, free of charge, the Certificates representing the total number of Series [ ] dollar preference shares (not exceeding the aggregate number of such shares represented hereby) for which this Global Share Warrant is submitted for exchange. Upon such presentation and surrender this Global Share Warrant shall be cancelled by the Company and, insofar as the total number of Series [ ] dollar preference shares represented by the Registered Preference Shares for which this Global Share Warrant is submitted for exchange is less than the aggregate number of Series [ ] dollar preference shares represented by this Global Share Warrant, then the Company shall issue and deliver to or to the order of the bearer hereof, free of charge, a fresh global Share Warrant (in like form to the present Global Share Warrant) representing the balance of the Series [ ] dollar preference shares not so submitted for exchange and duly executed by the Company.
GIVEN under the Seal of the Company this day of , 20 , in the presence of:
_____________________ Director
_____________________ Director/Secretary
Issued in London
(endorsed on Certificate and Warrant)
TERMS AND CONDITIONS
The terms of, and the rights and limitations attaching to, the non-cumulative
dollar-denominated preference shares, Series [ ] of US$ 0.01 each (the "Series [
] dollar preference shares") of HSBC Holdings plc (the "Company") are contained
in the Company's Articles of Association (the "Articles") and in resolutions of
a duly constituted Committee of the Board of Directors of the Company passed on
[ and ], 20 [ ] (together the "Terms of Issue"). Copies of the Terms of Issue
are available for inspection at the registered office of the Company. The
statements set out in these Terms and Conditions only represent summaries of and
are subject to the detailed provisions of the Terms of Issue, which set out the
terms of, and the rights and limitations attaching to, the Series [ ] dollar
preference shares. The holders of the Series [ ] dollar preference shares are
entitled to the benefit of, are subject to and are deemed to have notice of, all
the provisions of the Terms of Issue.
1. Status, Form and Title
The Series [ ] dollar preference shares rank pari passu inter se with any other dollar preference shares of $0.01 nominal value each, any pounds sterling-denominated preference shares of (pound)0.01 nominal value each and any euro-denominated preference shares of (euro)0.01 nominal value each in the Company's capital and with all other shares that rank equal to the sterling, euro or dollar preference shares.
The Series [ ] dollar preference shares will initially be issued in the form of a share warrant to bearer (the "Warrant"). Title to the Warrant will pass by delivery. Title to Series [ ] dollar preference shares in registered form (the "Registered Preference Shares") will pass by transfer and registration in accordance with the Articles. The Articles provide, inter alia, that Registered Preference Shares shall be transferred by instrument in writing in the usual common form or any other form which the Directors may approve, executed by or on behalf of the transferor. The Directors may, in their absolute discretion, decline to register any instrument of transfer unless the instrument of transfer is in respect of only Series [ ] dollar preference shares, is duly stamped (if so required), is in favour of a single transferee or not more than four joint transferees and is deposited at the place in the UK where the register of members of Series [ ] dollar preference shares is kept, accompanied by the relevant Share Certificate. Each registration of transfer of Registered Preference Shares will be effected upon entry of the name of the transferee in the register of members in respect of the Registered Preference Shares, without payment of any fee (but subject to payment of any taxes, stamp duties or other governmental charges payable in connection therewith).
2. Dividends
The Series [ ] dollar preference shares confer on the holders thereof
the right to receive in priority to any other class of shares in the
capital of the Company for the time being (other than any other dollar
preference shares of $0.01 nominal value each, pounds
sterling-denominated preference shares of (pound)0.01 nominal value
each and any euro-denominated preference shares of (euro)0.01 nominal
value each and any other shares that rank equal with or in priority to
the sterling, euro or dollar preference shares) (subject as mentioned
in paragraph 7 below) a non-cumulative preferential dividend in US
dollars payable out of the distributable profits of the Company
initially in the amount of US$ [ ] per Series [ ] dollar preference
share annually (subject to adjustment as described below), paid on [ ],
[ ], [ ] and [ ] in each year (each a "Dividend Payment Date") in
respect of the [quarter] ("A dividend period") then ended, but so that
the first dividend period shall begin on the date of the first issue of
the Series [ ] dollar preference shares and end on [ ] ,20[ ].
The amount of dividends payable on the Series [ ] dollar preference shares for each dividend period will be computed based upon the amount paid up or credited as paid up on each share of the Series [ ] dollar preference shares by annualizing the applicable dividend amount or rate and dividing by the number of dividend periods in a year, except that the amount of dividends payable for any period shorter or longer than a full dividend period will be computed on the basis of a 360-day year of 30-day months and the actual number of days elapsed in that period.
If, on any Dividend Payment Date, the distributable profits of the Company are, in the opinion of the Board of Directors of the Company, insufficient to enable payment in full of dividends on the Series [ ] dollar preference shares and of any other dividends payable on the same date on any other shares ranking, as to dividends, on a parity with the Series [ ] dollar preference shares, then such dividends shall not be payable in full and the Company will be required, to the extent of distributable profits (if any) (after payment in full, or the setting aside of a sum required for payment in full, of all dividends payable on any shares ranking in priority to the Series [ ] dollar preference shares), to pay dividends on the Series [ ] dollar preference shares and such other shares pro rata to the amount of cash dividend then owing in respect of them (together with arrears, if any, of cumulative dividends on shares ranking equal in the right to dividends with the Series [ ] dollar preference shares).
If in the opinion of the Board of Directors of the Company the payment of any dividend on the Series [ ] dollar preference shares would breach applicable capital adequacy requirements of the Financial Services Authority (the "FSA"), then such dividends shall not be payable.
If a dividend, or any part thereof, is not paid on a Dividend Payment Date, then holders of Series [ ] dollar preference shares shall have no claim relating to such non-payment, or to any interest thereon, whether or not dividends on the Series [ ] dollar preference shares are paid for any future dividend period.
If the dividend payable on the Series [ ] dollar preference shares has not been paid in full on the most recent Dividend Payment Date (or if a sum has not been set aside to provide for such payment in full), the Company may not redeem or purchase any other share capital of the Company ranking pari passu with or after the Series [ ] dollar preference shares, and may not contribute money to any sinking fund for any such redemption or purchase, until such time as dividends have been paid in full (or a sum shall have been set aside for such payment in full) on the Series [ ] dollar preference shares in respect of successive dividend periods together aggregating not less than [ ].)
If the dividend payable on the Series [ ] dollar preference shares has
not been paid in full on the most recent Dividend Payment Date (or if a
sum has not been set aside to provide for such payment in full), no
dividends or other distribution will be declared or paid on any other
share capital of the Company ranking, as to dividends, after the Series
[ ] dollar preference shares for any period unless full dividends have
been or contemporaneously are paid, or a sum sufficient for the payment
thereof set aside for such payment, on the Series [ ] dollar preference
shares in respect of successive dividend period together aggregating
not less than [ ].
Except as provided herein, the holders of the Series [ ] dollar preference shares carry no right to participate in the profits of the Company. Dividends declared but not yet paid do not bear interest.
3. Return of Capital
In the event of a winding up of the Company (but not on a redemption,
reduction or purchase by the Company of any of its share capital) the
holders of the Series [ ] dollar preference shares at the time in issue
will be entitled to receive in U.S. dollars out of the assets of the
Company available for distribution to shareholders, pari passu with the
holders of any other shares of the Company ranking, as regards
repayment of capital, pari passu with the Series [ ] dollar preference
shares and before any distribution of assets is made to holders of any
class of shares of the Company ranking after the Series [ ] dollar
preference shares as regards repayment of capital, a sum equal to the
amount paid up or credited as paid up on each Series [ ] dollar
preference share (being US$ [ ]) [together with a premium of US$ [ ] on
each Series [ ] dollar preference share] plus an amount equal to
accrued and unpaid dividends for the dividend period commencing prior
to the commencement of the winding up but ending after such date, to
the extent such dividend would otherwise (but for the winding up) have
been payable ("liquidating distributions"), provided that sufficient
assets exist to make such distribution having satisfied any amounts
payable to the holders of shares ranking in priority to the dollar
preference shares as regards the repayment of capital. If upon any
return of capital in a winding up, the amounts payable with respect to
the Series [ ] dollar preference shares and any other shares of the
Company ranking as to any such distribution on a parity with the Series
[ ] dollar preference shares are not paid in full, the holders of the
Series [ ] dollar preference shares and of such other shares will share
rateably in any such distribution of assets of the Company in
proportion to the full respective amounts to which they are entitled.
After payment of the full amount of the liquidating distribution to
which they are entitled, the holders of the Series [ ] dollar
preference shares will have no right or claim to any of the remaining
assets of the Company and will not be entitled to any further
participation or return of capital in a winding up.
4. [Redemption and] Purchase
[(a) Optional Redemption by the Company
The Company shall be entitled, subject to the provisions of applicable law, to redeem all, but not part only, of the Series [ ] dollar preference shares by giving to the holders of the Series [ ] dollar preference shares to be redeemed not less than 30 days' nor more than 60 days' prior notice in writing (a "Notice of Redemption") of a redemption date ("Redemption Date") which falls no earlier than [ ], [20 ]. Any such redemption shall be made at the aggregate of the nominal value thereof and any premium credited as paid up on such share together in each case with accrued and unpaid dividends on the Series [ ] dollar preference shares to be redeemed in respect of the period from the Dividend Payment Date last preceding the Redemption Date to the Redemption Date.
Each Notice of Redemption will specify (i) the Redemption Date, (ii) the particular Series [ ] dollar preference shares to be redeemed, (iii) the redemption price (specifying the amount of accrued and unpaid dividends to be included therein) and (iv) the place or places at which documents of title in respect of such Series [ ] dollar preference shares are to be presented for redemption and payment of the redemption moneys is to be effected. No defect in the Notice of Redemption or in the giving thereof will affect the validity of the redemption proceedings.
Payments in respect of the amount due on redemption of a Registered Preference Share represented by certificates ("Certificates") shall be made by US dollar cheque drawn on a bank in London or in the City of New York or upon the request of the holder or joint holders not later than the date specified for the purpose in the Notice of Redemption by transfer to a US dollar account maintained by the payee with a bank in London or in the City of New York. Such payments will be made against presentation and surrender of the relative Certificate at the office of the paying agent specified in the Notice of Redemption.
Payments in respect of the amount due on redemption of a Series [ ] dollar preference share represented by a Warrant ("Bearer Share") shall be made by US dollar cheque drawn on a bank in London or in the City of New York or upon the request of the holder not later than the date specified for the purpose in the Notice of Redemption by transfer to a US dollar account maintained by the payee with a bank in London or in the City of New York. Such payments will be made against presentation and surrender of the Warrant at the office of the paying agent specified in the Notice of Redemption.
All payments in respect of redemption moneys will in all respects be subject to any applicable fiscal or other laws.
As from the relevant Redemption Date the dividend on the Series [ ] dollar preference shares due for redemption shall cease to accrue except on any such Series [ ] dollar preference share in respect of which, upon the due surrender of the Certificate or, as the case may be, the Warrant payment of the redemption moneys due on such Redemption Date shall be improperly withheld or refused, in which case such dividend, at the rate then applicable, shall be deemed to have continued and shall accordingly continue to accrue from the relevant Redemption Date to the date of payment of such redemption moneys. Such Series [ ] dollar preference share shall not be treated as having been redeemed until the redemption moneys in question together with the accrued dividend thereon shall have been paid.
If the due date for the payment of the redemption moneys on any Series [ ] dollar preference share is not a Dollar Business Day (as defined in paragraph 5 below) then payment of such moneys will be made on the next succeeding day which is a Dollar Business Day and without any interest or other payment in respect of any such delay.
The receipt of the holder for the time being of any Registered Preference Share (or in the case of joint holders the receipt of any of them) and the receipt of the person delivering any Warrant to the place or one of the places specified in the Notice of Redemption in respect of the moneys payable on redemption on such Registered Preference Share or, as the case may be, such Bearer Share shall constitute an absolute discharge to the Company in respect thereof.]
(b) Purchases
Subject to applicable law (including, without limitation, the Companies Act 1985 and U.S. Federal securities laws) and applicable regulations of the FSA in its capacity as the United Kingdom Listing Authority, the Company may at any time purchase outstanding Series [ ] dollar preference shares in the open market, by tender or by private agreement in each case upon such terms as the Directors of the Company shall determine.
(c) FSA Consent
No [redemption or] repurchase of any Series [ ] dollar preference shares will be made by the Company without the prior consent of the FSA.
5. Payments
Dividends on the Series [ ] dollar preference shares will be payable, in the case of Bearer Shares, to the holder of such Bearer Shares in accordance with the provisions of the Warrant and, in the case of Registered Preference Shares, to the record holders thereof as they appear on the register for such Series [ ] dollar preference shares on such record dates, which will be between 15 and 60 days prior to the relevant Dividend Payment Dates, as will be fixed by the Board of Directors of the Company or an authorized committee thereof. Subject to any applicable fiscal or other laws or regulations, payments of dividends on Bearer Shares will be made by dollar cheque drawn on a bank in London or in the City of New York and on Registered Preference Shares will be made by dollar cheque drawn on a bank in London or in the City of New York and mailed to the record holder thereof at such holder's address as it appears on the register for the Series [ ] dollar preference shares.
If any Dividend Payment Date is not a day on which commercial banks and foreign exchange markets settle payments in US dollars and are open for general business in London and in the City of New York (a "Dollar Business Day"), then payment of the dividend will be made on the next succeeding day which is a Dollar Business Day, without any interest or other payment in respect of any such delay.
6. Voting Rights
[Holders of the Series [ ] dollar preference shares shall have the right to attend, speak and vote on all matters at general meetings of the Company if the Company shall have failed to pay in full the dividend which is (or, but for any provision of paragraph 2 above, would be) on the Series [ ] dollar preference shares in the last [ ] periods for which dividends were payable.]
Whenever entitled to vote at a general meeting of shareholders, each
holder of Series [ ] dollar preference shares present in person shall
have one vote on a show of hands, and on a poll each such holder
present in person or by proxy shall have one vote for every [ ] Series
[ ] dollar preference share held by him.
The Company will send to each holder of Series [ ] dollar preference shares all notices of general meetings of the Company and a copy of every circular or other like document sent by the Company to holders of ordinary shares of the Company. Each such notice will include a statement setting forth (i) the date of such meeting, (ii) a description of any resolution to be proposed for adoption at such meeting on which such holders are entitled to vote and (iii) instructions for the delivery of proxies. A holder of Series [ ] dollar preference shares who is not registered with an address in the United Kingdom and who has not supplied to the Company an address within the United Kingdom for the purpose of the giving of notices is not entitled to receive such documents from the Company.
7. Further Issues and Variation of Rights
The Company may at any time or from time to time, without the consent or sanction of the holder of the Series [ ] dollar preference shares, create and issue further preference shares in any currency ("Further Preference Shares") ranking as regards participation in the profits and assets of the Company in some or all respects pari passu with or after the Series [ ] dollar preference shares and so that, any Further Preference Shares ranking in some or all respects pari passu with the Series [ ] dollar preference shares may either carry rights identical in all respects with the Series [ ] dollar preference shares or carry rights differing therefrom in any respect including, but without limitation, rights as to dividend (cumulative or non-cumulative), dividend payment periods or dividend payment dates, premium on a return of capital, redemption or conversion.
The rights, preferences or restrictions attached to the Series [ ] dollar preference shares are capable of being varied or abrogated with the written consent of the holders of three-quarters in nominal value, or with the sanction of an extraordinary resolution passed at a class meeting of holders of, the Series [ ] dollar preference shares (or, if the proposed variation or abrogation would affect two or more series of dollar denominated preference shares in the capital of the Company, and the effect thereof is substantially the same, of all such series). The necessary quorum shall be two persons holding or representing by proxy not less than one-third in nominal value of the relevant issued dollar-denominated preference shares. At a class meeting, on a show of hands every holder of a dollar denominated preference share of the class is entitled to one vote for each dollar denominated preference share of the class held by him and the necessary majority for the passing of an extraordinary resolution at a class meeting will be three-quarters of those present in person or by proxy in such class meeting.
The rights attached to the Series [ ] dollar preference shares are not to be deemed to be varied or abrogated:
(a) by the creation or issue of any shares of any class or any securities convertible into shares of any class, that rank equally with such Series [ ] dollar preference shares in the right to share in the Company's profits or assets, whether the rights attaching to such shares are identical to or differ in any respect from the dollar preference shares; or
(b) by a redemption, reduction or purchase by the Company of any of its share capital, except in the circumstances described in paragraph 2 above.
Form of Share Certificate
[LOGO]
HSBC Holdings plc
(incorporated with limited liability in England: Registered No.617987)
SHARE CERTIFICATE
.................................... of ....................................
THIS IS TO CERTIFY THAT the above-named is/are the Registered Holder(s) of
..........................................(.....................)
Non-cumulative Dollar-denominated Preference Shares, Series [ ] of U.S. $0.01
each fully paid in HSBC Holdings plc (the "Company") subject to the
Memorandum and Articles of Association of the Company.
Signed on behalf of HSBC Holdings plc by ______________ and ______________ this day of ____________, 20__,
This certificate must be surrendered before any transfer of all or any of the shares comprised herein can be registered or a new certificate issued in exchange. The common form of transfer is accepted.
All correspondence with reference to this holding should be addressed to the Company Secretary, HSBC Holdings plc, 8 Canada Square, London E14 5HQ, England.
(endorsed on Certificate and Warrant)
TERMS AND CONDITIONS
The terms of, and the rights and limitations attaching to, the non-cumulative
dollar-denominated preference shares, Series [ ] of US$ 0.01 each (the "Series [
] dollar preference shares") of HSBC Holdings plc (the "Company") are contained
in the Company's Articles of Association (the "Articles") and in resolutions of
a duly constituted Committee of the Board of Directors of the Company passed on
[ and ], 20 [ ] (together the "Terms of Issue"). Copies of the Terms of Issue
are available for inspection at the registered office of the Company. The
statements set out in these Terms and Conditions only represent summaries of and
are subject to the detailed provisions of the Terms of Issue, which set out the
terms of, and the rights and limitations attaching to, the Series [ ] dollar
preference shares. The holders of the Series [ ] dollar preference shares are
entitled to the benefit of, are subject to and are deemed to have notice of, all
the provisions of the Terms of Issue.
1. Status, Form and Title
The Series [ ] dollar preference shares rank pari passu inter se with any other dollar preference shares of $0.01 nominal value each, any pounds sterling-denominated preference shares of (pound)0.01 nominal value each and any euro-denominated preference shares of (euro)0.01 nominal value each in the Company's capital and with all other shares that rank equal to the sterling, euro or dollar preference shares.
The Series [ ] dollar preference shares will initially be issued in the form of a share warrant to bearer (the "Warrant"). Title to the Warrant will pass by delivery. Title to Series [ ] dollar preference shares in registered form (the "Registered Preference Shares") will pass by transfer and registration in accordance with the Articles. The Articles provide, inter alia, that Registered Preference Shares shall be transferred by instrument in writing in the usual common form or any other form which the Directors may approve, executed by or on behalf of the transferor. The Directors may, in their absolute discretion, decline to register any instrument of transfer unless the instrument of transfer is in respect of only Series [ ] dollar preference shares, is duly stamped (if so required), is in favour of a single transferee or not more than four joint transferees and is deposited at the place in the UK where the register of members of Series [ ] dollar preference shares is kept, accompanied by the relevant Share Certificate. Each registration of transfer of Registered Preference Shares will be effected upon entry of the name of the transferee in the register of members in respect of the Registered Preference Shares, without payment of any fee (but subject to payment of any taxes, stamp duties or other governmental charges payable in connection therewith).
2. Dividends
The Series [ ] dollar preference shares confer on the holders thereof
the right to receive in priority to any other class of shares in the
capital of the Company for the time being (other than any other dollar
preference shares of $0.01 nominal value each, pounds
sterling-denominated preference shares of (pound)0.01 nominal value
each and any euro-denominated preference shares of (euro)0.01 nominal
value each and any other shares that rank equal with or in priority to
the sterling, euro or dollar preference shares) (subject as mentioned
in paragraph 7 below) a non-cumulative preferential dividend in US
dollars payable out of the distributable profits of the Company
initially in the amount of US$ [ ] per Series [ ] dollar preference
share annually (subject to adjustment as described below), paid on [ ],
[ ], [ ] and [ ] in each year (each a "Dividend Payment Date") in
respect of the [quarter] ("A dividend period") then ended, but so that
the first dividend period shall begin on the date of the first issue of
the Series [ ] dollar preference shares and end on [ ] ,20[ ].
The amount of dividends payable on the Series [ ] dollar preference shares for each dividend period will be computed based upon the amount paid up or credited as paid up on each share of the Series [ ] dollar preference shares by annualizing the applicable dividend amount or rate and dividing by the number of dividend periods in a year, except that the amount of dividends payable for any period shorter or longer than a full dividend period will be computed on the basis of a 360-day year of 30-day months and the actual number of days elapsed in that period.
If, on any Dividend Payment Date, the distributable profits of the Company are, in the opinion of the Board of Directors of the Company, insufficient to enable payment in full of dividends on the Series [ ] dollar preference shares and of any other dividends payable on the same date on any other shares ranking, as to dividends, on a parity with the Series [ ] dollar preference shares, then such dividends shall not be payable in full and the Company will be required, to the extent of distributable profits (if any) (after payment in full, or the setting aside of a sum required for payment in full, of all dividends payable on any shares ranking in priority to the Series [ ] dollar preference shares), to pay dividends on the Series [ ] dollar preference shares and such other shares pro rata to the amount of cash dividend then owing in respect of them (together with arrears, if any, of cumulative dividends on shares ranking equal in the right to dividends with the Series [ ] dollar preference shares).
If in the opinion of the Board of Directors of the Company the payment of any dividend on the Series [ ] dollar preference shares would breach applicable capital adequacy requirements of the Financial Services Authority (the "FSA"), then such dividends shall not be payable.
If a dividend, or any part thereof, is not paid on a Dividend Payment Date, then holders of Series [ ] dollar preference shares shall have no claim relating to such non-payment, or to any interest thereon, whether or not dividends on the Series [ ] dollar preference shares are paid for any future dividend period.
If the dividend payable on the Series [ ] dollar preference shares has not been paid in full on the most recent Dividend Payment Date (or if a sum has not been set aside to provide for such payment in full), the Company may not redeem or purchase any other share capital of the Company ranking pari passu with or after the Series [ ] dollar preference shares, and may not contribute money to any sinking fund for any such redemption or purchase, until such time as dividends have been paid in full (or a sum shall have been set aside for such payment in full) on the Series [ ] dollar preference shares in respect of successive dividend periods together aggregating not less than [ ].)
If the dividend payable on the Series [ ] dollar preference shares has
not been paid in full on the most recent Dividend Payment Date (or if a
sum has not been set aside to provide for such payment in full), no
dividends or other distribution will be declared or paid on any other
share capital of the Company ranking, as to dividends, after the Series
[ ] dollar preference shares for any period unless full dividends have
been or contemporaneously are paid, or a sum sufficient for the payment
thereof set aside for such payment, on the Series [ ] dollar preference
shares in respect of successive dividend period together aggregating
not less than [ ].
Except as provided herein, the holders of the Series [ ] dollar preference shares carry no right to participate in the profits of the Company. Dividends declared but not yet paid do not bear interest.
3. Return of Capital
In the event of a winding up of the Company (but not on a redemption,
reduction or purchase by the Company of any of its share capital) the
holders of the Series [ ] dollar preference shares at the time in issue
will be entitled to receive in U.S. dollars out of the assets of the
Company available for distribution to shareholders, pari passu with the
holders of any other shares of the Company ranking, as regards
repayment of capital, pari passu with the Series [ ] dollar preference
shares and before any distribution of assets is made to holders of any
class of shares of the Company ranking after the Series [ ] dollar
preference shares as regards repayment of capital, a sum equal to the
amount paid up or credited as paid up on each Series [ ] dollar
preference share (being US$ [ ]) [together with a premium of US$ [ ] on
each Series [ ] dollar preference share] plus an amount equal to
accrued and unpaid dividends for the dividend period commencing prior
to the commencement of the winding up but ending after such date, to
the extent such dividend would otherwise (but for the winding up) have
been payable ("liquidating distributions"), provided that sufficient
assets exist to make such distribution having satisfied any amounts
payable to the holders of shares ranking in priority to the dollar
preference shares as regards the repayment of capital. If upon any
return of capital in a winding up, the amounts payable with respect to
the Series [ ] dollar preference shares and any other shares of the
Company ranking as to any such distribution on a parity with the Series
[ ] dollar preference shares are not paid in full, the holders of the
Series [ ] dollar preference shares and of such other shares will share
rateably in any such distribution of assets of the Company in
proportion to the full respective amounts to which they are entitled.
After payment of the full amount of the liquidating distribution to
which they are entitled, the holders of the Series [ ] dollar
preference shares will have no right or claim to any of the remaining
assets of the Company and will not be entitled to any further
participation or return of capital in a winding up.
4. [Redemption and] Purchase
[(a) Optional Redemption by the Company
The Company shall be entitled, subject to the provisions of applicable law, to redeem all, but not part only, of the Series [ ] dollar preference shares by giving to the holders of the Series [ ] dollar preference shares to be redeemed not less than 30 days' nor more than 60 days' prior notice in writing (a "Notice of Redemption") of a redemption date ("Redemption Date") which falls no earlier than [ ], [20 ]. Any such redemption shall be made at the aggregate of the nominal value thereof and any premium credited as paid up on such share together in each case with accrued and unpaid dividends on the Series [ ] dollar preference shares to be redeemed in respect of the period from the Dividend Payment Date last preceding the Redemption Date to the Redemption Date.
Each Notice of Redemption will specify (i) the Redemption Date, (ii) the particular Series [ ] dollar preference shares to be redeemed, (iii) the redemption price (specifying the amount of accrued and unpaid dividends to be included therein) and (iv) the place or places at which documents of title in respect of such Series [ ] dollar preference shares are to be presented for redemption and payment of the redemption moneys is to be effected. No defect in the Notice of Redemption or in the giving thereof will affect the validity of the redemption proceedings.
Payments in respect of the amount due on redemption of a Registered Preference Share represented by certificates ("Certificates") shall be made by US dollar cheque drawn on a bank in London or in the City of New York or upon the request of the holder or joint holders not later than the date specified for the purpose in the Notice of Redemption by transfer to a US dollar account maintained by the payee with a bank in London or in the City of New York. Such payments will be made against presentation and surrender of the relative Certificate at the office of the paying agent specified in the Notice of Redemption.
Payments in respect of the amount due on redemption of a Series [ ] dollar preference share represented by a Warrant ("Bearer Share") shall be made by US dollar cheque drawn on a bank in London or in the City of New York or upon the request of the holder not later than the date specified for the purpose in the Notice of Redemption by transfer to a US dollar account maintained by the payee with a bank in London or in the City of New York. Such payments will be made against presentation and surrender of the Warrant at the office of the paying agent specified in the Notice of Redemption.
All payments in respect of redemption moneys will in all respects be subject to any applicable fiscal or other laws.
As from the relevant Redemption Date the dividend on the Series [ ] dollar preference shares due for redemption shall cease to accrue except on any such Series [ ] dollar preference share in respect of which, upon the due surrender of the Certificate or, as the case may be, the Warrant payment of the redemption moneys due on such Redemption Date shall be improperly withheld or refused, in which case such dividend, at the rate then applicable, shall be deemed to have continued and shall accordingly continue to accrue from the relevant Redemption Date to the date of payment of such redemption moneys. Such Series [ ] dollar preference share shall not be treated as having been redeemed until the redemption moneys in question together with the accrued dividend thereon shall have been paid.
If the due date for the payment of the redemption moneys on any Series [ ] dollar preference share is not a Dollar Business Day (as defined in paragraph 5 below) then payment of such moneys will be made on the next succeeding day which is a Dollar Business Day and without any interest or other payment in respect of any such delay.
The receipt of the holder for the time being of any Registered Preference Share (or in the case of joint holders the receipt of any of them) and the receipt of the person delivering any Warrant to the place or one of the places specified in the Notice of Redemption in respect of the moneys payable on redemption on such Registered Preference Share or, as the case may be, such Bearer Share shall constitute an absolute discharge to the Company in respect thereof.]
(b) Purchases
Subject to applicable law (including, without limitation, the Companies Act 1985 and U.S. Federal securities laws) and applicable regulations of the FSA in its capacity as the United Kingdom Listing Authority, the Company may at any time purchase outstanding Series [ ] dollar preference shares in the open market, by tender or by private agreement in each case upon such terms as the Directors of the Company shall determine.
(c) FSA Consent
No [redemption or] repurchase of any Series [ ] dollar preference shares will be made by the Company without the prior consent of the FSA.
5. Payments
Dividends on the Series [ ] dollar preference shares will be payable, in the case of Bearer Shares, to the holder of such Bearer Shares in accordance with the provisions of the Warrant and, in the case of Registered Preference Shares, to the record holders thereof as they appear on the register for such Series [ ] dollar preference shares on such record dates, which will be between 15 and 60 days prior to the relevant Dividend Payment Dates, as will be fixed by the Board of Directors of the Company or an authorized committee thereof. Subject to any applicable fiscal or other laws or regulations, payments of dividends on Bearer Shares will be made by dollar cheque drawn on a bank in London or in the City of New York and on Registered Preference Shares will be made by dollar cheque drawn on a bank in London or in the City of New York and mailed to the record holder thereof at such holder's address as it appears on the register for the Series [ ] dollar preference shares.
If any Dividend Payment Date is not a day on which commercial banks and foreign exchange markets settle payments in US dollars and are open for general business in London and in the City of New York (a "Dollar Business Day"), then payment of the dividend will be made on the next succeeding day which is a Dollar Business Day, without any interest or other payment in respect of any such delay.
6. Voting Rights
[Holders of the Series [ ] dollar preference shares shall have the right to attend, speak and vote on all matters at general meetings of the Company if the Company shall have failed to pay in full the dividend which is (or, but for any provision of paragraph 2 above, would be) on the Series [ ] dollar preference shares in the last [ ] periods for which dividends were payable.]
Whenever entitled to vote at a general meeting of shareholders, each
holder of Series [ ] dollar preference shares present in person shall
have one vote on a show of hands, and on a poll each such holder
present in person or by proxy shall have one vote for every [ ] Series
[ ] dollar preference share held by him.
The Company will send to each holder of Series [ ] dollar preference shares all notices of general meetings of the Company and a copy of every circular or other like document sent by the Company to holders of ordinary shares of the Company. Each such notice will include a statement setting forth (i) the date of such meeting, (ii) a description of any resolution to be proposed for adoption at such meeting on which such holders are entitled to vote and (iii) instructions for the delivery of proxies. A holder of Series [ ] dollar preference shares who is not registered with an address in the United Kingdom and who has not supplied to the Company an address within the United Kingdom for the purpose of the giving of notices is not entitled to receive such documents from the Company.
7. Further Issues and Variation of Rights
The Company may at any time or from time to time, without the consent or sanction of the holder of the Series [ ] dollar preference shares, create and issue further preference shares in any currency ("Further Preference Shares") ranking as regards participation in the profits and assets of the Company in some or all respects pari passu with or after the Series [ ] dollar preference shares and so that, any Further Preference Shares ranking in some or all respects pari passu with the Series [ ] dollar preference shares may either carry rights identical in all respects with the Series [ ] dollar preference shares or carry rights differing therefrom in any respect including, but without limitation, rights as to dividend (cumulative or non-cumulative), dividend payment periods or dividend payment dates, premium on a return of capital, redemption or conversion.
The rights, preferences or restrictions attached to the Series [ ] dollar preference shares are capable of being varied or abrogated with the written consent of the holders of three-quarters in nominal value, or with the sanction of an extraordinary resolution passed at a class meeting of holders of, the Series [ ] dollar preference shares (or, if the proposed variation or abrogation would affect two or more series of dollar denominated preference shares in the capital of the Company, and the effect thereof is substantially the same, of all such series). The necessary quorum shall be two persons holding or representing by proxy not less than one-third in nominal value of the relevant issued dollar-denominated preference shares. At a class meeting, on a show of hands every holder of a dollar denominated preference share of the class is entitled to one vote for each dollar denominated preference share of the class held by him and the necessary majority for the passing of an extraordinary resolution at a class meeting will be three-quarters of those present in person or by proxy in such class meeting.
The rights attached to the Series [ ] dollar preference shares are not to be deemed to be varied or abrogated:
(a) by the creation or issue of any shares of any class or any securities convertible into shares of any class, that rank equally with such Series [ ] dollar preference shares in the right to share in the Company's profits or assets, whether the rights attaching to such shares are identical to or differ in any respect from the dollar preference shares; or
(b) by a redemption, reduction or purchase by the Company of any of its share capital, except in the circumstances described in paragraph 2 above.
HSBC HOLDINGS PLC
As Issuer
and
[BOOK-ENTRY DEPOSITARY]
As Book-Entry Depositary
and
THE OWNERS OF BOOK-ENTRY INTERESTS
NOTE DEPOSIT AGREEMENT
Dated as of
ARTICLE 1. DEFINITIONS AND OTHER GENERAL PROVISIONS...........................3
Section 1.1. Definitions......................................................3
Section 1.2. Rules of Construction............................................5
ARTICLE 2. BOOK-ENTRY INTERESTS...............................................5
Section 2.1. Deposit of Global Notes..........................................5
Section 2.2. Book-entry Systems...............................................5
Section 2.3. Record Of Transfer Of The Certificateless Depositary Interest....6
Section 2.4. Transfer Of The Global...........................................6
Section 2.5. Cancellation.....................................................7
Section 2.6. Payments In Respect Of A Certificateless Depositary Interest
And A Global Note................................................7
Section 2.7. Redemption of Notes And Book-Entry Interests.....................8
Section 2.8. Record Date......................................................8
Section 2.9. Action In Respect Of The Certificateless Depositary Interest.....8
Section 2.10. Changes Affecting The Global Notes..............................9
Section 2.11. Reports.........................................................9
Section 2.12. Additional Amounts..............................................9
ARTICLE 3. THE BOOK-ENTRY DEPOSITARY.........................................10
Section 3.1. Certain Duties And Responsibilities.............................10
Section 3.2. Certain Rights Of Book-Entry Depositary.........................11
Section 3.3. Not Responsible For Recitals Or The Issuance Of Notes...........12
Section 3.4. Money Held In Trust.............................................13
Section 3.5. Compensation And Reimbursement..................................13
Section 3.6. Book-Entry Depositary Required;.................................14
Section 3.7. Resignation And Removal; Appointment Of Successor...............14
Section 3.8. Acceptance Of Appointment By Successor..........................15
Section 3.9. Merger, Conversion, Consolidation Or Succession To Business.....16
Section 3.10. May Hold Notes; Other..........................................16
ARTICLE 4. MISCELLANEOUS PROVISIONS..........................................17
Section 4.1. Notices To Book-Entry Depositary Or Issuer......................17
Section 4.2. Notice To Depositary And Owners; Waiver.........................17
Section 4.3. Effect Of Heading And Table Of Contents.........................17
Section 4.4. Successors And Assigns..........................................18
Section 4.5. Separability Clause.............................................18
Section 4.7. Governing Law...................................................18
Section 4.8. Jurisdiction....................................................18
Section 4.9. Counterparts....................................................18
Section 4.10. Inspection Of Agreement........................................18
Section 4.11. Satisfaction And Discharge.....................................18
Section 4.12. Amendments.....................................................19
Section 4.13. Book-Entry Depositary To Execute Amendments....................19
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NOTE DEPOSIT AGREEMENT
THIS NOTE DEPOSIT AGREEMENT (this "Agreement") is made as of by and between HSBC Holdings plc, a public limited company organized and existing under the laws of England and Wales (the "Issuer"), which is a party for the limited purposes referred to herein, [Book-Entry Depositary], as Book-Entry Depositary (the "Book-Entry Depositary"), and the owners from time to time of beneficial interests in Depositary interests issued hereunder in book-entry form ("Book Entry Interests") in respect of one or more Global Notes (as defined below) representing one or more Series (as defined below) of Notes (the "Notes") to be issued pursuant to one of two Indentures (each, an "Indenture") dated as of between [Book-Entry Depositary], as Trustee, and the Issuer.
ARTICLE 1
DEFINITIONS AND OTHER GENERAL PROVISIONS
SECTION 1.1. DEFINITIONS. The following terms, as used herein, have the following meanings:
"Affiliate" of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, "control", when used with respect to any specific Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Beneficial Owner" means any Person owning any beneficial interest in the relevant Certificateless Depositary Interest but who is not the Holder of such Certificateless Depositary Interest, and may include any "DTC Participant" (as hereinafter defined), it being understood that the term "Beneficial Owner" shall not include any agent or financial intermediary holding an interest in such Certificateless Depositary Interest solely to the extent such interest is held for or on behalf of any Beneficial Owner.
"Board Resolution" shall have the meaning ascribed to it in the relevant Indenture.
"Book-Entry Depositary" means the party named as such in this Agreement or its nominee or the custodian of either until a successor shall have become such pursuant to Section 3.07 hereof, and thereafter "Book-Entry Depositary" shall mean such successor or its nominee or the custodian of either.
"Book-Entry Notes" means interests in the relevant Certificateless Depositary Interest which are eligible for trading through DTC's book-entry system.
"Certificateless Depositary Interest" means an interest in a Global Note held by the Book-Entry Depositary that (i) shall, at all times, represent the right to receive 100% of the principal and premium (if any) of and interest and Payments and Missed Payments (if any) on such Global Note and the right to receive in certain circumstances the issue of one or more Definitive Notes representing up to 100% of the principal amount represented by such Global Note and (ii) is issued by the Book-Entry Depositary to the Depositary or its nominee.
"Corporate Trust Office" means the principle Corporate Trust Office of the Book-Entry Depositary in The City of New York, at which any particular time its corporate trust business shall be principally administered, which at the date hereof is located at [Book-Entry Depositary's address].
"Definitive Notes" means Definitive Notes in registered form issued pursuant to the relevant Indenture.
"Depositary" means DTC, or any successor, as the owner of the relevant Certificateless Depositary Interest and indicated as such in the records of the Book-Entry Depositary.
"DTC" means The Depository Trust Company or its nominee.
"DTC Participants" means institutions that have accounts with DTC or its successors.
"Event of Default" shall have the meaning ascribed to it in the relevant Indenture.
"Exchange Act" means the United States Securities Exchange Act of 1934, as amended.
"Global Note" means one or more global securities in bearer form representing 100% of a Series.
"Holder" means the person in whose name a Certificateless Depositary Interest is recorded in the records of the Book-Entry Depositary and shall initially be DTC.
"Letter of Representations" means the relevant Letter of Representations to DTC with respect to all Notes or a particular Series of Notes from the Book-Entry Depositary.
"Officers' Certificate" shall have the meaning ascribed to it in the relevant Indenture.
"Opinion of Counsel" means a written opinion from legal counsel, who may be counsel to the Issuer and who shall otherwise be reasonably satisfactory to the Book-Entry Depositary.
"Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the Book-Entry Depositary, any vice president, any assistant vice president, the secretary, any assistant secretary, any assistant treasurer, any trust officer or assistant trust officer employed by the Book-Entry Depositary's corporate trust department or any other officer of the Book-Entry Depositary customarily performing functions similar to those performed by any of the above-designated officers, and also means, with respect to a particular corporate trust or agency matter, any other officer to whom such matter is referred because of his or her knowledge and familiarity with the particular subject.
"Series" means all Notes of the same Series authorized by or pursuant to a particular resolution or resolutions of the Board of Directors of the Issuer in accordance with the terms of the relevant Indenture.
"TIA" means the United States Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date of the Indentures; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "TIA" means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.
"Trustee" means the Person acting as Trustee under the relevant Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of such Indenture, and "Trustee" shall thereafter mean such successor Trustee.
SECTION 1.2. RULES OF CONSTRUCTION. Unless the context otherwise requires, (1) a term has the meaning assigned to it herein; (2) any capitalized term not otherwise defined herein shall have the meaning ascribed to it in the relevant Indenture; (3) "or" is not exclusive; (4) "including" means including without limitation; (5) words in the singular include the plural and words in the plural include the singular; and (6) the words "herein", "hereof" and "hereunder" and other words of similar import to this Agreement as a whole and not to any particular Article, Section or other subdivision.
ARTICLE 2
BOOK-ENTRY INTERESTS
SECTION 2.1. DEPOSIT OF GLOBAL NOTES. The Book-Entry Depositary hereby agrees to accept custody of the Global Notes and shall act as Book-Entry Depositary in accordance with the terms of this Agreement. The Book-Entry Depositary shall hold the Global Notes at its Corporate Trust Office in the Borough of Manhattan, The City of New York or at such place or places as it shall determine with the consent of the Issuer for the purposes of Section 2.03 below. The Book-Entry Depositary shall issue the relevant Certificateless Depositary Interest in accordance with the relevant Letter of Representations.
SECTION 2.2. BOOK-ENTRY SYSTEMS.
(a) Upon acceptance by DTC of the Certificateless Depositary Interest of a Series for entry into its book-entry settlement system in accordance with the terms of the Letter of Representations, Book-Entry Notes of a Series will be traded through DTC's book-entry system, and ownership of such Book-Entry Notes shall be shown in, and the transfer of such ownership shall be effected through, records maintained by DTC or its successors or DTC Participants. Book-Entry Notes of a Series shall be transferable only as units in the same denominations as the Notes to which they correspond.
(b) The Certificateless Depositary Interest shall be issuable only to
DTC, or successors of DTC or their respective nominees. Except as provided in
Section 2.04, no owner of Book-Entry Notes of a Series shall be entitled to
receive a Definitive Note on account of such ownership, and such owner's
interest therein shall be shown only in accordance with the procedures of DTC as
set forth in the Letter of Representations.
(c) Neither the Depositary nor any Beneficial Owner shall be entitled to any benefits under this Agreement nor shall any Certificateless Depositary Interest be valid or obligatory for any purpose, unless such Certificateless Depositary Interest shall have been properly credited on the records of the Book-Entry Depositary in the name of the Depositary.
SECTION 2.3. RECORD OF TRANSFER OF THE CERTIFICATELESS DEPOSITARY INTEREST. The Issuer appoints the Book-Entry Depositary as its agent for the sole purpose of maintaining at the Book-Entry Depositary's Corporate Trust Office records in which the Book-Entry Depositary shall (i) record DTC as the Initial owner of a Certificateless Depositary Interest of a Series, (ii) record the transfer of such Certificateless Depositary Interest, and (iii) record the increases and decreases in the principal amount represented by such Certificateless Depositary Interest. Certificateless Depositary Interests cannot be transferred unless such transfer is noted in the records of the Book-Entry Depositary. The Book-Entry Depositary shall treat the Person in whose name the Certificateless Depositary Interest of a Series is recorded in the records of the Book-Entry Depositary as the owner thereof for all purposes whatsoever and shall not be bound or affected by any notice to the contrary, other than an order of a court having jurisdiction over the Book-Entry Depositary.
The foregoing paragraph shall not (i) impose an obligation on the Book-Entry Depositary to record the interests in or transfers of Book-Entry Notes of a Series held by DTC Participants, or Persons that may hold Book-Entry Notes of a Series through DTC Participants or (ii) restrict transfers of such Book-Entry Notes held by DTC Participants or such Persons.
In connection with the Book-Entry Depositary's appointment as the Issuer's agent under this Section 2.03, the Issuer shall have such compensation and reimbursement obligations as specified in Section 3.05 hereof and such rights and obligations as regards removal of the Book-Entry Depositary and appointment of a successor as are specified in Section 3.07 hereof.
SECTION 2.4. TRANSFER OF THE GLOBAL NOTE. The Book-Entry Depositary shall hold the Global Notes in custody for the benefit of the Depositary. The Book-Entry Depositary shall not transfer or lend any Global Note or any interest therein except that the Book-Entry Depositary may transfer Global Notes to a successor Book-Entry Depositary in accordance with Section 3.07. Notwithstanding the foregoing, the Book-Entry Depositary shall not under any circumstances surrender or deliver any Global Note to the Depositary. A Global Note shall be exchangeable pursuant to this Section only (i) if the Book-Entry Depositary notifies the Issuer in writing that it is unwilling or unable to continue to act as Book-Entry Depositary and a successor Book-Entry Depositary is not appointed by the Issuer within 90 days of such notification, (ii) if DTC notifies the Book-Entry Depositary that it is unwilling or unable to continue to hold the Certificateless Depositary Interests issued by the Book-Entry Depositary with respect a Global Note or if at any time DTC is unable to or ceases to be eligible as a clearing agency registered under the Exchange Act and a successor to DTC registered under the Exchange Act is not appointed by the Book-Entry Depositary at the written request of the Issuer within 90 days, or (iii) an Event of Default has occurred and is continuing and the Book Entry Depositary has received a request from DTC, or (iv) if a Global Note shall otherwise be exchangeable under the relevant Indenture. If exchangeable pursuant to the preceding sentence, the relevant Global Note shall be exchangeable for Definitive Notes aggregating a like amount as the relevant Global Note so exchangeable. Definitive Notes shall be registered in the names of (or if permitted by the terms of the Notes, otherwise delivered to) the owners of the beneficial interests in the relevant Global Note as such names are from time to time provided, where DTC holds the Certificateless Depositary Interest corresponding to the relevant Global Note, by the relevant DTC Participants holding interests in the relevant Global Note (as the names of such DTC Participants are provided to the Book-Entry Depositary from time to time by DTC and by the Book-Entry Depositary to the Issuer) and, in all other cases, by the Holder, to the Trustee. The Book-Entry Depositary agrees that in either such event it will promptly surrender the relevant Global Note held by it to the Trustee in connection with such exchange for cancellation pursuant to the relevant Indenture.
Delivery of Definitive Notes pursuant to this Section 2.04 shall be made free of any fees of the Book-Entry Depositary to the Depositary or Beneficial Owner with respect thereto; provided that, a Person receiving Definitive Notes shall be obligated to pay or otherwise bear the cost of any tax or other governmental charge and any cost or expenses of the Book-Entry Depositary relating to insurance, postage, transportation and the like.
SECTION 2.5. CANCELLATION. If a Global Note is surrendered for payment, or for redemption or purchase of Notes evidenced thereby or for exchange for Definitive Notes to any Person other than the Trustee, such Global Note shall, subject to Section 2.07, be delivered to the Trustee for cancellation.
SECTION 2.6. PAYMENTS IN RESPECT OF A CERTIFICATELESS DEPOSITARY INTEREST AND A GLOBAL NOTE.
(a) Whenever the Book-Entry Depositary shall receive from any Paying Agent appointed under the relevant Indenture any payment on a Global Note, the amount so received shall be distributed promptly to the Depositary entitled thereto, on the corresponding payment date for such Global Note. So long as DTC is the Depositary, such payments shall be made in accordance with the Letter of Representations.
(b) The Book-Entry Depositary shall forward to the Issuer and the Trustee or their agents such information from its records as the Issuer or the Trustee may reasonably request to enable the Issuer, the Trustee or their agents to file necessary reports with governmental agencies, and the Book-Entry Depositary, the Issuer and the Trustee or their agents may (but shall not be required to) file any such reports necessary to obtain benefits under any applicable tax treaties for the Depositary or Beneficial Owners of Book-Entry Notes of a Series.
(c) None of the Issuer, the Trustee, the Book-Entry Depositary or any agent of the Issuer, the Trustee or the Book-Entry Depositary will have any responsibility or liability for any aspect of the records relating to payments made by the Depositary (or its direct or indirect Participants) on account of Book-Entry Notes of a Series or for maintaining, supervising or reviewing any records relating to such Book-Entry Notes.
(d) Notwithstanding any other provision of this Agreement, the Book-Entry Depositary shall be required to pay to the Depositary only amounts (including Additional Amounts (as defined herein)) received by the Book-Entry Depositary under a Global Note.
SECTION 2.7. REDEMPTION OF NOTES AND BOOK-ENTRY INTERESTS. In the event that the Issuer or a Holder exercises any right of conversion, exchange or redemption under the relevant Indenture and terms of the Notes of a Series in respect of all or any part of a Global Note, the Book-Entry Depositary shall promptly deliver such Global Note to the Trustee and request the Trustee to endorse the relevant schedule to such Global Note to reflect the reduction in the principal amount of such Global Note as a result of such conversion, exchange or redemption. In addition, the Book-Entry Depositary shall notify the Depositary of the principal amount redeemed and of a corresponding reduction of the same principal amount of the corresponding Certificateless Depositary Interest. The Book-Entry Depositary shall pay or deliver, as the case may be, all such amounts or securities, as the case may be, received by it in connection with such conversion, exchange or redemption to the Depositary.
SECTION 2.8. RECORD DATE. Whenever (i) the Book-Entry Depositary shall receive notice of any action to be taken by the Holder of a Global Note, (ii) any payment is to be made in respect of a Global Note, or (iii) the Book-Entry Depositary otherwise deems it appropriate in respect of any other matter, the Book-Entry Depositary shall fix a record date for the determination of the relevant principal amount represented by the relevant Certificateless Depositary Interest and the Holder at such record date, with respect to which and/or whom the Depositary shall be entitled to take any such action or made such payment or to act in respect of any such matter, which record date shall be the same date as that fixed with respect to the corresponding Holder of the relevant Global Note or Holders of Definitive Notes under the relevant Indenture. Subject to the provisions of this Agreement, only the Depositary in whose name the relevant Certificateless Depositary Interest is recorded in the records of the Book-Entry Depositary at the close of business on such record date shall be entitled to give instructions as to such action, receive any such action or to act in respect of any such matter.
SECTION 2.9. ACTION IN RESPECT OF THE CERTIFICATELESS DEPOSITARY INTEREST. As soon as practicable after receipt by the Book-Entry Depositary of notice of any solicitation of consents or request for a waiver or other action by the Holder of a Global Note under the relevant Indenture or by the Book-Entry Depositary under this Agreement, the Book-Entry Depositary shall mail to the Depositary a notice containing (a) such information as is contained in the notice received, (b) a statement that the Depositary at the close of business on a specified record date (established in accordance with Section 2.08 hereof) will be entitled, subject to the provisions of or governing the relevant Certificateless Depositary Interest or Global Note, to instruct the Book-Entry Depositary as to the consent, waiver or other action, if any, pertaining to this Agreement or the relevant Indenture and (c) a statement as to the manner in which such instructions may be given. Upon the written request of the Depositary received on or before the date established by the Book-Entry Depositary for such purpose, the Book-Entry Depositary shall endeavor insofar as practicable and permitted under the provisions of this Agreement or the relevant Indenture, as the case may be, to take such action regarding the requested consent, waiver or other action in respect of all or only a portion of the relevant principal amount of the relevant Certificateless Depositary Interest or Global Note, as the case may be, with respect to which instructions in accordance with any instructions set forth in such request have been received. In addition, the Book-Entry Depositary will forward to the Depositary, or, based upon instructions received from the Depositary, to owners of Book-Entry Notes of a Series, all materials pertaining to any such solicitation, request, offer or other action. The Book-Entry Depositary agrees that the Depositary may grant proxies or otherwise authorize Participants (or Persons owning Book-Entry Notes of a Series through such Participants) to provide such instructions to the Book-Entry Depositary so that it may exercise any rights of a Holder or take any other action which a Holder is entitled to take under the relevant Indenture. The Book-Entry Depositary shall not itself exercise any discretion in the granting of consents or waivers or the taking of any other action in respect of a Global Note. Without prejudice to Section 2.06(c), the records of the Depositary shall, absent manifest error, be conclusive evidence of the owners of the Book-Entry Notes of a Series and the principal amount represented by such Book-Entry Notes.
SECTION 2.10. CHANGES AFFECTING THE GLOBAL NOTES. Upon any reclassification of the Notes of a Series, or upon any recapitalization, reorganization, merger, assumption or consolidation or sale of assets affecting the Issuer or to which the Issuer is a party, any securities that shall be received by the Book-Entry Depositary in exchange for or in respect of the relevant Global Note shall be treated as a new Global Note or as part of the relevant Global Note under this Agreement and any corresponding Certificateless Depositary Interest shall thenceforth represent the relevant Global Note, including such new securities so received.
SECTION 2.11. REPORTS. The Book-Entry Depositary shall as promptly as practicable send to the Depositary any notices, reports and other communications received from the Issuer or the Trustee that are received by the Book-Entry Depositary as Holder of a Global Note.
SECTION 2.12. ADDITIONAL AMOUNTS. All payments made on the Book-Entry Notes of a Series will be made free and clear of and without deduction or withholding for or on account of any present or future Taxes, duties, assessments or governmental charges of whatever nature unless the withholding or deduction is then required by law. If any such deduction or withholding is required by the United Kingdom or any political subdivision or taxing authority thereof or therein ("Taxes"), each owner of Book-Entry Notes of a Series so affected shall be entitled to receive from the Book-Entry Depositary additional amounts ("Additional Amounts") to the extent that such owner would be entitled to receive Additional Amounts under the Indenture to be determined by treating the owner of any Book-Entry Interest as a Holder or Beneficial Owner for purposes of Section 10.04 of the relevant Indenture). At least 10 days prior to the first date on which withholding on account of Taxes would be required under applicable law or payment of Additional Amounts would be required pursuant to this Section 2.12 to be made, and at least 10 days prior to any subsequent such date if there has been any change with respect to such matters, the Issuer will furnish the Book-Entry Depositary with an Officers' Certificate that shall specify the amount, if any, required to be withheld on such payments to the Depositary and the amount of Additional Amounts payable to the Depositary, net of amounts to which the Depositary or any owner of such Book-Entry Interest is not entitled. The Book-Entry Depositary shall have no responsibility for determining whether the Depositary or any owner of a Book-Entry Interest is entitled to the payment of Additional Amounts, but shall be entitled to rely conclusively for this purpose on the Officers' Certificate or on certifications from the Depositary. Notwithstanding anything to the contrary provided above, the Book-Entry Depositary shall pay or cause to be paid Additional Amounts only out of funds that shall be received by it from the Issuer for that purpose.
ARTICLE 3
THE BOOK-ENTRY DEPOSITARY
SECTION 3.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Book-Entry Depositary undertakes to perform such duties and only such duties as are specifically set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve the Book-Entry Depositary from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(i) the duties and obligations of the Book-Entry Depositary with respect to Certificateless Depositary Interests and Global Notes of a Series shall be determined solely by the express provisions of this Agreement and the Book-Entry Depositary shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Book-Entry Depositary; and
(ii) in the absence of bad faith on its part, the Book-Entry Depositary may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Book-Entry Depositary and conforming to the requirements of this Agreement, but in the case of any such statements, certificates or opinions that by any provision hereof are specifically required to be furnished to the Book-Entry Depositary, the Book-Entry Depositary shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement.
(c) The Book-Entry Depositary shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Book-Entry Depositary, unless it shall be proved that the Book-Entry Depositary was negligent in ascertaining the pertinent facts.
(d) The Book-Entry Depositary shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Depositary relating to the time, method and place of conducting any proceeding for any remedy available to the Book-Entry Depositary, or exercising any power conferred upon the Book-Entry Depositary, under this Agreement.
(e) No provision of this Agreement shall require the Book-Entry Depositary to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Book-Entry Depositary shall be subject to the provisions of this Section.
SECTION 3.2. CERTAIN RIGHTS OF BOOK-ENTRY DEPOSITARY. Subject to the provisions of Section 3.01 hereof:
(a) the Book-Entry Depositary may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, security, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Officers' Certificate, a Company Order or Company Request and any resolution of the Board of Directors of the Issuer may be sufficiently evidenced by a Board Resolution;
(c) the Book-Entry Depositary may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon in accordance with such advice or Opinion of Counsel.
(d) the Book-Entry Depositary shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Book-Entry Depositary, in its discretion, may make reasonable further inquiry or investigation into such facts or matters related to the issuance of a Global Note;
(e) the Book-Entry Depositary may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Book-Entry Depositary shall not be responsible for any misconduct or negligence on the part of any agent (other than an officer or employee of the Book-Entry Depositary) or attorney appointed with due care by it hereunder;
(f) the Book-Entry Depositary shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request, order or direction of the Depositary pursuant to this Agreement, unless the Depositary or Beneficial Owner shall have offered to the Book-Entry Depositary reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request, order or direction, provided that such request, order or direction shall not expose the Book-Entry Depositary to personal liability;
(g) the Book-Entry Depositary shall not be liable for any action taken or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement;
(h) whenever in the administration of its duties under this Agreement the Book-Entry Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Book-Entry Depositary, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Book-Entry Depositary; and
(i) the Book-Entry Depositary shall incur no liability to the Depositary or any Beneficial Owner or any other Person hereunder or in connection herewith if, by reason of any provision of any present or future law or regulation of any governmental or regulatory authority or securities exchange, or by reason of the terms of the relevant Indenture or the relevant Global Note, or by any reason of any act of God or war or other circumstance beyond the control of the Book-Entry Depositary, the Book-Entry Depositary shall be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement provide shall be done or performed; and the Book-Entry Depositary shall not incur any liability to the Depositary or Beneficial Owner or any other Person hereunder or in connection herewith by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or thing which the terms of this Agreement provide shall or may be done or performed by reason of any exercise of or failure to exercise in good faith any discretion provided for in this Agreement.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR THE ISSUANCE OF NOTES. The recitals contained in the Indentures and in the Notes, except the Trustee's certificates of authentication, shall be taken as the statements of the Issuer, and the Book-Entry Depositary assumes no responsibility for their correctness. The Book-Entry Depositary makes no representations as to the validity or sufficiency of this Agreement or of the Global Notes or of any offering materials and the performance and observance by the Issuer of its obligations under the Global Notes or the recoverability of any sum of interest, Payment or Missed Payment, if any, or principal due or to become due from the Issuer in respect of any Global Note. The Book-Entry Depositary shall at no time be liable for any act, default or omission of the Issuer under or in respect of the Notes. The Book-Entry Depositary shall not be accountable for the use or application by the Issuer of the proceeds with respect to the Notes. The Book-Entry Depositary shall at no time have any responsibility for, or obligation or liability in respect of, the financial condition, creditworthiness, affairs, status or nature of the Issuer.
SECTION 3.4. MONEY HELD IN TRUST. Money held by the Book-Entry Depositary in trust hereunder need not be segregated from other funds held by the Book-Entry Depositary, except to the extent required by law. The Book-Entry Depositary shall be under no obligation to invest or pay interest on any money received by it hereunder, except as otherwise agreed with the Depositary (or in the absence of such an agreement, with the Issuer).
SECTION 3.5. COMPENSATION AND REIMBURSEMENT. The Issuer agrees:
(a) to pay to the Book-Entry Depositary from time to time such compensation as agreed between them in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law with regard to the compensation of a Trustee of an express trust);
(b) to reimburse the Book-Entry Depositary and any predecessor Book-Entry Depositary upon its request for all reasonable and necessary expenses, disbursements and advances incurred or made by the Book-Entry Depositary in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel but excluding any ordinary administrative expenses and any overhead expense), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Book-Entry Depositary and any predecessor Book-Entry Depositary for, and to hold it harmless against, any loss, liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this Agreement and its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.
The Book-Entry Depositary shall notify the Issuer in writing of the commencement of any action or claim in respect of which indemnification may be sought promptly after the Book-Entry Depositary becomes aware of such commencement (provided that the failure to make such notification shall not affect the Book-Entry Depositary's rights hereunder) and the Issuer shall be entitled to participate in, and to the extent it shall wish, to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Book-Entry Depositary. The Book-Entry Depositary shall not compromise or settle any such action or claim without the written consent of the Issuer, which consent shall not be unreasonably withheld or delayed.
The obligations of the Issuer under this Section to compensate and indemnify the Book-Entry Depositary and any predecessor Book-Entry Depositary and to pay or reimburse the Book-Entry Depositary and any predecessor Book-Entry Depositary for expenses, disbursements and advances shall survive the repayment of the Notes, resignation or removal of the Book-Entry Depositary and satisfaction, discharge or other termination of this Agreement.
SECTION 3.6. BOOK-ENTRY DEPOSITARY REQUIRED; ELIGIBILITY. At all times when there is a Book-Entry Depositary hereunder, such Book-Entry Depositary shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, having, together with its parent, a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal, State or District of Columbia authority, willing to act on reasonable terms. Such corporation shall have its principal place of business in the Borough of Manhattan, The City of New York, if there be such a corporation in such location willing to act upon reasonable and customary terms and conditions. If such corporation, or its parent, publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Book-Entry Depositary with respect to a Global Note hereunder shall at all times be the Trustee with respect to such Notes of such Series under the relevant Indenture, subject to receipt of an Opinion of Counsel that the same Person is precluded by law from acting in such capacities. If at any time the Book-Entry Depositary shall cease to be eligible in accordance with the provisions of the Section, it shall resign immediately in the manner and with the Effect hereinafter specified in this Article.
SECTION 3.7. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Book-Entry Depositary with respect to a Global Note and, in the case of (i) below, no appointment of a successor Book-Entry Depositary with respect to a Global Note pursuant to this Article shall become effective until (i) the acceptance of appointment by the successor Book-Entry Depositary with respect to such Global Note in accordance with the applicable requirements of Section 3.08 hereof or (ii) the issuance of Definitive Notes with respect to all Outstanding Notes of the relevant Series in accordance with Section 2.04 hereof.
(b) The Book-Entry Depositary may resign with respect to a Global Note by giving written notice thereof to the Issuer and the Depositary, in accordance with Section 4.01 and Section 4.02, 60 days prior to the effective date of such resignation. The Book-Entry Depositary may be removed with respect to a Global Note at any time upon 90 days' notice by the filing with it of an instrument in writing signed on behalf of the Issuer and specifying such removal and the date when it is intended to become effective.
(c) If at any time
(i) the Book-Entry Depositary shall cease to be eligible under Section 3.06 hereof and shall fail to resign after written request therefor by the Issuer or by the Depositary, or
(ii) the Book-Entry Depositary shall become incapable of acting with respect to any Certificateless Depositary Interest or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Book-Entry Depositary or of its property shall be appointed or any public officer shall take charge or control of the Book-Entry Depositary or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer may immediately remove the Book-Entry Depositary and appoint a successor Book-Entry Depositary or (ii) the Depositary or Book-Entry Depositary may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Book-Entry Depositary and the appointment of a successor Book-Entry Depositary or Book-Entry Depositaries unless Definitive Notes have been issued with respect to all Outstanding Notes of all Series in accordance with the relevant Indenture. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Book-Entry Depositary and appoint a successor Book-Entry Depositary.
(a) If the Book-Entry Depositary shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Book-Entry Depositary, in each case, with respect to any Global Note for any cause, the Issuer shall promptly appoint a successor Book-Entry Depositary (other than the Issuer) with respect to such Global Note and shall comply with the applicable requirements of Section 3.08 hereof. If no successor Book-Entry Depositary with respect to such Global Note shall have been so appointed by the Issuer and accepted appointment in the manner required by Section 3.08, the Depositary or Book-Entry Depositary may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Book-Entry Depositary with respect to such Global Note unless Definitive Notes with respect to all Outstanding Notes of the relevant Series have been issued in accordance with the relevant Indenture.
(b) The Issuer shall give, or shall cause such successor Book-Entry Depositary to give, notice of each resignation and each removal of a Book-Entry Depositary and each appointment of a successor Book-Entry Depositary to the Depositary in accordance with Section 4.02 hereof. Each notice shall include the name of the successor Book-Entry Depositary and the address of its Corporate Trust Office. If the Issuer fails to give notice within ten days after acceptance of appointment by the successor Book-Entry Depositary, the successor Book-Entry Depositary shall cause such notice to be given at the expense of the Issuer.
SECTION 3.8. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Book-Entry Depositary with respect to any Global Note, every such successor Book-Entry Depositary so appointed shall execute, acknowledge and deliver to the Issuer and to the retiring Book-Entry Depositary with respect to such Global Note an instrument accepting such appointment with respect to such Global Note, and thereupon the resignation or removal of the retiring Book-Entry Depositary with respect to such Global Note shall become effective and such successor Book-Entry Depositary with respect to such Global Note, without any further act, deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Book-Entry Depositary with respect to such Global Note, with like effect as if originally named as Book-Entry Depositary with respect to such Global Note hereunder; provided, however, on the request of the Issuer or the successor Book-Entry Depositary, such retiring Book-Entry Depositary shall, upon payment of all amounts due and payable to it pursuant to Section 3.05 hereof, execute and deliver an instrument transferring to such successor Book-Entry Depositary all the rights and powers of the retiring Book-Entry Depositary with respect to such Global Note and shall duly assign, transfer and deliver to such successor Book-Entry Depositary all property and money held by such retiring Book-Entry Depositary with respect to such Global Note hereunder and shall deliver such Global Note to the successor.
(b) Upon request of any such successor Book-Entry Depositary, the Issuer shall execute any and all instruments necessary for more fully and certainly vesting in and confirming to such successor Book-Entry Depositary all such rights, powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Book-Entry Depositary shall accept its appointment unless at the time of such acceptance such successor Book-Entry Depositary shall be eligible under this Article.
(d) Upon acceptance of appointment by any successor Book-Entry Depositary as provided in this Section, the Issuer shall give notice thereof to the Depositary in accordance with Section 4.02 hereof. If the acceptance of appointment is substantially contemporaneous with the resignation of the Book-Entry Depositary, the notice called for by the preceding sentence may be combined with the notice called for by Section 3.07 hereof. If the Issuer fail to give such notice within 15 days after acceptance of appointment by the successor Book-Entry Depositary, the successor Book-Entry Depositary shall promptly cause such notice to be given at the expense of the Issuer.
SECTION 3.9. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any corporation into which the Book-Entry Depositary may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Book-Entry Depositary shall be a party, or any corporation succeeding to all or substantially all the agency business of the Book-Entry Depositary, shall be the successor of the Book-Entry Depositary hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto. Written notice of any merger, conversion, consolidation or sale shall forthwith be given to the Issuer and the Depositary.
SECTION 3.10. MAY HOLD NOTES; OTHER. The Book-Entry Depositary may own and deal in any class of securities of the Issuer and its affiliates and in the Notes and Book-Entry Notes. The Book-Entry Depositary may enter into other dealings with the Issuer of any nature whatsoever.
ARTICLE 4
MISCELLANEOUS PROVISIONS
SECTION 4.1. NOTICES TO BOOK-ENTRY DEPOSITARY OR ISSUER. Any request, demand, authorization, direction, notice, consent, or waiver or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with,
(a) the Book-Entry Depositary by the Depositary, the Trustee or the Issuer shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and delivered or mailed and received, first-class postage prepaid, to the Book-Entry Depositary at its Corporate Trust Office, Attention: Corporate Trust Trustee Administration Department, or at any other address previously furnished in writing by the Book-Entry Depositary to the Depositary, the Trustee or the Issuer, or
(b) the Issuer by the Book-Entry Depositary shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and delivered or mailed and received, first-class postage prepaid, to 10 Lower Thames Street, London EC3R 6A3, England; Attention: Company Secretary, or at any other address previously furnished in writing to the Book-Entry Depositary by the Issuer.
SECTION 4.2. NOTICE TO DEPOSITARY AND OWNERS; WAIVER. Where this Agreement provides for notice to the Depositary or owners of Book-Entry Notes of a Series of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided or as provided in the Letter of Representations) if in writing and mailed, first-class postage prepaid, to the Depositary at the address notified to the Book-Entry Depositary, in each case not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Where this Agreement provided for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by the Depositary shall be filed with the Book-Entry Depositary, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Book-Entry Depositary shall constitute a sufficient notification for every purpose hereunder.
SECTION 4.3. EFFECT OF HEADING AND TABLE OF CONTENTS. The Article and
Section headings herein are for convenience only and shall not affect the
construction hereof.
SECTION 4.4. SUCCESSORS AND ASSIGNS. All covenants and agreements in this Agreement by the Issuer shall bind their successors and assigns, whether so expressed or not.
SECTION 4.5. SEPARABILITY CLAUSE. In case any provision in this Agreement or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.
SECTION 4.6. BENEFITS OF AGREEMENT. Nothing in this Agreement, the Notes, or the Indentures, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefits or any legal or equitable right, remedy or claim under this Agreement. The owners from time to time of the Book-Entry Notes of each Series shall be parties to this Agreement and shall be bound by all of the terms and conditions hereof and of the relevant Indenture and the Notes of such Series, by their acceptance of delivery of the Book-Entry Notes of such Series.
SECTION 4.7. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable principles of conflicts of law thereof.
SECTION 4.8. JURISDICTION. By the execution and delivery of this Agreement, the Issuer submits to the jurisdiction of any such court in any such suit or proceeding, and, to the fullest extent permitted under applicable law, waives any objection which it may now or hereafter have to the laying of venue of any such proceeding or any claim of inconvenient forum.
SECTION 4.9. COUNTERPARTS. This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.
SECTION 4.10. INSPECTION OF AGREEMENT. A copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office of the Book-Entry Depositary for inspection by any owner of Book-Entry Notes.
SECTION 4.11. SATISFACTION AND DISCHARGE. This Agreement upon an Issuer
Request shall cease to be of further effect with respect to the Notes of such
Series, and the Book-Entry Depositary, at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Agreement with respect to such Notes of a Series, when (i) with respect to the
Notes of such Series the relevant Indenture has been satisfied and discharged
pursuant to the provisions thereof or Definitive Notes have been issued and the
relevant Global Note has been cancelled in accordance with the provisions of
Section 2.04 or 2.05, (ii) the Issuer has paid or caused to be paid all sums
payable hereunder by the Issuer with respect to the Notes and (iii) the Issuer
has delivered to the Book-Entry Depositary an Officers' Certificate and an
Opinion of Counsel, stating that all conditions precedent herein provided
relating to the satisfaction and discharge of this Agreement with respect to the
Notes of such Series have been complied with.
SECTION 4.12. AMENDMENTS. The Issuer and the Book-Entry Depositary may amend this Agreement without the consent of the Depositary or the owners of any Book-Entry Notes of a Series:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to add to the covenants and agreements of the Book-Entry Depositary or the Issuer;
(c) to evidence or effectuate the assignment of the Book-Entry Depositary's rights and duties to a qualified successor, as provided herein;
(d) to comply with any requirements of the U.S. Securities Act of 1933, as amended, the Exchange Act, the U.S. Investment Company Act of 1940, as amended, the TIA or any other applicable law, rule or regulation; or
(e) to modify, alter, amend or supplement this Agreement in any other manner that is not adverse to the Depositary or the owners of Book-Entry Notes of such Series.
No amendment that adversely affects the Depositary may be made to this Agreement or the Book-Entry Notes of a Series without the consent of the Depositary.
SECTION 4.13. BOOK-ENTRY DEPOSITARY TO EXECUTE AMENDMENTS. The Book-Entry Depositary shall duly execute and deliver any amendment authorized pursuant to Section 4.12 if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Book-Entry Depositary. If it does, the Book-Entry Depositary may but need not execute and deliver such amendment. In executing and delivering such amendment the Book-Entry Depositary shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and shall be fully protected in reasonably relying upon, an Officers' Certificate (which need only cover the matters set forth in clause (a) below) and an Opinion of Counsel stating that:
(a) such amendment is authorized or permitted by this Agreement;
(b) the Issuer has all necessary corporate power and authority to execute and deliver the amendment and that the execution, delivery and performance of such amendment has been duly authorized by all necessary corporate action;
(c) the execution, delivery and performance of the amendment do not conflict with, or result in the breach of or constitute a default under any of the terms, conditions or provisions of (i) this Agreement, (ii) the Memorandum and Articles of Association of the Issuer or (iii) any law or regulation applicable to the Issuer; and
(d) such amendment has been duly and validly executed and delivered by the Issuer, and this Agreement together with such amendment constitutes a legal, valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and general equitable principles.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.
HSBC HOLDINGS PLC
By:
Name:
Title:
[BOOK-ENTRY DEPOSITARY]
By:
Name:
Title:
Form of ADR Deposit Agreement
HSBC HOLDINGS PLC
and
THE BANK OF NEW YORK
As Depositary
and
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of o, 2002
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS........................................................1
SECTION 1.01. "American Depositary Receipt" or "Receipt"....................1
SECTION 1.02. "American Depositary Shares"..................................2
SECTION 1.03. "Beneficial Owner"............................................2
SECTION 1.04. "Business Day"................................................2
SECTION 1.05. "Commission"..................................................2
SECTION 1.06. "Company".....................................................2
SECTION 1.07. "Corporate Trust Office"......................................2
SECTION 1.08. "Custodian"...................................................2
SECTION 1.09. "Deposit Agreement"...........................................3
SECTION 1.10. "Depositary"..................................................3
SECTION 1.11. "Deposited Securities"........................................3
SECTION 1.12. "Dollars" or "$"..............................................3
SECTION 1.13. "Foreign Registrar"...........................................3
SECTION 1.14. "Holder"......................................................3
SECTION 1.15. "Registrar"...................................................3
SECTION 1.16. "Restricted Securities".......................................3
SECTION 1.17. "Securities Act"..............................................4
SECTION 1.18. "Securities Exchange Act".....................................4
SECTION 1.19. "Series"......................................................4
SECTION 1.20. "Shares"......................................................4
ARTICLE II. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.............................................5
SECTION 2.01. Form and Transferability of Receipts..........................5
SECTION 2.02. Deposit of Shares.............................................6
SECTION 2.03. Execution and Delivery of Receipts............................7
SECTION 2.04. Transfer of Receipts..........................................8
SECTION 2.05. Combinations and Split-ups of Receipts........................8
SECTION 2.06. Surrender of Receipts and Withdrawals of Shares...............9
SECTION 2.07. Limitations on Execution and Delivery, Registration of
Transfer and Surrender of Receipts.........................................10
SECTION 2.08. Lost Receipts, etc...........................................11
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts.........11
SECTION 2.10. Pre-Release of Shares and Receipts...........................11
ARTICLE III. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.......................13
SECTION 3.01. Filing Proofs, Certificates and Other Information............13
SECTION 3.02. Liability of Holders for Taxes...............................13
SECTION 3.03. Warranties on Deposit of Shares..............................14
SECTION 3.04. Disclosure of Interests......................................14
ARTICLE IV. THE DEPOSITED SECURITIES..........................................14
SECTION 4.01. Cash Distributions...........................................14
SECTION 4.02. Distribution Other Than Cash, Shares or Rights...............15
SECTION 4.03. Distribution in Shares.......................................15
SECTION 4.04. Rights.......................................................16
SECTION 4.05. Conversion of Foreign Currency...............................17
SECTION 4.06. Fixing of Record Date........................................18
SECTION 4.07. Voting of Deposited Securities...............................19
SECTION 4.08. Changes Affecting Deposited Securities, Reclassification
Recapitalizations, etc.....................................................19
SECTION 4.09. Statutory Reports............................................20
SECTION 4.10. List of Holders..............................................20
SECTION 4.11. Withholding..................................................20
ARTICLE V. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY......................21
SECTION 5.01. Maintenance of Offices and Transfer Books by the Depositary..21
SECTION 5.02. Prevention or Delay in Performance by the Depositary the
Custodian or the Company...................................................21
SECTION 5.03. Obligations of the Depositary the Custodian and the Company..22
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary....................................................23
SECTION 5.05. The Custodian................................................23
SECTION 5.06. Notices and Reports..........................................24
SECTION 5.07. Distribution of Additional Shares, Rights, etc...............25
SECTION 5.08. Indemnification..............................................25
SECTION 5.09. Charges and Expenses.........................................26
SECTION 5.10. Retention of Depositary Documents............................27
SECTION 5.11. Exclusivity..................................................27
SECTION 5.12. List of Restricted Securities Owners.........................27
ARTICLE VI. AMENDMENT AND TERMINATION.........................................28
SECTION 6.01. Amendment....................................................28
SECTION 6.02. Termination..................................................28
ARTICLE VII. MISCELLANEOUS....................................................29
SECTION 7.01. Counterparts.................................................29
SECTION 7.02. Agreement for Exclusive Benefit of Parties...................29
SECTION 7.03. Severability.................................................30
SECTION 7.04. Notices......................................................30
SECTION 7.05. Holders and Beneficial Owners of Receipts are Parties........30
SECTION 7.06. Governing Law................................................30
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of o, 2002 (as herein defined) among HSBC Holdings plc, a company incorporated under the laws of England (the "Company"), The Bank of New York, a New York banking corporation, as Depositary (the "Depositary"), and all Holders and Beneficial Owners from time to time of American Depositary Receipts issued hereunder.
WITNESSETH
WHEREAS, the Issuer has duly authorized the issue from time to time of Shares (as defined herein), to be issued in one or more series and with such terms and provisions as shall be specified in or pursuant to one or more resolutions of its Board of Directors or an authorized committee thereof; and
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of Shares of the Company from time to time with the Depositary or with the Custodian as agent for the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of American Depositary Receipts evidencing American Depositary Shares of one or more corresponding series representing Shares of each series so deposited; and
WHEREAS, the Issuer may from time to time issue Shares of more than one Series and offer and sell such Shares together ("Shares Units"), and in connection therewith, the Issuer desires to provide for the deposit of Share Units with the Depositary or the Custodian, for the creation of a Series of American Depositary Shares corresponding to each Series of Shares comprising such Share Units and for the execution and delivery, on one certificate, of American Depositary Receipts corresponding to each such Series of Shares and evidencing American Depositary Shares which, when taken as a whole, represent whole Share Units; and
WHEREAS, the American Depositary Receipts of each series are to be substantially in the form of Exhibit A or, in the case of Share Units, Exhibit B, annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and between the parties hereto as follows:
ARTICLE I. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. "American Depositary Receipt" or "Receipt".
"American Depositary Receipt" or "Receipt" means a receipt issued pursuant to this Deposit Agreement substantially in the form of Exhibit A hereto or, in the case of share units, in the form of Exhibit B hereto, evidencing American Depositary Shares representing Deposited Securities.
SECTION 1.02. "American Depositary Shares".
"American Depositary Shares" means the securities evidenced by the Receipts of any Series issued hereunder and the rights and interests evidenced by the Receipts in such Series in the Deposited Securities represented thereby. Each American Depositary Share of any Series shall represent the right to receive one (or a fraction or multiple of one) Share of the corresponding Series until there shall occur a distribution upon Deposited Securities covered by Section 4.03 or a change in Deposited Securities covered by Section 4.08 with respect to which additional Receipts are not executed and delivered, and thereafter; each American Depositary Share of such Series shall represent the amount of Shares of the corresponding Series or Deposited Securities of the corresponding Series specified in such Sections.
SECTION 1.03. "Beneficial Owner".
"Beneficial Owner", with respect to a Receipt, means any person who has a beneficial interest in the American Depositary Shares evidenced by such Receipt.
SECTION 1.04. "Business Day".
"Business Day" means any day on which banks in both (i) New York, New York and (ii) London, England are not required or authorized by law to close.
SECTION 1.05. "Commission".
"Commission" means the Securities and Exchange Commission of the United States or any successor governmental agency in the United States.
SECTION 1.06. "Company".
"Company" means HSBC Holdings plc, a company incorporated under the laws of England and Wales, having its registered office at 8 Canada Square, London E14 5HQ and its successors.
SECTION 1.07. "Corporate Trust Office".
"Corporate Trust Office," when used with respect to the Depositary, means the office of the Depositary at which its corporate trust business shall, at any particular time, be principally administered, which office is, at the date of this Deposit Agreement, 101 Barclay Street, New York, New York 10286.
SECTION 1.08. "Custodian"
"Custodian" means, at the date of this Deposit Agreement, the London office of The Bank of New York, and any other firm or corporation which may be appointed by the Depositary as a substitute or additional custodian hereunder pursuant to the terms of Section 5.05.
SECTION 1.09. "Deposit Agreement".
"Deposit Agreement" means this Deposit Agreement, as the same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.10. "Depositary".
"Depositary" means The Bank of New York, a New York banking
corporation, and any successor as depositary hereunder pursuant to the terms of
Section 5.04.
SECTION 1.11. "Deposited Securities".
"Deposited Securities" as of any time means Shares of the corresponding Series at such time deposited or deemed to be deposited (including any Shares deposited pursuant to Section 2.10 hereof) under this Deposit Agreement and any and all other securities, property and cash received by the Depositary or the Custodian in respect or in lieu of such Shares deposited or deemed to be deposited and at such time held hereunder, subject with respect to cash to the provisions of Section 4.05.
SECTION 1.12. "Dollars" or "$".
"Dollars" or "$" means U.S. dollars; "Pounds" or "(pound)" shall mean pounds sterling of the United Kingdom and the term "pence" or "p" shall mean pence of the United Kingdom; "Euro" or "(euro)" shall mean the single currency adopted by those states participating in the European Monetary Union from time to time.
SECTION 1.13. "Foreign Registrar".
"Foreign Registrar" means the entity that presently carries out the duties of registrar for the Shares or any successor as registrar for the Shares and any other appointed agent of the Company for the transfer and registration of the Shares.
SECTION 1.14. "Holder".
"Holder", with respect to a Receipt means the person in whose name such Receipt is registered on the books of the Depositary.
SECTION 1.15. "Registrar".
"Registrar" means the Depositary or any bank or trust company having an office in the Borough of Manhattan, The City of New York, appointed by the Depositary to register Receipts and transfers of Receipts as herein provided.
SECTION 1.16. "Restricted Securities".
"Restricted Securities" means Shares, or Receipts representing such Shares, which are acquired directly or indirectly from the Company or its affiliates (as defined in Rule 144 under the Securities Act of 1933) in a transaction or chain of transactions not involving any public offering or which are subject to resale limitations under Regulation D under that Act or both, or which are held by an officer, director (or persons performing similar functions) or other affiliate of the Company, or which would require registration under the Securities Act in connection with the offer and sale thereof in the United States, or which are subject to other restrictions on sale or deposit under the laws of the United States or the United Kingdom, or under a shareholder agreement or the Articles of Association and By-laws of the Company.
SECTION 1.17. "Securities Act".
"Securities Act" means the U.S. Securities Act of 1933, as from time to time amended.
SECTION 1.18. "Securities Exchange Act".
"Securities Exchange Act" means the U.S. Securities Exchange Act of 1934, as from time to time amended.
SECTION 1.19. "Series".
"Series" shall mean, (a) with respect to Shares, all Shares
(1) having identical nominal value per share, dividend rights, liquidation value
per share, voting rights, redemption provisions and other rights, preferences,
privileges, limitations and restrictions and (2) designated by the Issuer by or
pursuant to a Board Resolution as constituting a single series of Shares; (b)
with respect to Deposited Securities, the Shares of the corresponding Series at
such time deposited under this Deposit Agreement and any and all other Deposited
Securities in respect of deposited Shares of such Series; (c) with respect to
American Depositary Shares, the American Depositary Shares representing
Deposited Securities of the corresponding Series; and (d) with respect to
Receipts, the Receipts evidencing American Depositary Shares of the
corresponding Series.
SECTION 1.20. "Shares".
"Shares" means Dollar-denominated Preference Shares of any Series in registered form of the Company, heretofore validly issued and outstanding and fully paid, nonassessable and free of any preemptive rights of the holders of outstanding Shares of any Series or hereafter validly issued and outstanding and fully paid, nonassessable and free of any preemptive rights of the holders, of outstanding Shares of any Series or interim certificates representing such Shares of any Series; provided, however, that if there shall occur any change in nominal value, a subdivision or consolidation or any other reclassification or, upon the occurrence of any event described in Section 4.08, an exchange or conversion in respect of the Shares of any Series, the term "Shares" of any Series shall thereafter represent the successor securities resulting from such change in nominal value, sub-division, consolidation or such other reclassification or such exchange or conversion. Reference to Shares of any Series shall, subject to Section 2.10 hereof, include evidence of rights to receive Shares of any Series.
ARTICLE II. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts.
Receipts shall be issued in one or more Series, each of which shall correspond to, and evidence interests in, American Depositary Shares of the corresponding Series. A separate Series of Receipts shall be issued hereunder to correspond to each separate Series of Shares deposited hereunder. Definitive Receipts of each Series shall be substantially in the form set forth in Exhibit A annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided. Receipts may be issued in denominations of any whole number of American Depositary Shares, except that Receipts corresponding to each Series of Shares that are components of Share Units shall be substantially in the form set forth in Exhibit B hereto with such insertions, modifications and omissions, as hereinafter provided. Definitive Receipts of all such Series executed and delivered to or upon the order of any person or persons, whether upon deposit or in connection with a transfer, split-up, combination or partial withdrawal of Deposited Securities, will be printed on the same certificate and all the Receipts printed thereon will evidence American Depositary Shares which, when taken as a whole, will represent whole Share Units. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose, unless it shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized signatory of the Depositary; provided, however, that such signature may be a facsimile if a Registrar for the Receipts of any Series shall have been appointed and such Receipts are countersigned by the manual signature of a duly authorized officer of the Registrar. The Depositary shall maintain books, as hereinafter provided, on which each Receipt of such Series so signed and delivered and the transfer of each such Receipt shall be registered. Receipts bearing the manual or facsimile signature of a duly authorized officer of the Depositary who was at any time an authorized signatory of the Depositary shall bind the Depositary, notwithstanding that such signatory has ceased to hold such office prior to the execution and delivery of such Receipts by the Registrar or did not hold such office at the date of issuance of such Receipts.
Each Receipt shall indicate on the face thereof the Series of Receipts of which it is a part, the Series of American Depositary Shares evidenced thereby and the Series of Shares represented by such Series of American Depositary Shares and may be endorsed with or have incorporated in the text thereof such legends or recitals or changes, including requirements with respect to registration of transfer, not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or the Company to comply with any applicable laws or regulations or with the rules and regulations of any securities exchange upon which the Receipts or the American Depositary Shares may be listed, or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject by reason of the date or manner of issuance of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced thereby), when properly endorsed or accompanied by a properly executed instrument of transfer and transferred in accordance with the terms of this Deposit Agreement, including, without limitation, Section 2.04 and 2.07, shall be transferable by delivery, with the same effect as in the case of a negotiable instrument; provided, however, that the Company and the Depositary, notwithstanding any notice to the contrary, may treat the Holder of a Receipt as the absolute owner thereof for all purposes.
SECTION 2.02. Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares of any Series or Shares of more than one Series or evidence of rights to
receive such Shares to the extent permitted by Section 2.10 may be deposited by
delivery thereof (including as Share Units) to the Custodian, accompanied by an
appropriate instrument or instruments of transfer or endorsement, in form
satisfactory to the Custodian, together with all such certifications and
payments as may be required by the Depositary or the Custodian in accordance
with the provisions of this Deposit Agreement, and, if the Depositary requires,
together with a written order, directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such order, a
Receipt or Receipts of the corresponding Series for the number of American
Depositary Shares of the corresponding Series representing such deposited
Shares, provided, however, that neither the Depositary nor the Custodian shall
be obligated to accept for deposit under this Deposit Agreement Shares of a
particular Series if the Depositary determines, in its reasonable judgment after
consultation with the Company, that the acceptance and maintenance of deposits
of Shares of such Series or the discharge by the Depositary or the Custodian of
its obligations hereunder with respect to Shares of such Series deposited
hereunder or American Depositary Shares or Receipts of a corresponding Series
would, by virtue of the terms and provisions of such Series of Shares, impose
unusually onerous burdens on the Depositary or the Custodian (save that if the
Depositary has accepted any Shares of such series, it must, subject to the other
terms hereof, accept for deposit further Shares of such series). The Company
agrees that if Shares of more than one Series are to be issued by the Company
and deposited by it as Share Units under the Deposit Agreement (i) the Board of
Directors of the Company or an authorized committee thereof will (A) specify
each Series of Shares that are to be so deposited, (B) specify the number of
Shares of each such specified Series that will be included in a Share Unit and
(C) assign a designation to the Shares of each such Series that will distinguish
each such Series of Shares from the Shares of any other Series that may be
deposited as Share Units, and (ii) the Company will only deposit the Shares of
any Series so designated as Share Units.
No Share shall be accepted for deposit unless accompanied by evidence satisfactory to the Depositary that any necessary approval has been granted by any governmental agency in the United Kingdom which is then performing the function of regulation of currency exchange.
If required by the Depositary, Shares of a particular Series presented for deposit at any time, whether or not the transfer books of the Company (or of the Foreign Registrar) are closed, shall also be accompanied by an agreement or assignment, or other instrument satisfactory to the Depositary, which will provide for the prompt transfer to the Custodian of any dividend or right to subscribe for additional Shares of such Series or to receive other property which any person in whose name the Shares are or have been registered may thereafter receive upon or in respect of such deposited Shares, or in lieu thereof, such agreement of indemnity or other agreement as shall be satisfactory to the Depositary. The Depositary may also require that any Shares including Shares of any Series that are components of a Share Unit deposited be registered in the name of the Custodian or its nominee or such other name as the Depositary shall require.
At the request and risk and expense of any person proposing to deposit Shares, and for the account of such person, the Depositary may receive Shares to be deposited, together with the other instruments herein specified, for the purpose of forwarding such Shares to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of Shares of any Series to be deposited hereunder together with the other documents above specified, such Custodian shall, as promptly as registration of transfer can be accomplished, present such Shares of any Series to the Company or the Foreign Registrar, if applicable, for registration of transfer and recordation of the Shares of such Series or other Deposited Securities being deposited in the name of the Depositary or its nominee or such Custodian or its nominee at the cost and expense of the person making such deposit (or for whose benefit such deposit is made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Depositary or by a Custodian for the account and to the order of the Depositary, or at such other place or places as the Depositary shall determine.
SECTION 2.03. Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit in accordance with the provisions of Section 2.02 (and, in addition, if the transfer books of the Company or the Foreign Registrar are open, the Depositary may in its sole discretion require a proper acknowledgment or other evidence from the Company or the Foreign Registrar, as the case may be, that any Deposited Securities have been recorded upon the books of the Company or the Foreign Registrar, in the name of the Depositary or its nominee or such Custodian or its nominee), together with the other documents required as specified above, such Custodian shall promptly notify the Depositary of such deposit and of the name or names of the person or persons to whom or upon whose written order a Receipt or Receipts of the corresponding Series are deliverable in respect thereof, the office of the Depositary at which such Receipts are to be delivered and the number of American Depositary Shares of the corresponding Series to be evidenced thereby. Such notification shall be made in writing and mailed, first class air mail postage prepaid, or, at the request, risk and expense of the person making the deposit, by cable, or telex or facsimile transmission.
Upon receiving such notice from the Custodian, or upon receipt
of Shares of such Series or Share Units by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall, as
promptly as practicable, execute and deliver at its Corporate Trust Office to or
upon the order of the person or persons entitled thereto, (i) a Receipt or
Receipts of the Series of such deposited Shares or (ii) in the case of a deposit
of Share Units, a Receipt or Receipts of the Series corresponding to each Series
of Shares comprising such Share Units, registered in such name or names as
requested by such person or persons entitled thereto evidencing the number of
American Depositary Shares of the corresponding Series requested by such person
or persons but only upon payment to the Depositary of the fees of the Depositary
for the execution and delivery of such Receipt or Receipts as provided in
Section 5.09, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited Securities.
Delivery at offices other than the Depositary's Corporate Trust Office shall be
at the risk and expense of the person requesting such delivery.
SECTION 2.04. Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the Depositary shall register transfers of Receipts of a particular Series on its transfer books from time to time, upon any surrender at its designated transfer offices of a Receipt of such Series by the Holder in person or by a duly authorized attorney properly endorsed or accompanied by a properly executed instrument of transfer, and duly stamped as may be required by the laws of the State of New York and any other applicable law. Thereupon the Depositary shall execute a new Receipt or Receipts of such Series and deliver the same to or upon the order of the person entitled thereto evidencing the same aggregate number of American Depositary Shares as those evidenced by the Receipt or Receipts of such Series surrendered.
The Depositary may appoint one or more co-transfer agents for
the purpose of effecting transfers (or combinations and split-ups as under
Section 2.05) of Receipts of a particular Series at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Holders, Beneficial Owners or other persons entitled to such
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
Notwithstanding anything to the contrary herein and unless otherwise agreed to by the Issuer and the Depositary with respect to, and prior to the issuance of, Shares of a Series that are components of a Share Unit, the transfer of a Receipt representing Shares of a Series that is a component of a Share Unit will only be registered if it is transferred with Receipts of all other such Series printed on the same certificate and the American Depositary Shares to be transferred evidenced by all such Receipts, taken as a whole, represent whole Share Units. Each such Receipt will state on the face thereof that it must be transferred with Receipts of all other such Series.
SECTION 2.05. Combinations and Split-ups of Receipts.
Upon surrender of a Receipt or Receipts of a particular Series at the Depositary's designated transfer offices for the purpose of effecting a split-up or combination of such Receipt or Receipts, and subject to the terms and conditions of this Deposit Agreement, the Depositary shall execute and deliver a new Receipt or Receipts of such Series for the number of American Depositary Shares of the corresponding Series requested, evidencing the same aggregate number of American Depositary Shares of the corresponding Series evidenced by the Receipt or Receipts surrendered.
SECTION 2.06. Surrender of Receipts and Withdrawals of Shares.
Upon surrender of Receipts at the Depositary's Corporate Trust Office, or at such other offices as the Depositary may designate, for the purpose of withdrawal of the Deposited Securities represented by the American Depositary Shares evidenced thereby, and upon payment of the fees and expenses of the Depositary for the cancellation of Receipts as provided in Section 5.09 and payment of all taxes and other governmental charges payable in connection with such surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of the Company's Articles of Association, the Deposited Securities and this Deposit Agreement, and to any other restriction applicable thereto, the Holder of such Receipts shall be entitled to delivery, to or upon the order of such Holder, of the Shares and any other Deposited Securities at the time represented by Receipts. Delivery of such Deposited Securities may be made by the delivery of (a) certificates in the name of such Holder or as ordered by such Holder or by the delivery of certificates properly endorsed or accompanied by proper instruments of transfer to such Holder or as ordered by such Holder and (b) of any other securities, property and cash to which such Holder is then entitled in respect of the Receipts. Such delivery shall be made, as hereinafter provided, without unreasonable delay.
Receipts surrendered for such purposes may be required by the Depositary to be properly endorsed in blank or accompanied by a properly executed instrument of transfer in blank, and if the Depositary so requires, the Holder thereof shall execute and deliver to the Depositary a written order directing the Depositary to cause the Shares and any other Deposited Securities being withdrawn to be delivered to or upon the written order of a person or persons designated in such order. Thereupon the Depositary shall direct the Custodian to deliver at the Custodian's office, subject to Sections 2.07, 3.01 and 3.02, and to the other terms and conditions of this Deposit Agreement, to or upon the written order of the person or persons designated in the order delivered to the Depositary as above provided, the amount of Shares and any other Deposited Securities represented by such Receipts, except that, at the request, risk and expense of the Holder, the Depositary may make delivery to such person or persons at its Corporate Trust Office or at such other place as may have been designated for such purpose by the Depositary of any dividends or distributions with respect to the Shares and any other Deposited Securities represented by such Receipts, or of any proceeds of sale of any such dividends, distributions or rights, which may at the time be held by the Depositary. Such direction shall be given by letter or, at the risk and expense of the Holder, by cable, telex or facsimile transmission.
Neither the Depositary nor the Custodian shall deliver Shares, by physical delivery, book-entry or otherwise (other than to the Company or its agent as contemplated by Section 4.08), or otherwise permit Shares to be withdrawn from the facility created hereby, except upon the receipt and cancellation of Receipts.
At the request, risk and expense of any Holder so surrendering Receipts, and for the account of such Holder, the Depositary shall direct the Custodian to forward any cash or other property (other than rights) and the certificate or certificates and other proper documents of title for the amount of Shares and any other Deposited Securities represented by such Receipts for delivery at its Corporate Trust Office or at such other place as may be reasonably requested by the Holder. Such direction shall be given in writing and mailed, first class air mail postage prepaid, or, at the risk and expense of such Holder, by cable, telex or facsimile transmission.
Notwithstanding the foregoing and unless otherwise agreed to between the Depositary and the Issuer, Deposited Securities represented by American Depositary Shares representing Shares of a Series that is a component of a Share Unit may only be withdrawn if the Shares represented thereby are withdrawn with the Shares represented by each other Series of American Depositary Shares representing Shares of all other Series comprising such Share Unit and, in each case, as whole Share Units.
SECTION 2.07. Limitations on Execution and Delivery, Registration of Transfer and Surrender of Receipts.
As a condition precedent to the execution and delivery, registration of transfer, split-up, combination or surrender of any Receipt, the delivery of any distribution thereon, or withdrawal of any Deposited Securities, the Depositary, the Company, the Custodian and the Foreign Registrar, if applicable, may require (a) payment from the depositor of Shares or the presenter of the Receipt of a sum sufficient to pay for (i) any tax or other governmental charge and any stock transfer or registration fees in respect of Receipts or with respect to the Receipts of such other Series as may be printed on the same certificate, (ii) any tax or other governmental charge and any stock transfer or registration fees in respect of registration of transfers of Shares or other Deposited Securities upon any applicable register and (iii) any fees of the Depositary as provided in Section 5.09; (b) the production of proof satisfactory to it as to the identity and genuineness of any signature and as to any other matter contemplated by Section 3.01; and (c) compliance with such reasonable regulations, if any, as the Depositary and Company may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts of a particular Series against deposits of Shares of the corresponding Series generally or against deposits of particular Shares of the corresponding Series may be suspended or the transfer of Receipts of a particular Series in particular instance, may be refused, or the registration of transfer of outstanding Receipts of a particular Series or the combination or split-up of Receipts of a particular Series, generally may be suspended, during any period when the transfer books of the Depositary or any register for such Shares or Series or other Deposited Securities are closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of this Deposit Agreement or the Receipts, or for any other reason. Notwithstanding any provision of this Deposit Agreement or the Receipts to the contrary, the surrender of outstanding Receipts and withdrawal of Deposited Securities may be suspended only for (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the deposit of Shares in connection with voting at a shareholders' meeting, or the payment of dividends, (ii) the payment of fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the Receipts or to the withdrawal of the Deposited Securities, or (iv) any other reason that may at any time be specified in paragraph I(A)(1) of the General Instructions to Form F-6, as from time to time in effect, or any successor provision thereto. Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under this Deposit Agreement any Shares of a particular Series which are required to be registered under the Securities Act unless a registration statement under the Securities Act is in effect as to such Shares.
SECTION 2.08. Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new Receipt of like form and
tenor and of the same Series in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed, lost or stolen Receipt, upon the Holder thereof (a) filing with the
Depositary (i) a request for such execution and delivery before the Depositary
has notice that any such Receipt has been acquired by a bona fide purchaser,
(ii) furnishing the Depositary with a sufficient indemnity bond and (b)
satisfying any other reasonable requirements imposed by the Depositary.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts.
All receipts surrendered to the Depositary shall be cancelled by the Depositary. The Depositary is authorized to destroy Receipts so cancelled. Cancelled Receipts shall not be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose.
SECTION 2.10. Pre-Release of Shares and Receipts.
The Depositary may issue Receipts of a Series against rights to receive Shares of a corresponding Series from the Company (or any agent of the Company recording Share ownership). No such issue of Receipts will be deemed a "Pre-Release" subject to the restrictions of the following paragraph.
The Depositary may execute and deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 (each such transaction is hereinafter referred to as a "Pre-Release"). The Depositary may, subject to the provisions of Section 2.06, deliver Shares of a Series upon the receipt and cancellation of Receipts of the corresponding Series which have been pre-released, whether or not such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such Receipt has been pre-released. The Depositary may receive Receipts of a Series in lieu of Shares of the corresponding Series in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written representation and agreement from the person to whom Receipts or Shares are to be delivered that such person, or its customer, beneficially owns the Shares or Receipts to be remitted, as the case may be, (b) at all times fully collateralized with cash or other collateral the Depositary deems appropriate, (c) terminable by the Depositary on five (5) business days' notice or less and (d) subject to such further indemnities and credit regulation as the Depositary deems appropriate. The number of Shares of a Series not deposited but represented by American Depositary Shares outstanding at any time as a result of Pre-Releases will not normally exceed thirty percent (30%) of the Shares of such Series deposited hereunder; provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as it deems appropriate, and may after consultation with the Company change such limit for purposes of general application. The Depositary will also set Dollar limits with respect to Pre-Release transactions to be entered into hereunder with any particular Pre-Release on a case-by-case basis as the Depositary deems appropriate. For purposes of enabling the Depositary to fulfill its obligations to the Holders under this Deposit Agreement, the collateral referred to in clause (b) above shall be held by the Depositary as security for the performance of the Pre-Releasee's obligations to the Depositary in connection with a Pre-Release transaction, including the Pre-Release's obligation to deliver Shares or Receipts upon termination of a Pre-Release transaction (and shall not, for the avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by it in connection with the foregoing.
SECTION 2.11. Redemption.
(a) If the Depositary receives a notice from or on behalf of the Company that Shares of any Series are called for redemption, the Depositary shall send to the Holders:
(i) a copy of that notice; and
(ii) a notice calling for the surrender of Receipts evidencing a number of American Depositary Shares representing the number of deposited Shares that the Company called for redemption.
(b) On or prior to the date set by the Company for the redemption, the Depositary shall deliver for redemption a number of deposited Shares represented by the American Depositary Shares evidenced by the Receipts that have been surrendered to the Depositary prior to that date pursuant to the Depositary's call for surrender. Thereafter, the Depositary shall deliver for redemption deposited Shares that the Company called for redemption but that the Depositary has not already surrendered hereunder, such delivery being without unreasonable delay after Receipts evidencing a number of American Depositary Shares representing those Shares are surrendered to the Depositary pursuant to the Depositary's call for surrender, provided that the Company shall be under no obligation hereunder to redeem any such further Shares so delivered.
(c) When the Depositary receives entitlements in respect of deposited Shares delivered by the Depositary for redemption, the Depositary shall cancel surrendered Receipts evidencing the corresponding number of American Depositary Shares and distribute those entitlements to the Holders entitled to them in accordance with applicable provisions of this Deposit Agreement, after deduction or upon payment of the fees and expenses of the Depositary applicable in the case of surrender of Receipts for the purpose of withdrawal of Deposited Securities. If the Depositary will distribute entitlements in respect of less than all the American Depositary Shares evidenced by a Receipt, the Depositary shall execute and deliver to the Holder of that Receipt a Receipt evidencing American Depositary Shares in respect of which it is not distributing entitlements.
(d) The Company is not entitled to exercise any right to redeem deposited Shares that form part of deposited Units of Shares unless it redeems whole deposited Units of Shares.
(e) If the Depositary receives a notice of redemption of less than all of the deposited Shares of any Series, the Depositary may determine which Receipts to call for surrender or what number of American Depositary Shares evidenced by any Receipt to call for surrender in any manner that it reasonably determines to be fair and practical.
ARTICLE III. CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Holder or Beneficial Owner may be required by the Depositary from time to time (i) to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, payment of applicable taxes or other governmental charges, legal or beneficial ownership of Receipts, Deposited Securities or other securities, compliance with all applicable laws or regulations or terms of this Deposit Agreement or the Receipts, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, or any other information the Depositary or the Company may deem necessary or appropriate to evidence compliance with all applicable laws and regulations, and (ii) to execute such certificates and to make such representations and warranties as the Depositary may deem necessary or proper or as the Company may reasonably request by written request to the Depositary. The Depositary may withhold the delivery or registration of transfer of any Receipt or the distribution of any dividend or distribution of rights or of the sale proceeds thereof or the delivery of any Deposited Securities until such proof or other information is filed or such certificates are executed or such representations and warranties are made to the Depositary's satisfaction, and if the Company so requests in writing to the Depositary, to the Company's satisfaction. The Depositary shall provide the Company, in a timely manner, with copies of any such proofs, certificates or other information upon written request by the Company, unless such disclosure is prohibited by law.
SECTION 3.02. Liability of Holders for Taxes.
If any tax or other governmental charge shall become payable with respect to any Receipt or with respect to any Deposited Securities represented by American Depositary Shares of any other Series evidenced by any Receipt, such tax or other governmental charge shall be payable by the Holder of such Receipt to the Depositary. The Depositary may deduct the amount of any taxes owed from any payments to the Holder. The Depositary may restrict or refuse to effect any transfer of such Receipt or any combination or split-up thereof or any withdrawal of Deposited Securities represented by American Depositary Shares evidenced thereby until such payment is made, and may withhold any dividends or other distributions or may sell any part or all of the Deposited Securities represented by American Depositary Shares evidenced by such Receipt and may apply such dividends or other distributions or the proceeds of any such sale to payment of such tax or other governmental charge (and any taxes or expenses arising out of such sale), the Holder of such Receipt remaining liable for any deficiency. If the Depositary sells deposited securities, it will, if appropriate, reduce the number of ADSs held by the Holder to reflect the sale and pay to the Holder any proceeds, or send to the Holder any property, remaining after it has paid the taxes.
SECTION 3.03. Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be deemed thereby to represent and warrant that such Shares and each certificate therefore are validly issued, fully paid, non-assessable and free of any preemptive right of the holders of outstanding Shares and that the person making such deposit is duly authorized so to do. Every such person shall also be deemed to represent that (i) Shares presented for deposit are not, and the Receipts evidencing the American Depositary Shares representing such Shares would not be, restricted securities within the meaning of Rule 144(a)(3) under the Securities Act of 1933, and (ii) the deposit of Shares or the sale of the Receipts issued upon such deposit is not otherwise restricted under the securities laws of the United States. Such representations and warranties shall survive the deposit of Shares and the execution and delivery of Receipts in respect thereof.
SECTION 3.04. Disclosure of Interests.
To the extent that provisions of or governing any Deposited Securities including, without limitation, the provisions of the Company's Articles of Association as in effect from time to time and resolutions and regulations of the Company's Board of Directors adopted pursuant to such Articles of Association or any applicable laws or regulations in the United Kingdom, the United States or any other country, may require the disclosure of beneficial or other ownership of Deposited Securities, other Shares and other securities of the Company and may provide for blocking transfer and voting or other rights to enforce such disclosure or limit such ownership, the Depositary shall use its reasonable efforts to comply with the Company's written instructions as to Receipts in respect of any such enforcement or limitation and Holders shall comply with all such disclosure requirements and ownership limitations and shall cooperate with the Depositary's compliance with such Company instructions.
ARTICLE IV. THE DEPOSITED SECURITIES.
SECTION 4.01. Cash Distributions.
Whenever the Depositary or the Custodian shall receive any cash dividend or other cash distribution on any Deposited Securities, the Depositary shall, subject to the provisions of Section 4.05, as promptly as practicable convert or cause to be converted such dividend or distribution into Dollars and shall promptly distribute the Dollars thereby received (net of the fees, expenses and charges of the Depositary as provided in Section 5.09) to Holders of Receipts on the record date fixed pursuant to Section 4.06 in proportion to the number of American Depositary Shares held by each of them, respectively; provided, however that in the event that any of the deposited Shares are not entitled, by reason of their dates of issuance, or otherwise, to receive the full amount of such cash dividend or distribution, the Depositary shall make appropriate adjustments in the amounts distributed to the Holders of the Receipts issued in respect of such Shares; and provided, further, that in the event that the Company or the Depositary shall be required to withhold and does withhold from any cash dividend or other cash distribution in respect of any Deposited Securities an amount on account of taxes, the amount distributed on the Receipts issued in respect of such Deposited Securities shall be reduced accordingly. The Depositary shall distribute only such amounts, however, as can be distributed without attributing to any Holder of a Receipt a fraction of one cent. Any such fractional amounts shall be rounded to the nearest whole cent and so distributed to Holders entitled thereto. The Company or its agent will remit to the appropriate governmental agency in the United Kingdom all amounts withheld and owing to such agency. The Depositary will forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file necessary reports with governmental agencies, and the Depositary or the Company or its agent may file any such reports necessary to obtain benefits under the applicable tax treaties for the Holders of Receipts.
SECTION 4.02. Distribution Other Than Cash, Shares or Rights.
Whenever the Depositary shall receive any distribution on the Deposited Securities of a particular Series other than cash, Shares of the corresponding Series or rights pursuant to Section 4.01, 4.03 or 4.04, the Depositary shall cause such amount of the securities or property received by it to be distributed as promptly as practicable to the Holders of Receipts of such Series on the record date fixed pursuant to Section 4.06, in proportion to the number of American Depositary Shares of the corresponding Series representing such Deposited Securities held by each of them, respectively, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution; provided, however that if in the opinion of the Depositary such distribution cannot be made among the Holders of such Receipts entitled thereto in proportion to the number of American Depositary Shares of the corresponding Series held by each of them, or if for any other reason (including, but not limited to, any requirement that the Company or the Depositary withhold an amount on account of taxes or other governmental charges or that such securities must be registered under the Securities Act in order to be distributed to Holders) the Depositary deems such distribution not to be lawful or feasible, the Depositary may after consultation with the Company to the extent practicable adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including, but not limited to, the sale, at public or private sale, of the securities or property thus received, or any part thereof, at such place or places and upon such terms as it deems proper, and the net proceeds of any such sale (net of the fees, expenses and charges of the Depositary as provided in Section 5.09) shall be distributed by the Depositary to the Holders of Receipts entitled thereto as in the case of a distribution received in cash.
SECTION 4.03. Distribution in Shares.
If any distribution upon Deposited Securities of a particular
Series consists of a dividend in, or free distribution of, Shares of the
corresponding Series, the Depositary may, and shall if the Company so requests,
and furnishes it promptly with satisfactory evidence that it is legal to do so,
distribute to the Holders of Receipts on the record date fixed pursuant to
Section 4.06, in proportion to the number of American Depositary Shares held by
each of them, respectively, additional Receipts in the same form for an
aggregate number of American Depositary Shares of the corresponding Series
representing the amount of such Shares received as such dividend or free
distribution, subject to the terms and conditions of this Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees,
expenses and charges of the Depositary as provided in Section 5.09.
Notwithstanding the foregoing, the Depositary will not distribute additional
Receipts in respect of any securities so received by it in respect of Shares of
a Series that is a component of a Share Unit unless the securities so received
consist of a dividend in, or free distribution of Shares of all the Series
comprising such Share Unit. In lieu of delivering Receipts for fractional
American Depositary Shares the Depositary will sell the amount of Shares
represented by the aggregate of such fractions, at public or private sale, at
such place or places and upon such terms as it may deem proper, and distribute
the net proceeds of any such sale in accordance with Section 4.01. If additional
Receipts of a particular Series are not so distributed (except as pursuant to
the preceding sentence), each American Depositary Share of the corresponding
Series shall thenceforth also represent its proportionate interest in the
additional Shares so distributed upon such Deposited Securities.
SECTION 4.04. Rights.
In the event that the Company shall offer or cause to be offered to the Holders of any Deposited Securities of a particular Series any rights to subscribe for additional Shares of the corresponding Series or any rights of any other nature, the Depositary shall have discretion as to the procedure to be followed in making such rights available to any Holders of Receipts or in disposing of such rights on behalf of any Holders and making the net proceeds available to such Holders in accordance with the procedures for distributing cash provided for in Section 4.01, or, if by the terms of such rights offering or for any other reason it would not be lawful or feasible for the Depositary either to make such rights available to any Holders or to dispose of such rights and make the net proceeds available to such Holders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Holders but not to other Holders, the Depositary may, and shall if the Company so requests, distribute to any Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares representing such Deposited Securities held by such Holder, warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed generally, if the Depositary determines in it discretion that it is lawful and feasible to make such rights available to certain Holders, the Depositary will, subject to applicable law, make such rights available to such Holders upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Holder has executed such documents as the Company and the Depositary have determined are reasonably required under applicable law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon instruction from any
such Holder pursuant to such warrants or other instruments to the Depositary
from such Holder to exercise such rights, upon payment by such Holder to the
Depositary for the account of such Holder of an amount equal to the purchase
price of the Shares of a particular Series to be received upon the exercise of
the rights, and upon payment of the fees and expenses of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Holder, exercise the rights and purchase the Shares of
the corresponding Series, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Holder. As agent for such
Holder, the Depositary will cause the Shares so purchased to be deposited
pursuant to Section 2.02 of this Deposit Agreement, and shall, pursuant to
Section 2.03 of this Deposit Agreement, execute and deliver Receipts of the
corresponding Series to such Holder. In the case of a distribution pursuant to
the second paragraph of this Section 4.04, such Receipts shall bear a legend in
accordance with applicable U.S. laws, and shall be subject to the appropriate
restrictions on sale, deposit, cancellation and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful or feasible to make such rights available to all or certain Holders, it may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares of a particular Series held by the Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees, expenses and charges of the Depositary as provided in Section 5.09 and all taxes and other governmental charges payable in connection with such rights, and subject to the terms and conditions of this Deposit Agreement) for the account of such Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Holders on account of exchange restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Holders, unless it has received from the Company evidence, as provided in Section 5.07, to the effect that (i) a registration statement under the Securities Act covering such offering is in effect or (ii) such offering does not require registration under the Securities Act. If a Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no registration under the Securities Act, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Holder is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Holders in general or any Holder in particular.
SECTION 4.05. Conversion of Foreign Currency.
Whenever the Depositary shall receive foreign currency, received by way of dividends or other distributions or in the form of net proceeds from the sale of securities, property or rights, and if, at the time, the foreign currency so received can, in the reasonable judgment of the Depositary, be converted on a reasonable basis into Dollars and the resulting Dollars transferred to the United States, the Depositary shall as promptly as practicable convert or cause to be converted, by sale or in any other manner that it may determine, such foreign currency into Dollars, and such Dollars (less any reasonable and customary expenses incurred by the Depositary in the conversion of such foreign currency) shall be promptly distributed to the Holders entitled thereto or, if the Depositary shall have distributed any warrants, or other instruments which entitle the holders thereof to such Dollars, then to the holders of such warrants or instruments, upon surrender thereof for cancellation. Such distribution may be made upon an averaged or other practicable basis without regard to any distinctions among Holders on account of exchange restrictions, the date of delivery of any Receipt or otherwise, and shall be net of any expenses of conversion into Dollars incurred by the Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with the approval or license of any government or agency thereof, the Depositary shall file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its reasonable judgment any foreign currency received by the Depositary is not convertible on a reasonable basis into Dollars transferable to the United States, or if any approval or license of any government or agency thereof which is required for such conversion is denied or in the opinion of the Depositary cannot be obtained, or if any such approval or license is not obtained within a reasonable period as determined by the Depositary, the Depositary may in its discretion, but subject to applicable laws and regulations, either (i) distribute such foreign currency (or an appropriate document evidencing the right to receive such foreign currency) to the Holders of Receipts entitled to receive the same, or (ii) hold such foreign currency for the respective accounts of such persons, uninvested and without liability for interest.
If any such conversion of foreign currency, in whole or in part, can be effected as aforesaid for distribution to some but not all of the Holders of Receipts entitled thereto, the Depositary may in its discretion make such conversion and distribution in Dollars, to the extent such currency shall be convertible as aforesaid, to the Holders of Receipts entitled thereto and, with respect to the balance of such foreign currency, shall in its discretion, but subject to any applicable law and regulations, either (i) distribute or make available for distribution such balance to the persons who were Holders of Receipts entitled thereto with respect to whom such conversion could not then be effected, or (ii) hold such balance for the respective accounts of such persons, uninvested and without liability for interest.
SECTION 4.06. Fixing of Record Date.
Whenever, any cash dividend, or other cash distribution shall become payable or any distribution other than cash shall be made, or whenever rights shall be issued with respect to the Deposited Securities of a particular Series, or whenever for any reason the Depositary causes a change in the number of Shares of a particular Series that are represented by each American Depositary Share of the corresponding Series, or whenever the Depositary shall receive notice of any meeting of holders of Shares or other Deposited Securities, the Depositary shall fix a record date (a) for the determination of the Holders of Shares of a particular Series who shall be (i) entitled to receive such dividend, distribution or rights or the net proceeds of the sale thereof or (ii) entitled to give instructions for the exercise of voting rights at any such meeting, or (b) on or after which each American Depositary Share will represent the changed number of Shares. Such record date shall be the same record date as any corresponding record date set by the Company for such purpose or, if different, fixed after consultation with the Company. Subject to the provisions of Sections 4.01 through 4.05 and to the other terms and conditions of this Deposit Agreement, the Holders on such record date shall be entitled, as the case may be, to receive the amount distributable by the Depositary with respect to such dividend or other distribution or such rights or the net proceeds of sale thereof in proportion to the number of American Depositary Shares of the corresponding Series held by them, respectively, and to give voting instructions and to act in respect of any other such matter.
SECTION 4.07. Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares of
a particular Series or other Deposited Securities, if requested in writing by
the Company, the Depositary shall, as soon as practicable thereafter, mail to
the Holders of Receipts of the corresponding Series a notice, the form of which
notice shall be in the sole discretion of the Depositary, which shall contain
(a) such information as is contained in such notice of meeting, (b) a statement
that such Holders of Receipts of the corresponding Series at the close of
business on a specified record date will be entitled, subject to any applicable
provision of English law, or of the Articles of Association of the Company, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares of such Series or other Deposited Securities
of the corresponding Series represented by their respective American Depositary
Shares, and (c) a brief statement as to the manner in which such instructions
may be given. Upon the written request of a Holder of a Receipt on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor insofar as practicable to vote or cause
to be voted the amount of Shares of such Series or other Deposited Securities
represented by such Receipt in accordance with the instructions set forth in
such request. The Depositary shall not vote or attempt to exercise the right to
vote that attaches to the Shares of such Series or other Deposited Securities
except in accordance with such instructions.
There can be no assurance that Holders generally or any Holder in particular will receive the notice described in the preceding paragraph sufficiently to ensure that the Holder can instruct the Depositary to vote the Shares of a particular Series or Deposited Securities of the corresponding Series in accordance with the provisions set forth in the preceding paragraph.
SECTION 4.08. Changes Affecting Deposited Securities, Reclassification Recapitalizations, etc.
In circumstances where the provisions of Section 4.03 do not apply, upon any change in par or nominal value, sub-division, consolidation or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger, amalgamation or consolidation or sale of assets affecting the Company or to which it is a party, any securities which shall be received by the Depositary or the Custodian in exchange for or in conversion of or in respect of Deposited Securities shall be treated as new Deposited Securities under this Deposit Agreement and each ADS will thenceforth represent, in addition to the existing Deposited securities, if any, the right to receive a proportional interest in the new deposited securities, and Receipts of the Series then outstanding shall thenceforth represent, in addition to the existing Deposited securities, if any, the new Deposited Securities so received in exchange for or on conversion of or in respect of Deposited Securities of the Series unless additional or new Receipts are delivered pursuant to the following sentence. In any such case, the Depositary may, and shall if the Company shall so request, execute and deliver additional Receipts as in the case of a dividend in Shares, or may call for the surrender of outstanding Receipts to be exchanged for new Receipts of the corresponding Series specifically describing such new Deposited Securities; provided, however, that the Depositary will not distribute additional Receipts in respect of any securities so received by it in respect of Shares of a Series comprising a Share Unit unless the securities so received consist of Shares of all Series comprising such Share Unit.
SECTION 4.09. Statutory Reports.
The Depositary shall make available for inspection by Holders of Receipts of any Series at the Depositary's Corporate Trust Office any notices, reports and other communications received from the Company which are both (a) received by the Depositary, the Custodian or their respective nominees as the holder of Deposited Securities of the corresponding Series and (b) made generally available to the holders of Deposited Securities by the Company. The Depositary shall also, upon the Company's written request, send to the Holders copies of such reports furnished by the Company pursuant to Section 5.06. Any such reports and communications, including any proxy soliciting material, furnished to the Depositary by the Company shall be furnished in English, to the extent such materials are required to be translated into English pursuant to any rules or regulations of the Commission.
SECTION 4.10. List of Holders.
Promptly upon the written request of the Company, the Depositary shall furnish to it a list, as of a recent date, of the names, addresses and holdings of American Depositary Shares of any Series by all persons in whose names Receipts are registered on the books of the Depositary.
SECTION 4.11. Withholding.
In connection with any distribution to Holders, (i) the Company will remit to the appropriate governmental authority or agency any amounts (a) required to be withheld by the Company and (b) owing to such authority or agency by the Company, and (ii) the Depositary and the Custodian will remit to the appropriate governmental authority or agency any amounts (a) required to be withheld and (b) owing to such authority or agency by the Depositary or the Custodian. In the event that the Depositary determines that any distribution in property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which the Depositary is obligated to withhold, the Depositary may, by public or private sale, dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner as the Depositary deems necessary and practicable to pay any such taxes or charges and the Depositary shall distribute the net proceeds of any such sale after deduction of such taxes or charges to the Holders entitled thereto in proportion to the number of American Depositary Shares held by them, respectively. The Depositary will forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file necessary reports with governmental agencies, and the Depositary or the Company or its agent may file any such reports necessary to obtain benefits under the applicable tax treaties for the Holders of Receipts.
ARTICLE V. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
SECTION 5.01. Maintenance of Offices and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms, the Depositary shall maintain, at its Corporate Trust Office, facilities for the execution and delivery, registration of transfer, and surrender of Receipts of each Series, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep at its Corporate Trust Office a book or books for the transfer and registration of Receipts for each Series, which at all reasonable times shall be open for inspection by Holders of such Receipts; provided that such inspection shall not be for the purpose of communicating with Holders of such Receipts in the interest of a business or object other than the business of the Company or a matter related to this Deposit Agreement or the Receipts of such Series. The Depositary may close the books, at any time or from time to time, when reasonably deemed expedient by it in connection with the performance of its duties hereunder or at the request of the Company.
If any Receipts of a particular Series or the American Depositary Shares evidenced thereby are listed on one or more stock exchanges in the United States, the Depositary shall act as Registrar or appoint a Registrar or one or more co-registrars for registry of such Receipts in accordance with any requirements of such exchange or exchanges.
SECTION 5.02. Prevention or Delay in Performance by the Depositary, the Custodian or the Company.
Neither the Depositary, the Custodian nor the Company shall incur any liability to any Holder or Beneficial Owner of any Receipt, if by reason of any provision of any present or future law or regulation of the United States, any state thereof, the United Kingdom or of any other country, or of any other action of any governmental or regulatory authority of the United States, the United Kingdom or any other country, or of any stock exchange, or by reason of any provision, present or future, of the Articles of Association of the Company, or by reason of any act of God or war or terrorism or other circumstance beyond its control, the Depositary, the Custodian or the Company, as the case may be, shall be delayed in, prevented or forbidden from, or subjected to any civil or criminal penalty on account of doing or performing any act or thing which by the terms of this Deposit Agreement it is provided shall be done or performed; nor shall the Depositary, the Custodian or the Company incur any liability to any Holder or Beneficial Owner of a Receipt by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or thing which, by the terms of this Deposit Agreement, it is provided shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02, or 4.03 of this Deposit Agreement, or an offering or distribution pursuant to Section 4.04 of this Deposit Agreement, or for any other reason, such distribution or offering may not be made available to Holders, and the Depositary may not dispose of such distribution or offering on behalf of such Holders and make the net proceeds available to such Holders, then the Depositary shall not make such distribution or offering, and shall allow any rights, if applicable, to lapse. The Depositary shall not perform any action required or permitted under this Deposit Agreement which shall be prohibited by the rules of any securities exchange on which the American Depositary Shares are listed for trading.
SECTION 5.03. Obligations of the Depositary, the Custodian and the Company.
Neither the Depositary nor the Company assumes any obligation or shall be subject to any liability under this Deposit Agreement to Holders or Beneficial Owners of Receipts, other than that each of them agrees to perform its obligations and duties specifically set forth in this Deposit Agreement without negligence or bad faith.
The Depositary shall not be subject to any liability with respect to the validity or worth of the Deposited Securities. Neither the Depositary nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of the Receipts, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expenses and liabilities be furnished as often as may be required, and the Custodian shall not be under any obligation whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary, the Custodian nor the Company shall be liable for any action or non-action by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Holder or Beneficial Owner of a Receipt or any other person believed by it in good faith to be competent to give such advice or information. The Depositary, the Custodian and the Company may rely and shall be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
Neither the Depositary nor the Custodian shall be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner or effect of any such vote made either with or without request, or for not exercising any right to vote, as long as any such action or non-action is in good faith.
The Depositary and the Custodian may own and deal in any class of securities of the Company and its affiliates, and in Receipts.
No disclaimer of liability under the Securities Act is intended by any provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary hereunder with respect to any or all Series of Deposited Securities by written notice of its election so to do delivered to the Company and the Custodian, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may with respect to any or all Series of Deposited Securities at any time be removed by the Company by 90 days prior written notice of such removal delivered to the Depositary and the Custodian, such removal to become effective upon the later of the (i) 90th day after delivery of the notice to the Depositary or (ii) appointment of a successor depositary in respect of the Series of Deposited Securities with respect to which the Depositary is to be removed and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company, unless the Company shall desire the termination of this Deposit Agreement as provided in Section 6.02, shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having its principal office in the Borough of Manhattan, The City of New York. Every successor depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor; provided, however that such predecessor, upon payment of all sums due it and on the written request of the Company, shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Deposited Securities to such successor and shall deliver to such successor a list of the Holders of all outstanding Receipts. Any successor depositary shall promptly mail notice of its appointment to the Holders of Receipts and the Custodian.
Any corporation into or with which the Depositary may be converted, merged or consolidated shall be the successor of such Depositary without the execution or filing of any document or any further act.
SECTION 5.05. The Custodian.
The Depositary may appoint one or more agents to act as its Custodian hereunder. Any Custodian in acting hereunder shall be subject at all times and in all respects to the directions of the Depositary, and shall be responsible solely to it. The Depositary shall be solely responsible for the Custodian. Any Custodian may resign and be discharged from its duties hereunder with respect to any or all Series of Deposited Securities by notice of such resignation delivered to the Depositary at least thirty (30) days prior to the date on which such resignation is to become effective. If upon such resignation there shall be no Custodian acting hereunder, the Depositary shall, promptly after receiving such notice, appoint a substitute custodian or custodians with respect to the Series of Deposited Securities with respect to which the Custodian has resigned, each of which shall thereafter be a Custodian hereunder. Whenever the Depositary in its discretion determines that it is in the best interest of the Holders to do so, it may appoint a substitute or additional custodian or custodians, which shall thereafter be one of the Custodians hereunder. Upon demand of the Depositary any previous Custodian shall deliver the Deposited Securities held by it to any other Custodian or such substitute or additional custodian or custodians with respect to any or all Series of Deposited Securities as the Depositary shall instruct. Each such substitute or additional custodian or custodians shall deliver to the Depositary, forthwith upon its appointment, an acceptance of such appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, any Custodian then acting hereunder shall forthwith become, without any further act or writing, the agent hereunder of such successor depositary, and the appointment of such successor depositary shall in no way impair the authority of any Custodian hereunder provided, however that the successor depositary so appointed shall, on the written request of any Custodian, execute and deliver to such Custodian all such instruments as may be proper to give to such Custodian full and complete power and authority as agent hereunder of such successor depositary.
SECTION 5.06. Notices and Reports.
On or before the first date on which the Company gives notice, by publication or otherwise, of any meeting of holders of Shares or other Deposited Securities of a particular Series, or of any adjourned meeting of such holders, or of the taking of any action in respect of any cash or other distributions or the offering of any rights, the Company agrees to transmit to the Depositary and the Custodian a copy of the notice thereof in the form given or to be given to holders of Shares or other Deposited Securities of such Series.
The Company will arrange for the translation into English, if not already in English, to the extent required pursuant to any rules or regulations of the Commission, and the prompt transmittal by the Company to the Depositary and the Custodian, of such notices and any other reports and communications, including any proxy soliciting materials, which are made generally available by the Company to holders of its Shares or other Deposited Securities of a particular Series. If requested in writing by the Company, the Depositary will arrange for the mailing, at the Company's expense, of copies of such notices, reports and communications that are made generally available by the Company to holders of its Shares or other Deposited Securities of the corresponding Series and/or, at the written request of the Company and at the Company's expense, make such notices, reports and other communications available to all Holders on a basis similar to that for holders of Shares or other Deposited Securities of the corresponding Series, or on such other basis as the Company may advise the Depositary is required or as the Depositary may be required by any applicable law or regulation. The Company will timely provide the Depositary with the quantity of such notices, reports and communications, including any proxy soliciting materials, as requested by the Depositary from time to time, in order for the Depositary to effect such mailings. The Depositary will, at the expense of the Company, make such copies and such notices, reports and communications available for inspection by Holders at the Depositary's Corporate Trust Office, at the office of the Custodian and at any other designated transfer offices.
SECTION 5.07. Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any future issuances or distributions (collectively, a "Distribution") of (a) additional Shares of any Series or other securities that are Deposited Securities of a particular Series ("ADS Securities"), (b) rights, preferences or privileges to subscribe for ADS Securities, (c) securities convertible into or exchangeable for ADS Securities or (d) rights, preferences or privileges to subscribe for securities convertible into or exchangeable for ADS Securities, such Distribution shall be effected by the Company in a manner so as not to violate the Securities Act, or any securities or "Blue Sky" law of any relevant jurisdictions in the United States. The Company shall direct the Depositary in writing to take, or to cause the Custodian to take, specified, reasonable measures with respect to the acceptance for deposit of ADS Securities as shall be required to prevent any violation of the registration requirements of the Securities Act or any securities or "Blue Sky" law of any relevant jurisdictions in the United States.
The Company will promptly furnish to the Depositary evidence satisfactory to the Depositary and its counsel that a registration statement under the Securities Act is in effect with respect to such Distribution, or a written opinion from U.S. counsel for the Company, which counsel shall be reasonably satisfactory to the Depositary, stating that registration under the Securities Act is not required with respect to such Distribution in order to prevent violation of the registration requirements of the Securities Act or any securities or "Blue Sky" law of any relevant jurisdictions in the United States.
The Company agrees with the Depositary that neither the Company nor any person controlled by, controlling or under common control with the Company will at any time deposit any ADS Securities hereunder, either upon original issuance or upon a sale of ADS Securities previously issued and reacquired by the Company or by any person controlled by, controlling or under common control with the Company, unless such ADS Securities have been registered under the Securities Act or an exemption from the registration requirements of the Securities Act is available.
SECTION 5.08. Indemnification.
The Company agrees to indemnify the Depositary, any Custodian,
any other agent of the Company or the Depositary hereunder and their respective
directors, officers, employees, agents and affiliates (each, an "Indemnified
Person") against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may be based on or arise out of (a) acts performed or omitted in
accordance with the provisions of this Deposit Agreement and of the Receipts, as
the same may be amended, modified or supplemented from time to time, (i) by an
Indemnified Person, except for any liability or expense arising out of the
negligence or bad faith of such Indemnified Person, or (ii) by the Company or
any of its directors, officers, employees, agents and affiliates or (b) out of
or in connection with any offer or sale of Receipts, American Depositary Shares,
Shares, other Deposited Securities, proxy statement, prospectus (or placement
memorandum) or preliminary prospectus (or preliminary placement memorandum) or
any registration statement under the Securities Act in respect thereof, except
to the extent such loss, liability or expense arises out of information (or
omissions from such information) relating to such Indemnified Person, furnished
in writing to the Company, and not materially changed or altered by the Company,
by such Indemnified Person expressly for use in a registration statement, proxy
statement, prospectus (or placement memorandum) or preliminary prospectus (or
preliminary placement memorandum) under the Securities Act.
The indemnities contained in the preceding paragraph shall not
extend to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.10) of a Receipt or Receipts of any Series
in accordance with Section 2.10 and which would not otherwise have arisen had
such Receipt or Receipts not been the subject of a Pre-Release pursuant to
Section 2.10; provided, however that the indemnities provided in the preceding
paragraph shall apply to any such liability or expense (i) to the extent that
such liability or expense would have arisen had a Receipt or Receipts of any
Series not been the subject of a Pre-Release, or (ii) which may arise out of any
misstatement or alleged misstatement or omission or alleged omission in any
registration statement, proxy statement, prospectus (or placement memorandum) or
preliminary prospectus (or preliminary placement memorandum) relating to the
offer of sale of American Depositary Shares, except to the extent any such
liability or expense arises out of (i) information relating to the Depositary or
any Custodian (other than the Company), as applicable, furnished in writing and
not materially changed or altered by the Company expressly for use in any of the
foregoing documents, or, (ii) if such information is provided, the failure to
state a material fact necessary to make the information provided not misleading.
The Depositary agrees to Indemnify the Company, its directors, officers, employees, agents and affiliates against, and hold each of them harmless from, any liability or expense (including, but not limited to, the reasonable fees and expenses of counsel) which may be based on or arise out of acts performed or omitted by such Indemnified Person, due to its negligence or bad faith.
The obligations set forth in this Section 5.08 shall survive the termination of this Deposit Agreement or the succession or substitution of any Indemnified Person hereunder.
SECTION 5.09. Charges and Expenses.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket charges of the Depositary and those of any Registrar only in accordance with agreements in writing entered into between the Depositary and the Company from time to time. The Depositary shall present its statement for such charges and expenses to the Company at least once every three months. The charges and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or withdrawing Shares of any Series or by any party surrendering Receipts of a particular Series or to whom such Receipts are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of stock regarding the Receipts or Deposited Securities of a particular Series or a distribution of Receipts pursuant to Section 4.03), or by Holders, as applicable: (1) taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration of transfers of Shares of any Series generally on the Share register of the Company or Foreign Registrar for the corresponding Series and applicable to transfers of Shares of any Series to or from the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile transmission expenses as are expressly provided in this Deposit Agreement, (4) such expenses as are incurred by the Depositary in the conversion of foreign currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the execution and delivery of Receipts of the corresponding Series pursuant to Section 2.03, 4.03 or 4.04 and the surrender of Receipts of the corresponding Series pursuant to Section 2.05 or 6.02, (6) a fee for the distribution of securities pursuant to Section 4.02, such fee being in an amount equal to the fee for the execution and delivery of American Depositary Shares referred to above which would have been charged as a result of the deposit of such securities (for purposes of this clause 7 treating all such securities as if they were Shares) but which securities are instead distributed by the Depositary to Holders and (7) any other charge payable by the Depositary, any of the Depositary's agents, including the Custodian, or the agents of the Depositary's agents in connection with the servicing of Shares of any Series or other Deposited Securities (which charge shall be assessed against Holders as of the date or dates set by the Depositary in accordance with Section 4.06 and shall be payable at the sole discretion of the Depositary by billing such Holders for such charge or by deducting such charge from one or more cash dividends or other cash distributions).
SECTION 5.10. Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills and other data compiled during the term of this Deposit Agreement at the time permitted by the laws or regulations governing the Depositary, unless the Company requests in writing that such papers be retained for a longer period or turned over to the Company or to a successor depositary.
SECTION 5.11. Exclusivity.
The Company agrees not to appoint any other depositary for issuance of American Depositary Receipts so long as The Bank of New York is acting as Depositary hereunder.
SECTION 5.12. List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a list setting forth, to the actual knowledge of the Company, those persons or entities who beneficially own Restricted Securities of any Series and the Company shall update that list on a regular basis. The Company agrees to advise in writing each of the persons or entities so listed that such Restricted Securities are ineligible for deposit hereunder. The Depositary may rely on such a list or update but shall not be liable for any action or omission made in reliance thereon.
ARTICLE VI. AMENDMENT AND TERMINATION.
SECTION 6.01. Amendment.
The forms of the Receipts and any provisions of this Deposit Agreement, including with respect to any Series, may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or desirable. Any amendment which shall impose or have the effect of increasing any fees or charges payable by the Holders of Receipts of a particular Series, (other than taxes or other governmental charges, registration fees and cable, telex or facsimile transmission and delivery expenses) or which shall otherwise prejudice any substantial existing right of Holders of such Receipts, shall not become effective as to outstanding Receipts of such Series until the expiration of thirty (30) days after notice of such amendment shall have been given to the Holders of outstanding Receipts of such Series. Every Holder of an outstanding Receipt of such Series at the time such amendment so becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by this Deposit Agreement as amended thereby. In no event shall any amendment impair the right of the Holder of any Receipt of any Series to surrender such Receipt and receive therefor the Deposited Securities of the corresponding Series represented thereby, except an order to comply with mandatory provisions of applicable law.
SECTION 6.02. Termination.
The Depositary shall at any time at the direction of the Company terminate this Deposit Agreement as to Shares of any or all Series and the Deposited Securities, American Depositary Shares and Receipts of all corresponding Series by mailing notice of such termination to the Holders of all Receipts of such Series then outstanding at least ninety (90) days prior to the date fixed in such notice for such termination. The Depositary may likewise terminate this Deposit Agreement as to Shares of any or all Series and the Deposited Securities, American Depositary Shares and Receipts of all corresponding Series by mailing notice of such termination to the Company and the Holders of all Receipts of such Series then outstanding if at any time ninety (90) days shall have expired after the Depositary shall have delivered to the Company a written notice of its election to resign and a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.04. On and after the date of termination, the Holder of such Receipt will, upon (a) surrender of such Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee of the Depositary for the surrender of Receipts referred to in Section 5.09 and (c) payment of any applicable taxes or other governmental charges, be entitled to delivery, to him or upon his order, of the amount of Deposited Securities of a particular Series represented by the American Depositary Shares of the corresponding Series evidenced by such Receipt. If any Receipts shall remain outstanding after the date of termination, the Depositary thereafter shall discontinue the registration of transfers of Receipts of such Series, shall suspend the distribution of dividends to the Holders thereof, and shall not give any further notices or perform any further acts under this Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Deposited Securities of the corresponding Series, shall sell rights and other property as provided in this Deposit Agreement, and shall continue to deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any rights or other property, in exchange for Receipts of the corresponding Series surrendered to the Depositary (without liability for interest and after deducting, in each case, the fee of the Depositary for the surrender of such Receipt, any expenses for the account of the Holder of such Receipt in accordance with the terms and conditions of this Deposit Agreement and any applicable taxes or other governmental charges). At any time after the expiration of one year from the date of termination, the Depositary may sell the Deposited Securities of a particular Series then held hereunder and may thereafter hold uninvested and without liability for interest the net proceeds of any such sale, together with any other cash then held by it hereunder, unsegregated and without liability for interest, for the pro rata benefit of the Holders of Receipts of such Series which have not theretofore been surrendered, such Holders thereupon becoming general creditors of the Depositary with respect to such net proceeds. After making such sale, the Depositary shall be discharged from all obligations under this Deposit Agreement as to the Receipts of such Series, and the Shares, Deposited Securities and American Depositary Shares of the corresponding Series, except to account for such net proceeds and other cash (after deducting, in each case, the fee of the Depositary for the surrender of a Receipt, any expenses for the account of the Holder of such Receipt in accordance with the terms and conditions of this Deposit Agreement and any applicable taxes or other governmental charges). Upon the termination of this Deposit Agreement, the Depositary and the Company shall be discharged from all obligations under this Deposit Agreement as to the Receipts of such Series, and the Shares, Deposited Securities and American Depositary Shares of the corresponding Series, except for their respective obligations under Section 5.08 and the Company's obligations to the Depositary under Section 5.09.
SECTION 6.03. Severability.
Any amendment or termination of this Deposit Agreement with respect to one series of ADSs will not necessarily occur concurrently with the amendment or termination of any other series of ADSs. The substitution of the Depositary by another depositary, or the termination of this Deposit Agreement, with respect to any series of ADRs representing dollar preference shares of a series that is a component of a unit will result in the substitution of the depositary or the termination of the deposit agreement with respect to all of the ADRs representing the dollar preference shares of all other series comprising the unit.
ARTICLE VII. MISCELLANEOUS.
SECTION 7.01. Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same instrument. Copies of this Deposit Agreement shall be filed with the Depositary and the Custodian, and shall be open to inspection at the Depositary's Corporate Trust Office and the principal office of the Custodian by any Holder of a Receipt during business hours.
SECTION 7.02. Agreement for Exclusive Benefit of Parties.
This Deposit Agreement is for the exclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim whatsoever to any other person.
SECTION 7.03. Severability.
In the event that any one or more of the provisions contained is this Deposit Agreement or in the Receipts shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices.
Any and all notices to be given to the Company shall be deemed to have been duly given if personally delivered or sent by mail, or by cable, telex or facsimile transmission confirmed by letter, addressed to: 8 Canada Square, London E4 5HQ or any other place to which the Company may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have been duly given if in English and personally delivered or sent by mail, first-class airmail postage prepaid or by cable, telex or facsimile transmission confirmed by letter, addressed to: The Bank of New York, 101 Barclay Street, New York, New York, 10286 or any other place to which the Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Holder of a Receipt of a particular Series shall be deemed to have been duly given if personally delivered or sent by mail, first-class airmail postage prepaid, or by cable, telex or facsimile transmission confirmed by letter, addressed to such Holder at the address of such Holder as it appears on the transfer books of the Depositary, or, if such Holder shall have filed with the Depositary a written request that notices intended for such Holder be mailed to some other address, at the address designated in such request.
Delivery of a notice sent by mail or by cable, telex or facsimile transmission shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of cable or telex or facsimile transmission message) is deposited, first-class airmail postage prepaid, in a post-office letter box. The Depositary or the Company, however, may act upon any cable, telex or facsimile transmission message received by it from the other or from any Holder of a Receipt, notwithstanding that such cable, telex or, facsimile transmission message shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.05. Holders and Beneficial Owners of Receipts are Parties.
The Holders and Beneficial Owners of Receipts from time to time shall be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.06. Governing Law.
This Deposit Agreement and the Receipts shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law principles.
SECTION 7.07. Submission to Jurisdiction; Appointment of Agent for Service of Process.
The Company hereby (i) irrevocably has designated and appointed HSBC Bank USA of 452 Fifth Avenue, New York, New York 10018, as the Company's authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Shares or Deposited Securities, the American Depositary Shares, the Receipts or the Deposit Agreement, (ii) consents and submits to the jurisdiction of any state or federal court in the State of New York in which any such suit or proceeding may be instituted, and (iii) agrees that service of process upon said authorized agent shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company agrees to take any and all action, including the filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment in full force and effect for so long as any American Depositary Shares or Receipts remain outstanding or this Deposit Agreement remains in force. In the event the Company fails to continue such designation and appointment in full force and effect, the Company hereby waives personal service of process upon it and consents that any such service of process may be made by certified or registered mail, return receipt requested, directed to the Company at its address last specified for notices hereunder, and service so made shall be deemed completed five (5) days after the same shall have been so mailed.
IN WITNESS WHEREOF, HSBC Holdings plc and The Bank of New York have duly executed this Agreement as of the day and year first set forth above and all Holders and Beneficial Owners of Receipts shall become parties hereto upon acceptance by them of Receipts issued in accordance with the terms hereof.
HSBC HOLDINGS PLC
By: __________________________
Name:
Title:
THE BANK OF NEW YORK
By: _________________________
Name:
Title:
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share of any Series shall
represent the right to receive
one (or a fraction or multiple
of one) Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR DOLLAR-DENOMINATED PREFERENCE SHARES OF
SERIES____________*
(NOMINAL VALUE $0.01)
HSBC HOLDINGS PLC
(A COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND)
THE BANK OF NEW YORK, as depositary (hereinafter called the
"Depositary"), hereby certifies that
_____________________________________________________________, or registered
assigns IS THE OWNER OF___________________________________________.
AMERICAN DEPOSITARY SHARES
representing deposited Dollar-denominated Preference Shares of Series ___________*, nominal value $0.01 each (herein called "Shares") of HSBC Holdings plc, a company incorporated under the laws of England (herein called the "Company"). At the date hereof, each American Depositary Share shall represent the right to receive one (or a fraction or multiple of one) Share deposited or subject to deposit under the Deposit Agreement (as such is hereinafter defined) at the London office of The Bank of New York, (herein called the "Custodian"). The Depositary's Corporate Trust Office is located at 101 Barclay Street, New York, N.Y. 10286. The Depositary's principal executive office is located at One Wall Street, New York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286.
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called "Receipts"), all issued and to be issued upon the terms and conditions set forth in the deposit agreement, dated as of o 2002 (herein called the "Depositary Agreement"), by and among the Company, the Depositary, and Holders and Beneficial Owners from time to time of Receipts issued thereunder, each of whom by accepting a Receipt agrees to become a party thereto and become bound by all the terms and conditions thereof. The Deposit Agreement sets forth the rights of Holders and Beneficial Owners of the Receipts and the rights and duties of the Depositary in respect of the Shares deposited thereunder and any and all other securities, property and cash from time to time received in respect of such shares and held thereunder (such Shares, securities, property, and cash are herein called "Deposited Securities"). Copies of the Deposit Agreement are on file at the Depositary's Corporate Trust Office in New York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries of certain provisions of the Deposit Agreement and are qualified by and subject to the detailed provisions of the Deposit Agreement, to which reference is hereby made. Capitalized terms defined in the Deposit Agreement and not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender of this Receipt at the Depositary's Corporate Trust Office, or at such other office as the Depositary may designate, for the purpose of withdrawal of the Deposited Securities represented by the American Depositary Shares evidenced hereby, and upon payment of the fees and expenses of the Depositary for the cancellation of Receipts provided in Section 5.09 of the Deposit Agreement and payment of all taxes and other governmental charges payable in connection with such surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of the Company's Articles of Association, the Deposited Securities and the Deposit Agreement, and to any other restriction applicable thereto, the Holder hereof is entitled to delivery, to him or upon his order, of the Shares and any other Deposited Securities at the time represented by this Receipt. Delivery of such Deposited Securities may be made by the delivery of (a) certificates in the name of the Holder hereof or as ordered by him or by the delivery of certificates properly endorsed or accompanied by proper instruments of transfer to such Holder or as ordered by him and (b) of any other securities, property and cash to which such Holder is then entitled in respect of this Receipt. Such delivery will be made either at the Corporate Trust Office of the Depositary or at such other place as may be reasonably requested by the Holder, as provided in the Deposit Agreement; provided that the forwarding of certificates for Shares or other Deposited Securities for such delivery at the Corporate Trust Office of the Depositary or at such other place shall be at the risk and expense of the Holder hereof.
3. TRANSFER OF RECEIPTS; COMBINATIONS AND SPLIT-UPS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary by the Holder hereof in person or by a duly authorized attorney, upon surrender at the Depositary's designated transfer offices of this Receipt properly endorsed or accompanied by a properly executed instrument of transfer and duly stamped as required by applicable law. This Receipt may be split into other such Receipts, or may be combined with other such Receipts into one Receipt, evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered.
As a condition precedent to the execution and delivery, registration of transfer, split-up, combination, or surrender of any Receipt, the delivery of any distribution thereon, or withdrawal of any Deposited Securities, the Depositary, the Company, the Custodian, or Foreign Registrar, if applicable, may require (a) payment from the depositor of the Shares or the presenter of the Receipt of a sum sufficient to pay for (i) any tax or other governmental charge and any stock transfer or registration fees in respect of Receipts, (ii) any tax or other governmental charge and any stock transfer or registration fees in respect of registration of transfers of Shares or the Deposited Securities upon any applicable register; and (iii) any fees of the Depositary as provided in Section 5.09 of the Deposit Agreement; (b) the production of proof satisfactory to it as to the identity and genuineness of any signature and as to any other matter contemplated by Section 3.01 of the Deposit Agreement; and (c) compliance with such reasonable regulations, if any, as the Depositary and Company may establish consistent with the provisions of the Deposit Agreement or this Receipt, including, without limitation, this Article 3.
The delivery of Receipts against deposits of Shares generally or against deposits of particular Shares may be suspended, or the transfer of Receipts in particular instances may be refused, or the registration of transfer of outstanding Receipts, or the combination or split-up of Receipts, generally may be suspended, during any period when the transfer books of the Depositary or any register for Shares or other Deposited Securities are closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental agency or commission, or under any provision of the Deposit Agreement or this Receipt, or for any other reason. Notwithstanding any other provision of the Deposit Agreement or this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited Securities may be suspended only for (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the deposit of Shares in connection with voting at a shareholders' meeting, or the payment of dividends, (ii) the payment of fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the Receipts or to the withdrawal of the Deposited Securities, or (iv) any other reason that may at any time be specified in paragraph I(A)(1) of the General Instructions to Form F-6, as from time to time in effect, or any successor provision thereto. Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under the Deposit Agreement any Shares which are required to be registered under the provisions of the Securities Act of 1933, unless a registration statement is in effect as to such Shares.
4. LIABILITY OF HOLDER FOR TAXES.
If any tax or other governmental charge shall become payable with respect to this Receipt or with respect to any Deposited Securities represented by American Depositary Shares evidenced hereby, such tax or other governmental charge shall be payable by the Holder hereof to the Depositary. The Depositary may deduct the amount of any taxes owed from any payments to the Holder hereof. The Depositary may restrict or refuse to effect any transfer of this Receipt or any combination or split-up hereof or any withdrawal of Deposited Securities represented by American Depositary Shares evidenced hereby until such payment is made, and may withhold any dividends or other distributions or may sell any part or all of the Deposited Securities represented by the American Depositary Shares evidenced by this Receipt and may apply such dividends or other distributions or the proceeds of any such sale in payment of such tax or other governmental charge (and any taxes or expenses arising out of such sale), the Holder hereof remaining liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit Agreement shall be deemed thereby to represent and warrant that such Shares and each certificate therefor are validly issued, fully paid, non-assessable, and free of any pre-emptive rights of the holders of outstanding Shares and that the person making such deposit is duly authorized so to do. Every such person shall also be deemed to represent that (i) Shares presented for deposit are not, and the Receipts evidencing the American Depositary Shares representing such Shares would not be, restricted securities within the meaning of Rule 144(a)(3) under the Securities Act of 1933, and (ii) the deposit of such Shares and the sale of Receipts evidencing American Depositary Shares representing such Shares by that person are not restricted under the Securities Act of 1933. Such representations and warranties shall survive the deposit of Shares and the execution and delivery of Receipts in respect thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder or Beneficial Owner hereof may be required by the Depositary from time to time (i) to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, payment of applicable taxes or other governmental charges, legal or beneficial ownership of Receipts, Deposited Securities or other securities, compliance with all applicable laws or regulations or terms of the Deposit Agreement or such Receipt, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, or any other information the Depositary or the Company may deem necessary or appropriate to evidence compliance with all applicable laws and regulations, and (ii) to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper or as the Company may reasonably request by written request to the Depositary. The Depositary may withhold the delivery or registration of transfer of any Receipt or the distribution of any dividend or distribution of rights or of the sale proceeds thereof or the delivery of any Deposited Securities until such proof or other information is filed or such certificates are executed or such representations and warranties are made to the Depositary's satisfaction, and if the Company so requests in writing to the Depositary, to the Company's satisfaction. No Share shall be accepted for deposit unless accompanied by evidence satisfactory to the Depositary that any necessary approval has been granted by any governmental agency in the United Kingdom which is then performing the function of regulation of currency exchange. The Depositary shall provide the Company, in a timely manner, with copies of any such proofs, certificates or other information upon written request by the Company, unless such disclosure is prohibited.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket charges of the Depositary and those of any Registrar only in accordance with agreements in writing entered into between the Depositary and the Company from time to time. The Depositary shall present its statement for such charges and expenses to the Company at least once every three months. The charges and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or withdrawing Shares of any Series or by any party surrendering Receipts of a particular Series or to whom such Receipts are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of stock regarding the Receipts or Deposited Securities of a particular Series or a distribution of Receipts pursuant to Section 4.03), or by Holders, as applicable: (1) taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration of transfers of Shares of any Series generally on the Share register of the Company or Foreign Registrar for the corresponding Series and applicable to transfers of Shares of any Series to or from the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile transmission expenses as are expressly provided in this Deposit Agreement, (4) such expenses as are incurred by the Depositary in the conversion of foreign currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the execution and delivery of Receipts of the corresponding Series pursuant to Section 2.03, 4.03 or 4.04 and the surrender of Receipts of the corresponding Series pursuant to Section 2.05 or 6.02, (6) a fee for the distribution of securities pursuant to Section 4.02, such fee being in an amount equal to the fee for the execution and delivery of American Depositary Shares referred to above which would have been charged as a result of the deposit of such securities (for purposes of this clause 7 treating all such securities as if they were Shares) but which securities are instead distributed by the Depositary to Holders and (7) any other charge payable by the Depositary, any of the Depositary's agents, including the Custodian, or the agents of the Depositary's agents in connection with the servicing of Shares of any Series or other Deposited Securities (which charge shall be assessed against Holders as of the date or dates set by the Depositary in accordance with Section 4.06 and shall be payable at the sole discretion of the Depositary by billing such Holders for such charge or by deducting such charge from one or more cash dividends or other cash distributions).
8. PRE-RELEASE OF SHARES AND RECEIPTS.
The Depositary may issue Receipts against rights to receive Shares from the Company (or any agent of the Company recording Share ownership). No such issue of Receipts will be deemed a "Pre-Release" subject to the restrictions of the following paragraph.
The Depositary may execute and deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement (each such transaction is hereinafter referred to as a "Pre-Release"). The Depositary may, subject to the provisions of Section 2.06 of the Deposit Agreement, deliver Shares upon the receipt and cancellation of Receipts which have been pre-released, whether or not such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such Receipt has been pre-released. The Depositary may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written representation and agreement from the person to whom Receipts or Shares are to be delivered that such person, or its customer, beneficially owns the Shares or Receipts to be remitted, as the case may be, (b) at all times fully collateralized with cash or other collateral the Depositary deems appropriate, (c) terminable by the Depositary on five (5) business days' notice or less, and (d) subject to such further indemnities and credit regulation as the Depositary deems appropriate. The number of Shares not deposited but represented by American Depositary Shares outstanding at any time as a result of Pre-Releases will not normally exceed thirty percent (30%) of the Shares deposited hereunder, provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as it deems appropriate, and may after consultation with the Company change such limit for purposes of general application. The Depositary will also set Dollar limits with respect to Pre-Release transactions to be entered into hereunder with any particular Pre-Release on a case-by-case basis as the Depositary deems appropriate. For purposes of enabling the Depositary to fulfill its obligations to the Holder under this Receipt and the Deposit Agreement, the collateral referred to in clause (b) above shall be held by the Depositary as security for the performance of the Pre-Releasee's obligations to the Depositary in connection with a Pre-Release transaction, including the Pre-Releasee's obligation to deliver Shares or Receipts upon termination for a Pre-Release transaction (and shall not, for the avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder of this Receipt by accepting or holding the same consents and agrees, that title to this Receipt when properly endorsed or accompanied by a properly executed instrument of transfer and transferred in accordance with the terms of the Deposit Agreement, including, without limitation, Section 2.04 and 2.07, is transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that the Depositary and the Company, notwithstanding any notice to the contrary, may treat the person in whose name this Receipt is registered on the books of the Depositary as the absolute owner hereof for all purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized signatory of the Depositary, provided, however, that such signature may be a facsimile if a Registrar for this Receipt shall have been appointed and the Receipt is countersigned by the manual signature of a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to periodic reporting requirements of the Securities Exchange Act of 1934 and, accordingly, files certain reports with the Securities and Exchange Commission (hereinafter called the "Commission"). Such reports and documents are available for inspection and copying by Holders at the public reference facilities maintained by the Commission located at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Depositary will make available for inspection by Holders of this Receipt at the Depositary's Corporate Trust Office any notices, reports and other communications received from the Company which may be (a) received by the Depositary, the Custodian or their respective nominees as the holder of the Deposited Securities and (b) made generally available to the holders of such Deposited Securities by the Company.
The Company will arrange for the translation into English, if not already in English, to the extent required pursuant to any rules or regulations of the Commission, and the prompt transmittal by the Company to the Depositary and the Custodian, of such notices and any other reports and communications, including any proxy soliciting materials, which are made generally available by the Company to holders of its Shares or other Deposited Securities. If requested in writing by the Company, the Depositary will arrange for the mailing, at the Company's expense, of copies of such notices, reports and communication that are made generally available by the Company to holders of its Shares or other Deposited Securities and/or, at the written request of the Company and at the Company's expense, make such notices, reports and other communications available to all Holders on a basis similar to that for Holders of Shares or other Deposited Securities, or on such other basis as the Company may advise the Depositary is required or as the Depositary may be required by any applicable law or regulation. The Company will timely provide the Depositary with the quantity of such notices, reports and communications, including any proxy soliciting materials, as requested by the Depositary from time to time, in order for the Depositary to effect such mailings. The Depositary will, at the expense of the Company, make such copy and such notices, reports and communications available for inspection by Holders at the Depositary's Corporate Trust Office, at the office of the Custodian and at any other designated transfer offices.
The Depositary will keep at its Corporate Trust Office a book or books for the transfer and registration of Receipts, which at all reasonable times shall be open for inspection by the Holders hereof; provided that such inspection shall not be for the purpose of communicating with Holders hereof in the interest of a business or object other than the business of the Company or a matter related to the Deposit Agreement or this Receipt.
The Depositary may close the books, at any time from time to time, when reasonably deemed expedient by it in connection with the performance of its duties under the Deposit Agreement or at the request of the Company.
12. DIVIDENDS AND DISBURSEMENTS.
Whenever the Depositary or the Custodian receives any cash dividend or other cash distribution on any Deposited Securities, the Depositary will, if at the time of receipt thereof any amounts received in a foreign currency can in the judgment of the Depositary be converted on a reasonable basis into Dollars transferable to the United States, and subject to the Deposit Agreement, as promptly as practicable convert or cause to be converted such dividend or distribution into Dollars and will promptly distribute the Dollars thereby received (net of the fees, expenses and charges of the Depositary as provided in Section 5.09 of the Deposit Agreement) to each Holder of this Receipt on the record date fixed pursuant to Section 4.06 of the Deposit Agreement in proportion to the number of American Depositary Shares held by each such Holder, respectively; provided, however, that in the event that any of the deposited Shares are not entitled, by reason of their dates of issuance, or otherwise, to receive the full amount of such cash dividend or distribution, the Depositary will make appropriate adjustments in the amounts distributed to the Holders of the Receipts issued in respect of such Shares; and provided, further, that in the event that the Company or the Depositary is required to withhold and does withhold from such cash dividend or other cash distribution in respect of any Deposited Securities an amount on account of taxes, the amount distributed on the Receipts issued in respect of such Deposited Securities shall be reduced accordingly. The Depositary shall distribute only such amounts, however, as can be distributed without attributing to any Holder of a Receipt a fraction of one cent. Any such fractional amounts shall be rounded to the nearest whole cent and so distributed to Holders entitled thereto. The Company or its agent will remit to the appropriate governmental agency in the United Kingdom all amounts withheld and owing to such agency. The Depositary will forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file necessary reports with governmental agencies, and the Depositary or the Company or its agent may file any such reports necessary to obtain benefits under the applicable tax treaties for the Holders of Receipts.
Whenever the Depositary receives any distribution upon the
Deposited Securities other than cash, Shares or rights pursuant to Section 4.01,
4.03 or 4.04 of the Deposit Agreement, the Depositary will cause such amount of
the securities or property received by it to be distributed as promptly as
practicable to the Holders of Receipts on the record date fixed pursuant to
Section 4.06 of the Deposit Agreement, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by each of them,
respectively in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made among the Holders
of Receipts entitled thereto in proportion to the number of American Depositary
Shares held by each of them or if for any other reason (including, but not
limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Holders of this Receipt) the Depositary deems such distribution not to be
lawful or feasible, the Depositary may after consultation with the Company to
the extent practicable adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including, but not limited to,
the sale, at public or private sale, of the securities or property thus
received, or any part thereof, at such place or places and upon such terms as it
deems proper and the net proceeds of any such sale (net of the fees, expenses
and charges of the Depositary as provided in Article 7 hereof and Section 5.09
of the Deposit Agreement) shall be distributed by the Depositary to the Holders
of Receipts entitled thereto as in the case of a distribution received in cash,
all in the manner and subject to the conditions set forth in the Deposit
Agreement.
If any distribution consists of a dividend in, or free
distribution of Shares, the Depositary may, and shall, if the Company so
requests, distribute to the Holders of Receipts on the record date fixed
pursuant to Section 4.06 of the Deposit Agreement, in proportion to the number
of American Depositary Shares held by each of them, additional Receipts in the
same form or an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 of the Deposit Agreement and the payment of the fees, expenses and
charges of the Depositary as provided in Article 7 hereof and Section 5.09 of
the Deposit Agreement. In lieu of delivering Receipts for fractional American
Depositary Shares, the Depositary will sell the amount of Shares represented by,
the aggregate of such fractions, at public or private sale, at such place or
places and upon such terms as it may deem proper, and distribute the net
proceeds of any such sale in accordance with Section 4.01 of the Deposit
Agreement. If additional Receipts are not so distributed (except as pursuant to
the preceding sentence), each American Depositary Share shall thenceforth also
represent its proportionate interest in the additional Shares so distributed
upon such Deposited Securities.
In the event that the Depositary determines that any distribution in property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which the Depositary is obligated to withhold, the Depositary may, by public or private sale, dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner as the Depositary deems necessary and practicable to pay any such taxes or charges and the Depositary shall distribute the net proceeds of any such sale after deduction of such taxes or charges to the Holders of this Receipt entitled thereto in proportion to the number of American Depositary Shares held by them, respectively.
The Company or its agent will remit to the appropriate governmental agency in the United Kingdom all amounts withheld and owing to such agency. The Depositary will forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file necessary reports with agencies, and the Depositary or the Company or its agent may file any such reports necessary to obtain benefits under the applicable tax treaties for the Holders of Receipts.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the Holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall have discretion as to the procedure to be followed in making such rights available to any Holders or in disposing of such rights on behalf of any Holders and making the net proceeds available to such Holders in accordance with the procedures for distributing cash provided for in Section 4.01 of the Deposit Agreement, or, if by the terms of such rights offering or for any other reason it would not be lawful or feasible for the Depositary either to make such rights available to any Holders or to dispose of such rights and make the net proceeds available to such Holders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Holders but not to other Holders, the Depositary may, and shall if the Company so requests, distribute to any Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Holder, warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed generally, if the Depositary determines in its discretion that it is lawful and feasible to make such rights available to certain Holders, the Depositary will, subject to applicable law, make such rights available to such Holders upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Holder has executed such documents as the Company and the Depositary have determined are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights to all or certain Holders, then upon instruction from any such Holder pursuant to such warrants or other instruments to the Depositary from such Holder to exercise such rights, upon payment by such Holder to the Depositary for the account of such Holder of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Holder, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Holder. As agent for such Holder, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement, execute and deliver Receipts to such Holder. In the case of a distribution pursuant to this paragraph, such Receipts shall bear a legend in accordance with applicable U.S. laws, and shall be subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful or feasible to make such rights available to all or certain Holders, it may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Holders to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees, expenses and charges of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights, and subject to the terms and conditions of the Deposit Agreement) for the account of such Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Holders on account of exchange restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Holders unless it has received from the Company evidence, as provided in Section 5.07 of the Deposit Agreement, to the effect that (i) a registration statement under the Securities Act covering such offering is in effect or (ii) such offering does not require registration under the Securities Act. If a Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no registration under the Securities Act, the Depositary will not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Holder is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Holders in general or any Holder in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency,
received by way of dividends or other distributions or in the form of the net
proceeds from the sale of securities, property or rights, and if, at the time,
the foreign currency so received can in the judgment of the Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall promptly convert or cause
to be converted, by sale or in any other manner that it may determine, such
foreign currency into Dollars, and such Dollars (less any reasonable and
customary expenses incurred by the Depositary in the conversion of such foreign
currency) shall be promptly distributed to the Holders entitled thereto or, if
the Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of exchange restrictions,
the date of delivery of any Receipt or otherwise and shall be net of any
expenses of conversion into Dollars incurred by the Depositary as provided in
Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval or license of any government or agency thereof, the Depositary shall file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any foreign currency received by the Depositary is not convertible into Dollars transferable to the United States, or if any approval or license of any government or agency thereof which is required for such conversion is denied or in the opinion of the Depositary cannot be obtained, or if any such approval or license is not obtained within a reasonable period as determined by the Depositary, the Depositary may in its discretion, but subject to applicable laws and regulations, either (i) distribute such foreign currency (or an appropriate document evidencing the right to receive such foreign currency) to the Holders of Receipts entitled to receive the same, or (ii) hold such foreign currency for the respective accounts of such persons, uninvested and without liability for interest.
If any such conversion of foreign currency, in whole or in part, can be effected as aforesaid for distribution to some but not all of the Holders of Receipts entitled thereto, the Depositary may in its discretion make such conversion and distribution in Dollars, to the extent such currency shall be convertible as aforesaid, to the Holders of Receipts entitled thereto and, with respect to the balance of such foreign currency, shall in its discretion, but subject to any applicable law and regulations, either (i) distribute or make available for distribution such balance to the persons who were Holders of Receipts entitled thereto with respect to whom such conversion could not then be effected, or (ii) hold such balance for the respective accounts of such persons, uninvested and without liability for interest.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date (a) for the determination of
the Holders of Receipts who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting, or
(b) on or after which each American Depositary Share will represent the changed
number of Shares, subject to the provisions of the Deposit Agreement. Such
record date will, to the extent practicable, be the same record date as any
corresponding record date set by the Company for such purpose or, if different,
fixed after consultation with the Company.
16. VOTING OF DEPOSITED SECURITIES.
(a) Upon receipt of notice of any meeting of holders of Shares or other Deposited Securities, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, mail to the Holders of Receipts a notice, the form of which notice shall be in the sole discretion of the Depositary, which shall contain (a) such information as is contained in such notice of meeting, (b) a statement that such Holders of Receipts at the close business on a specified record date will be entitled, subject to any applicable provision of English law or of the Articles of Association of the Company, to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the amount of Shares or other Deposited Securities represented by their respective American Depositary Shares, and (c) a brief statement as to the manner in which such instructions may be given. Upon the written request of a Holder of a Receipt on such record date, received on or before the date established by the Depositary for such purpose, the Depositary shall endeavor, in so far as practicable to vote or cause to be voted the amount of Shares or other Deposited Securities represented by such Receipt in accordance with the instructions set forth in such request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the Shares or other Deposited Securities except in accordance with such instructions.
There can be no assurance that Holders generally or any Holder in particular will receive the notice described in the preceding paragraph sufficiently to ensure that the Holder can instruct the Depositary to vote the Shares or Deposited Securities in accordance with the provisions set forth in the preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES, RECLASSIFICATION, RECAPITALIZATIONS, ETC.
In circumstances where the provisions of Section 4.03 of the Deposit Agreement do not apply, upon any change in par or nominal value, sub-division, consolidation, or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger, amalgamation or consolidation, or sale of assets affecting the Company or to which it is a party, any securities which shall be received by the Depositary or the Custodian in exchange for or in conversion of or in respect of Deposited Securities shall be treated as new Deposited Securities under the Deposit Agreement, and each American Depositary Share will thenceforth represent, in addition to the existing Deposited Securities, if any, the right to receive a proportional interest in the new deposited securities; Receipts then outstanding shall thenceforth represent, in addition to the existing Deposited Securities, if any, the new Deposited Securities so received in exchange for or on conversion of or in respect of Deposited Securities, unless additional or new Receipts are delivered pursuant to the following sentence. In any such case, the Depositary may, and shall if the Company shall so request, execute and deliver additional Receipts as in the case of a dividend in Shares, or may call for the surrender of outstanding Receipts to be exchanged for new Receipts specifically describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary, the Custodian nor the Company shall incur any liability to any Holder or Beneficial Owner of any Receipt, if by reason of any provision of any present or future law or regulation of the United States of America, any state thereof, the United Kingdom or of any other country, or of any other action of any governmental or regulatory authority of the United States, the United Kingdom, or any other country or of any stock exchange, or by reason of any provision, present or future, of the Articles of Association of the Company, or by reason of any act of God or war or terrorism or other circumstances beyond its control, the Depositary, the Custodian or the Company, as the case may be, shall be delayed in, prevented or forbidden from or subjected to any civil or criminal penalty on account of doing or performing any act or thing which by the terms of the Deposit Agreement it is provided shall be done or performed; nor shall the Depositary, the Custodian or the Company incur any liability to any Holder or Beneficial Owner of a Receipt by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or thing which, by the terms of the Deposit Agreement, it is provided shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or distribution pursuant to Section 4.04 of the Deposit Agreement, such distribution or offering may not be made available to Holders of Receipts, and the Depositary may not dispose of such distribution or offering, on behalf of such Holder and make the net proceeds available to such Holder, then the Depositary shall not make such distribution or offering and shall allow any rights, if applicable, to lapse. The Depositary shall not perform any action required or permitted under the Deposit Agreement which shall be prohibited by the rules of any securities exchange on which the American Depositary Shares are listed for trading.
Neither the Depositary, the Custodian nor the Company assumes any obligation or shall be subject to any liability under the Deposit Agreement to Holders or Beneficial Owners of this Receipt, other than that each of them agrees to perform its obligations and duties specifically set forth in the Deposit Agreement without negligence or bad faith. The Depositary shall not be subject to any liability with respect to the validity or worth of the Deposited Securities. Neither the Depositary nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit, or other proceeding in respect of any Deposited Securities or in respect of the Receipts, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expenses and liabilities shall be furnished as often as may be required, and the Custodian shall not be under any obligation whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to the Depositary. Neither the Depositary, the Custodian, nor the Company shall be liable for any action or non-action by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Holder or Beneficial Owner of a Receipt, or any other person believed by it in good faith to be competent to give such advice or information. The Depositary, the Custodian and the Company may rely and shall be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. Neither the Depositary nor the Custodian shall be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner or effect of any such vote made either with or without request, or for not exercising any right to vote, as long as any such action or non-action is in good faith. The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with a matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises, the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
No disclaimer of liability under the Securities Act is intended by any provisions of the Deposit Agreement.
The Depositary may own and deal in any class of securities of the Company and its affiliates and in Receipts.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR DEPOSITARY; APPOINTMENT OF SUBSTITUTE OR CUSTODIANS.
The Depositary may at any time resign as Depositary hereunder by written notice of its election so to do delivered to the Company and the Custodian, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement. The Depositary may at any time be removed by the Company by 90 days' prior written notice of such removal delivered to the Depositary and the Custodian, such removal to become effective upon the later of the (i) 90th day after delivery of the notice to the Depositary or (ii) appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement. Whenever the Depositary in its discretion determines that it is in the best interest of the Holders of Receipts to do so, it may appoint a substitute or additional custodian or custodians, which shall thereafter be one of the Custodians under the Deposit Agreement.
20. AMENDMENT.
The form of this Receipt and any provisions of the Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or desirable. Any amendment which shall impose or have the effect of increasing any fees or charges payable by the Holders of Receipts (other than taxes or other governmental charges, registration fees and cable, telex or facsimile transmission and delivery expenses), or which shall otherwise prejudice any substantial existing right of Holders of Receipts, shall not become effective as to outstanding Receipts until the expiration of thirty (30) days after notice of such amendment shall have been given to the Holders of outstanding Receipts. Every Holder of an outstanding Receipt at the time any such amendment so becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right of the Holder of any Receipt to surrender such Receipt and receive therefor the Deposited Securities represented thereby except in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the
Company terminate the Deposit Agreement by mailing notice of such termination to
the Holders hereof at least ninety (90) days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Holders,
if at any time ninety (90) days shall have expired after the Depositary shall
have delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in the Deposit Agreement. On and after the date of termination, the
Holder of a Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 5.09 of the Deposit Agreement, and
(c) payment of any applicable taxes or other governmental charges, be entitled
to delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in the Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (without
liability for interest and after deducting, in each case, the fee of the
Depositary for the surrender of such Receipt, any expenses for the account of
the Holder of such Receipt in accordance with the terms and conditions of the
Deposit Agreement and any applicable taxes or other governmental charges). At
any time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold uninvested and without liability for interest
the net proceeds of any such sale, together with any other cash then held by it
thereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Holders of Receipts which have not theretofore been surrendered,
such Holders thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement as to the Receipts, and the
Shares, Deposited Securities and American Depositary Shares, except to account
for such net proceeds and other cash (after deducting, in each case, the fee of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Holder of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or other governmental charges). Upon
the termination of the Deposit Agreement, the Depositary and the Company shall
be discharged from all obligations under the Deposit Agreement as to the
Receipts, and the Shares, Deposited Securities and American Depositary Shares,
except for their respective obligations under Section 5.08 of the Deposit
Agreement and the Company's obligations to the Depositary under Section 5.09 of
the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the contrary, the Company and the Depositary each agrees that it will not exercise any rights it has under the Deposit Agreement to permit the withdrawal or delivery of Deposited Securities in a manner which would violate the U.S. securities laws, including, but not limited to, Section I.A.(1) of the General Instructions to the Form F-6 Registration Statement, as amended from time to time, under the Securities Act of 1933.
23. REDEMPTION.
If the Depositary receives a notice from or on behalf of the Company that Shares of any Series are called for redemption, the Depositary shall send to the Holders:
(i) a copy of that notice; and
(ii) a notice calling for the surrender of Receipts evidencing a number of American Depositary Shares representing the number of deposited Shares that the Company called for redemption.
On or prior to the date set by the Company for the redemption, the Depositary shall deliver for redemption a number of deposited Shares represented by the American Depositary Shares evidenced by the Receipts that have been surrendered to the Depositary prior to that date pursuant to the Depositary's call for surrender. Thereafter, the Depositary shall deliver for redemption deposited Shares that the Company called for redemption but that the Depositary has not already surrendered hereunder, such delivery being without unreasonable delay after Receipts evidencing a number of American Depositary Shares representing those Shares are surrendered to the Depositary pursuant to the Depositary's call for surrender, provided that the Company shall be under no obligation hereunder to redeem any such further Shares so delivered.
When the Depositary receives entitlements in respect of deposited Shares delivered by the Depositary for redemption, the Depositary shall cancel surrendered Receipts evidencing the corresponding number of American Depositary Shares and distribute those entitlements to the Holders entitled to them in accordance with applicable provisions of this Deposit Agreement, after deduction or upon payment of the fees and expenses of the Depositary applicable in the case of surrender of Receipts for the purpose of withdrawal of Deposited Securities. If the Depositary will distribute entitlements in respect of less than all the American Depositary Shares evidenced by a Receipt, the Depositary shall execute and deliver to the Holder of that Receipt a Receipt evidencing American Depositary Shares in respect of which it is not distributing entitlements.
The Company is not entitled to exercise any right to redeem deposited Shares that form part of deposited Units of Shares unless it redeems whole deposited Units of Shares.
If the Depositary receives a notice of redemption of less than all of the deposited Shares of any Series, the Depositary may determine which Receipts to call for surrender or what number of American Depositary Shares evidenced by any Receipt to call for surrender in any manner that it reasonably determines to be fair and practical.
EXHIBIT B
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share of any Series shall
represent the right to receive
one (or a fraction or multiple
of one) Share of such Series)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR SHARE UNITS
CONSISTING OF
DOLLAR-DENOMINATED PREFERENCE SHARES OF
SERIES____________*
(NOMINAL VALUE $0.01)
HSBC HOLDINGS PLC
(A COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND)
THE BANK OF NEW YORK, as depositary (hereinafter called the
"Depositary"), hereby certifies that
__________________________________________________________, or registered
assigns IS THE OWNER OF _____________________________________________.
AMERICAN DEPOSITARY SHARES
representing deposited Dollar-denominated Preference Shares of Series________*, nominal value $0.01 each (herein called "Shares") of HSBC Holdings plc, a company incorporated under the laws of England (herein called the "Company"). At the date hereof, each American Depositary Share of any Series shall represent the right to receive one (or a fraction or multiple of one) Share deposited or subject to deposit under the Deposit Agreement (as such is hereinafter defined) at the London office of The Bank of New York, (herein called the "Custodian"). The Depositary's Corporate Trust Office is located at 101 Barclay Street, New York, N.Y. 10286. The Depositary's principal executive office is located at One Wall Street, New York, N.Y. 10286.
* Insert Series designation(s) and any additional designation of the relevant Series of Dollar-denominated Preference Shares.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286.
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called "Receipts"), all issued and to be issued upon the terms and conditions set forth in the deposit agreement, dated as of o 2002 (herein called the "Depositary Agreement"), by and among the Company, the Depositary, and Holders and Beneficial Owners from time to time of Receipts issued thereunder, each of whom by accepting a Receipt agrees to become a party thereto and become bound by all the terms and conditions thereof. The Deposit Agreement sets forth the rights of Holders and Beneficial Owners of the Receipts and the rights and duties of the Depositary in respect of the Shares deposited thereunder and any and all other securities, property and cash from time to time received in respect of such shares and held thereunder (such Shares, securities, property, and cash are herein called "Deposited Securities"). Copies of the Deposit Agreement are on file at the Depositary's Corporate Trust Office in New York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries of certain provisions of the Deposit Agreement and are qualified by and subject to the detailed provisions of the Deposit Agreement, to which reference is hereby made. Capitalized terms defined in the Deposit Agreement and not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender of this Receipt at the Depositary's Corporate Trust Office, or at such other office as the Depositary may designate, for the purpose of withdrawal of the Deposited Securities represented by the American Depositary Shares evidenced hereby, and upon payment of the fees and expenses of the Depositary for the cancellation of Receipts provided in Section 5.09 of the Deposit Agreement and payment of and subject to the terms and conditions of the Company's Articles of Association, the Deposited Securities and the Deposit Agreement, and to any other restriction applicable thereto, the Holder hereof is entitled to delivery, to him or upon his order, of the Shares and any other Deposited Securities at the time represented by this Receipt. Delivery of such Deposited Securities may be made by the delivery of (a) certificates in the name of the Holder hereof or as ordered by him or, by the delivery of certificates properly endorsed or accompanied by proper instruments of transfer to such Holder or as ordered by him and (b) of any other securities, property and cash to which such Holder is then entitled in respect of this Receipt. Such delivery will be made either at the Corporate Trust Office of the Depositary or at such other place as may be reasonably requested by the Holder, as provided in the Deposit Agreement; provided that the forwarding of certificates for Shares or other Deposited Securities for such delivery at the Corporate Trust Office of the Depositary or at such other place shall be at the risk and expense of the Holder hereof.
3. TRANSFER OF RECEIPTS; COMBINATIONS AND SPLIT-UPS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary by the Holder hereof in person or by a duly authorized attorney, upon surrender at the Depositary's designated transfer offices of this Receipt of a particular Series properly endorsed or accompanied by a properly executed instrument of transfer and duly stamped as required by applicable law. This Receipt of such Series may be split into other such Receipts, or may be combined with other such Receipts into one Receipt of such Series, evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts of such Series surrendered.
As a condition precedent to the execution and delivery, registration of transfer, split-up, combination, or surrender of any Receipt, the delivery of any distribution thereon, or withdrawal of any Deposited Securities, the Depositary, the Company, the Custodian, or Foreign Registrar, if applicable, may require (a) payment from the depositor of the Share or the presenter of the Receipt of a sum sufficient to pay (i) any tax or other governmental charge and any stock transfer or registration fees in respect of Receipts or with respect to the Receipts of such other Series as may be printed on the same certificate, (ii) any tax or other governmental charge and any stock transfer or registration fees in respect of registration of transfers of Shares or the Deposited Securities upon any applicable register; and (iii) any fees of the Depositary as provided in Section 5.09 of the Deposit Agreement; (b) the production of proof satisfactory to it as to the identity and genuineness of any signature and as to any other matter contemplated by Section 3.01 of the Deposit Agreement; and (c) compliance with such reasonable regulations as the Depositary and Company may establish consistent with the provisions of the Deposit Agreement or this Receipt, including, without limitation, this Article 3.
The delivery of Receipts of a particular Series against deposits of Shares of the corresponding Series generally or against deposits of particular Shares of the corresponding Series may be suspended, or the transfer of Receipts of a particular Series in particular instances may be refused, or the registration of transfer of outstanding Receipt of a particular Series, or the combination or split-up of Receipts of a particular Series, generally may be suspended, during any period when the transfer books of the Depositary or any register for such Shares or Series or other Deposited Securities are closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental agency or commission, or under any provision of the Deposit Agreement or this Receipt, or for any other reason. Notwithstanding any other provision of the Deposit Agreement or this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited Securities may be suspended only for (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the deposit of Shares in connection with voting at a shareholders' meeting, or the payment of dividends, (ii) the payment of fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the Receipts or to the withdrawal of the Deposited Securities, or (iv) any other reason that may at any time be specified in paragraph I(A)(l) of the General Instructions to Form F-6, as from time to time in effect, or any successor provision thereto. Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under the Deposit Agreement any Shares of a particular Series which are required to be registered under the provisions of the Securities Act of 1933, unless a registration statement is in effect as to such Shares.
4. LIABILITY OF HOLDER FOR TAXES.
If any tax or other governmental charge shall become payable with respect to this Receipt or with respect to any Deposited Securities represented by American Depositary Shares of any other Series evidenced hereby, such tax or other governmental charge shall be payable by the Holder hereof to the Depositary. The Depositary may deduct the amount of any taxes owed from any payments to the Holder hereof. The Depositary may restrict or refuse to effect any transfer of this Receipt or any combination or split-up thereof or any withdrawal of Deposited Securities represented by American Depositary Shares evidenced hereby until such payment is made, and may withhold any dividends or other distributions or may sell any part or all of the Deposited Securities represented by the American Depositary Shares evidenced by this Receipt and may apply such dividends or other distributions or the proceeds of any such sale in payment of such tax or other governmental charge (and any taxes or expenses arising out of such sale), the Holder hereof remaining liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit Agreement shall be deemed thereby to represent and warrant that such Shares and each certificate therefor are validly issued, fully paid, non-assessable, and free of any pre-emptive rights of the holders of outstanding Shares and that the person making such deposit is duly authorized so to do. Every such person shall also be deemed to represent that (i) Shares presented for deposit are not, and the Receipts evidencing the American Depositary Shares representing such Shares would not be, restricted securities within the meaning of Rule 144(a)(3) under the Securities Act of 1933, and (ii) the deposit of such Shares and the sale of Receipts evidencing American Depositary Shares representing such Shares by that person are not otherwise restricted under the Securities Act of 1933. Such representations and warranties shall survive the deposit of Shares and the execution and delivery of Receipts in respect thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder or Beneficial Owner of a Receipt may be required by the Depositary from time to time (i) to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, payment of applicable taxes or other governmental charges, legal or beneficial ownership of Receipts, Deposited Securities or other securities, compliance with all applicable laws or regulations or terms of the Deposit Agreement or such Receipt, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, or any other information the Depositary or the Company may deem necessary or appropriate to evidence compliance with all applicable laws and regulations, and (ii) to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper or as the Company may reasonably request by written request to the Depositary. The Depositary may withhold the delivery or registration of transfer of any Receipt or the distribution of any dividend or distribution of rights or of the sale proceeds thereof or the delivery of any Deposited Securities until such proof or other information is filed or such certificates are executed or such representations and warranties are made to the Depositary's satisfaction, and if the Company so requests in writing to the Depositary, to the Company's satisfaction. No Share shall be accepted for deposit unless accompanied by evidence satisfactory to the Depositary that any necessary approval has been granted by any governmental agency in the United Kingdom which is then performing the function of regulation of currency exchange. The Depositary shall provide the Company, in a timely manner, with copies of any such proofs, certificates or other information upon written request by the Company, unless such disclosure is prohibited.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket charges of the Depositary and those of any Registrar only in accordance with agreements in writing entered into between the Depositary and the Company from time to time. The Depositary shall present its statement for such charges and expenses to the Company at least once every three months. The charges and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or withdrawing Shares of any Series or by any party surrendering Receipts of a particular Series or to whom such Receipts are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of stock regarding the Receipts or Deposited Securities of a particular Series or a distribution of Receipts pursuant to Section 4.03), or by Holders, as applicable: (1) taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration of transfers of Shares of any Series generally on the Share register of the Company or Foreign Registrar for the corresponding Series and applicable to transfers of Shares of any Series to or from the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile transmission expenses as are expressly provided in this Deposit Agreement, (4) such expenses as are incurred by the Depositary in the conversion of foreign currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the execution and delivery of Receipts of the corresponding Series pursuant to Section 2.03, 4.03 or 4.04 and the surrender of Receipts of the corresponding Series pursuant to Section 2.05 or 6.02, (6) a fee for the distribution of securities pursuant to Section 4.02, such fee being in an amount equal to the fee for the execution and delivery of American Depositary Shares referred to above which would have been charged as a result of the deposit of such securities (for purposes of this clause 7 treating all such securities as if they were Shares) but which securities are instead distributed by the Depositary to Holders and (7) any other charge payable by the Depositary, any of the Depositary's agents, including the Custodian, or the agents of the Depositary's agents in connection with the servicing of Shares of any Series or other Deposited Securities (which charge shall be assessed against Holders as of the date or dates set by the Depositary in accordance with Section 4.06 and shall be payable at the sole discretion of the Depositary by billing such Holders for such charge or by deducting such charge from one or more cash dividends or other cash distributions).
8. PRE-RELEASE OF SHARES AND RECEIPTS.
The Depositary may issue Receipts of a Series against rights to receive Shares of a corresponding Series from the Company (or any agent of the Company recording Share ownership). No such issue of Receipts will be deemed a "Pre-Release" subject to the restrictions of the following paragraph.
The Depositary may execute and deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 of the Deposit Agreement (each such transaction is hereinafter referred to as a "Pre-Release"). The Depositary may, subject to the provisions of Section 2.06 of the Deposit Agreement, deliver Shares of a Series upon the receipt and cancellation of Receipts of the corresponding which have been pre-released, whether or not such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such Receipt has been pre-released. The Depositary may receive Receipts of a Series in lieu of Shares of the corresponding Series in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written representation and agreement from the person to whom Receipts or Shares are to be delivered that such person, or its customer, beneficially owns the Shares or Receipts to be remitted, as the case may be, (b) at all times fully collateralized with cash or other collateral the Depositary deems appropriate, (c) terminable by the Depositary on five (5) business days notice or less, and (d) subject to such further indemnities and credit regulation as the Depositary deems appropriate. The number of Shares of a Series not deposited but represented by American Depositary Shares outstanding at any time as a result of Pre-Releases will not normally exceed thirty percent (30%) of the Shares of such Series deposited hereunder, provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as it deems appropriate and may change such limit for purposes of general application. The Depositary will also set Dollar limits with respect to Pre-Release transactions to be entered into hereunder with any particular Pre-Release on a case-by-case basis as the Depositary deems appropriate. For purposes of enabling the Depositary to fulfill its obligations to the Holder under this Receipt and the Deposit Agreement, the collateral referred to in clause (b) above shall be held by the Depositary as security for the performance of the Pre-Releasee's obligations to the Depositary in connection with a Pre-Release transaction, including the Pre-Releasee's obligation to deliver Shares or Receipts upon termination for a Pre-Release transaction (and shall not, for the avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder of this Receipt by accepting or holding the same consents and agrees, that title to this Receipt when properly endorsed or accompanied by a properly executed instrument of transfer and transferred in accordance with the terms of the Deposit Agreement, including, without limitation, Section 2.04 and 2.07, is transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that the Depositary and the Company, notwithstanding any notice to the contrary, may treat the person in whose name this Receipt is registered on the books of the Depositary as the absolute owner hereof for all purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt of any Series shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized signatory of the Depositary, provided, however, that such signature may be a facsimile if a Registrar for this Receipt shall have been appointed and such Receipts are countersigned by the manual signature of a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to periodic reporting requirements of the Securities Exchange Act of 1934 and, accordingly, files certain reports with the Securities and Exchange Commission (hereinafter called the "Commission"). Such reports and documents are available for inspection and copying by Holders at the public reference facilities maintained by the Commission located at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Depositary will make available for inspection by Holders
of Receipts of any Series at the Depositary's Corporate Trust Office any
notices, reports and other communications received from the Company which may be
(a) received by the Depositary, the Custodian or their respective nominees as
the holder of the Deposited Securities of the corresponding Series and (b)
generally available to the holders of such Deposited Securities by the Company.
The Company will arrange for the translation into English, if not already in English, to the extent required pursuant to any rules or regulations of the Commission, and the prompt transmittal by the Company to the Depositary and the Custodian, of such notices and any other reports and communications, including any proxy soliciting materials, which are made generally available by the Company to holders of its Shares or other Deposited Securities. If requested in writing by the Company, the Depositary will arrange for the mailing, at the Company's expense, of copies of such notices reports and communication that are made generally available by the Company to holders of its Shares or other Deposited Securities and/or, at the written request of the Company and at the Company's expense, make such notices, reports and other communications available to all Holders on a basis similar to that for Holders of Shares or other Deposited Securities, or on such other basis as the Company may advise the Depositary is required or as the Depositary may be required by any applicable law or regulation. The Company will timely provide the Depositary with the quantity of such notices, reports and communications, including any proxy soliciting materials, as requested by the Depositary from time to time, in order for the Depositary to effect such mailings. The Depositary will, at the expense of the Company, make such copy and such notices, reports and communications available for inspection by Holders at the Depositary's Corporate Trust Office, at the office of the Custodian and at any other designated transfer offices.
The Depositary will keep at its Corporate Trust Office a book or books for the transfer and registration of Receipts for each Series, which at all reasonable times shall be open for inspection by the Holders of such Receipts; provided that such inspection shall not be for the purpose of communicating with Holders of such Receipts in the interest of a business or object other than the business of the Company or a matter related to the Deposit Agreement or the Receipts of such Series.
The Depositary may close the books, at any time from time to time, when reasonably deemed expedient by it in connection with the performance of its duties under the Deposit Agreement or at the request of the Company.
12. DIVIDENDS AND DISBURSEMENTS.
Whenever the Depositary or the Custodian receives any cash dividend or other cash distribution on any Deposited Securities, the Depositary will, if at the time of receipt thereof any amounts received in a foreign currency can in the judgment of the Depositary be converted on a reasonable basis into Dollars transferable to the United States, and subject to the Deposit Agreement, as promptly as practicable convert or cause to be converted such dividend or distribution into Dollars and will promptly distribute the Dollars thereby received (net of the fees, expenses and charges of the Depositary as provided in Section 5.09 of the Deposit Agreement) to each Holder of this Receipt on the record date fixed pursuant to Section 4.06 of the Deposit Agreement in proportion to the number of American Depositary Shares held by each such Holder, respectively; provided, however, that in the event that any of the deposited Shares are not entitled, by reason of their dates of issuance, or otherwise, to receive the full amount of such cash dividend or distribution, the Depositary will make appropriate adjustments in the amounts distributed to the Holders of the Receipts issued in respect of such Shares; and provided, further, that in the event that the Company or the Depositary is required to withhold and does withhold from such cash dividend or other cash distribution in respect of any Deposited Securities an amount on account of taxes, the amount distributed on the Receipts issued in respect of such Deposited Securities shall be reduced accordingly. The Depositary shall distribute only such amounts, however, as can be distributed without attributing to any Holder of a Receipt a fraction of one cent. Any such fractional amounts shall be rounded to the nearest whole cent and so distributed to Holders entitled thereto. The Company or its agent will remit to the appropriate governmental agency in the United Kingdom all amounts withheld and owing to such agency. The Depositary will forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file necessary reports with governmental agencies, and the Depositary or the Company or its agent may file any such reports necessary to obtain benefits under the applicable tax treaties for the Holders of Receipts.
Whenever the Depositary receives any distribution upon the
Deposited Securities other than cash, Shares of the corresponding Series or
rights pursuant to Section 4.01, 4.03 or 4.04 of the Deposit Agreement of a
particular Series, the Depositary will cause such amount of the securities or
property received by it to be distributed to the Holders of Receipts of such
Series on the record date fixed pursuant to Section 4.06 of the Deposit
Agreement, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them, respectively in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution; provided, however, that if in the opinion of the Depositary
such distribution cannot be made among the Holders of such Receipts entitled
thereto in proportion to the number of American Depositary Shares of the
corresponding Series held by each of them or if for any other reason (including,
but not limited to, any requirement that the Company or the Depositary withhold
an amount on account of taxes or other governmental charges or that such
securities must be registered under the Securities Act of 1933 in order to be
distributed to Holders of this Receipt) the Depositary deems such distribution
not to be lawful or feasible, the Depositary may after consultation with the
Company to the extent practicable adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the sale, at public or private sale, of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it deems proper and the net proceeds of any such sale (net of the fees,
expenses and charges of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement) shall be distributed by the Depositary to
the Holders of Receipts entitled thereto as in the case of a distribution
received in cash, all in the manner and subject to the conditions set forth in
the Deposit Agreement.
If any distribution consists of a dividend in, or free distribution of, Shares of the corresponding Series, the Depositary may, and shall, if the Company so requests, distribute to the Holders of Receipts on the record date fixed pursuant to Section 4.06 of the Deposit Agreement, in proportion to the number of American Depositary Shares held by each of them, additional Receipts in the same form or an aggregate number of American Depositary Shares of the corresponding Series representing the amount of such Shares received as such dividend or free distribution, subject to the terms and conditions of the Deposit Agreement with respect to the deposit of Shares and the issuance of American Depositary Shares evidenced by Receipts, including the withholding of any tax or other governmental charge as provided in Section 4.11 of the Deposit Agreement and the payment of the fees, expenses and charges of the Depositary as provided in Article 7 hereof and Section 5.09 of the Deposit Agreement. Notwithstanding the foregoing, the Depositary will not distribute additional Receipts in respect of any securities so received by it in respect of Shares of a Series that is a component of a Share Unit unless the securities so received consist of a dividend in, or free distribution of Shares of all the Series comprising such Share Unit. In lieu of delivering Receipts for fractional American Depositary Shares, the Depositary will sell the amount of Shares represented by, the aggregate of such fractions, at public or private sale, at such place or places and upon such terms as it may deem proper, and distribute the net proceeds of any such sale in accordance with Section 4.01 of the Deposit Agreement. If additional Receipts of a particular Series are not so distributed (except as pursuant to the preceding sentence), each American Depositary Share of the corresponding Series shall thenceforth also represent its proportionate interest in the additional Shares so distributed upon such Deposited Securities.
In the event that the Depositary determines that any distribution in property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which the Depositary is obligated to withhold, the Depositary may, by public or private sale, dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner as the Depositary deems necessary and practicable to pay any such taxes or charges, and the Depositary shall distribute the net proceeds of any such sale after deduction of such taxes or charges to the Holders of Receipts entitled thereto in proportion to the number of American Depositary Shares held by them, respectively.
The Company or its agent will remit to the appropriate governmental agency in the United Kingdom all amounts withheld and owing to such agency. The Depositary will forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file necessary reports with agencies, and the Depositary or the Company or its agent may file any such reports necessary to obtain benefits under the applicable tax treaties for the Holders of Receipts.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the Holders of any Deposited Securities of a particular Series any rights to subscribe for additional Shares of the corresponding Series or any rights of any other nature, the Depositary shall have discretion as to the procedure to be followed in making such rights available to any Holders or in disposing of such rights on behalf of any Holders and making the net proceeds available to such Holders in accordance with the procedures for distributing cash provided for in Section 4.01 of the Deposit Agreement, or, if by thc terms of such rights offering or for any other reason it would not be lawful or feasible for the Depositary either to make such rights available to any Holders or to dispose of such rights and make the net proceeds available to such Holders, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary determines in its discretion that it is lawful and feasible to make such rights available to all or certain Holders but not to other Holders, the Depositary may, and shall if the Company so requests, distribute to any Holder to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Holder, warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed generally, if the Depositary determines in its discretion that it is lawful and feasible to make such rights available to certain Holders, the Depositary will, subject to applicable law, make such rights available to such Holders upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Holder has executed such documents as the Company and the Depositary have determined are reasonably required under applicable law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon instruction from any
such Holder pursuant to such warrants or other instruments to the Depositary
from such Holder to exercise such rights, upon payment by such Holder to the
Depositary for the account of such Holder of an amount equal to the purchase
price of the Shares of a particular Series to be received upon the exercise of
the rights, and upon payment of the fees and expenses of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Holder, exercise the rights and purchase the Shares of
the corresponding Series, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Holder. As agent for such
Holder, the Depositary will cause the Shares so purchased to be deposited
pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to
Section 2.03 of the Deposit Agreement, execute and deliver Receipts of the
corresponding Series to such Holder. In the case of a distribution pursuant to
this paragraph, such Receipts shall bear a legend in accordance with applicable
U.S. laws, and shall be subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful or feasible to make such rights available to all or certain Holders, it may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares of a particular Series held by the Holders to whom it has determined it may not lawfully or feasibly make such rights available, allocate the net proceeds of such sales (net of the fees, expenses and charges of the Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes and other governmental charges payable in connection with such rights, and subject to the terms and conditions of the Deposit Agreement) for the account of such Holders otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Holders on account of exchange restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Holders unless it has received from the Company evidence, as provided in Section 5.07 of the Deposit Agreement, to the effect that (i) a registration statement under the Securities Act covering such offering is in effect or (ii) such offering does not require registration under the Securities Act. If a Holder of Receipts requests the distribution of warrants or other instruments, notwithstanding that there has been no registration under the Securities Act, the Depositary will not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company reasonably satisfactory to the Depositary upon which the Depositary may rely that such distribution to such Holder is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Holders in general or any Holder in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency,
received by way of dividends or other distributions or in the form of the net
proceeds from the sale of securities, property or rights, and if; at the time,
the foreign currency so received can in the judgment of the Depositary be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall promptly convert or cause
to be converted, by sale or in any other manner that it may determine, such
foreign currency into Dollars, and such Dollars (less any reasonable and
customary expenses incurred by the Depositary in the conversion of such foreign
currency) shall be promptly distributed to the Holders entitled thereto or, if
the Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of exchange restrictions,
the date of delivery of any Receipt or otherwise and shall be net of any
expenses of conversion into Dollars incurred by the Depositary as provided in
Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval or license of any government or agency thereof, the Depositary shall file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any foreign currency received by the Depositary is not convertible into Dollars transferable to the United States, or if any approval or license of any government or agency thereof which is required for such conversion is denied or in the opinion of the Depositary cannot be obtained, or if any such approval or license is not obtained within a reasonable period as determined by the Depositary, the Depositary may in its discretion, but subject to applicable laws and regulations, either (i) distribute such foreign currency (or an appropriate document evidencing the right to receive such foreign currency) to the Holders of Receipts entitled to receive the same, or (ii) hold such foreign currency for the respective accounts of such persons, uninvested and without liability for interest.
If any such conversion of foreign currency, in whole or in part, can be effected as aforesaid for distribution to some but not all of the Holders of Receipts entitled thereto, the Depositary may in its discretion make such conversion and distribution in Dollars, to the extent such currency shall be convertible as aforesaid, to the Holders of Receipts entitled thereto and, with respect to the balance of such foreign currency, shall in its discretion, but subject to any applicable law and regulations, either (i) distribute or make available for distribution such balance to the persons who were Holders of Receipts entitled thereto with respect to whom such conversion could not then be effected, or (ii) hold such balance for the respective accounts of such persons, uninvested and without liability for interest.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or whenever rights shall be issued with respect to the Deposited Securities of a particular Series, or whenever for any reason the Depositary causes a change in the number of Shares of a particular Series that are represented by each American Depositary Share of the corresponding Series, or whenever the Depositary shall receive notice of any meeting of holders of Shares or other Deposited Securities, the Depositary shall fix a record date (a) for the determination of the Holders of Shares of a particular Series of Receipts who shall be (i) entitled to receive such dividend, distribution or rights or the net proceeds of the sale thereof or (ii) entitled to give instructions for the exercise of voting rights at any such meeting, or (b) on or after which each American Depositary Share will represent the changed number of Shares, subject to the provisions of the Deposit Agreement. Such record date will, to the extent practicable, be the same record date as any corresponding record date set by the Company for such purpose or, if different, fixed after consultation with the Company.
16. VOTING OF DEPOSITED SECURITIES.
(a) Upon receipt of notice of any meeting of holders of Shares
of a particular Series or other Deposited Securities, if requested in writing by
the Company, the Depositary shall, as soon as practicable thereafter, mail to
the Holders of Receipts of the corresponding Series a notice, the form of which
notice shall be in the sole discretion of the Depositary, which shall contain
(a) such information as is contained in such notice of meeting, (b) a statement
that such Holders of Receipts of the corresponding Series at the close of
business on a specified record date will be entitled, subject to any applicable
provision of English law or of the Articles of Association of the Company, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares of such Series or other Deposited Securities
of the corresponding Series represented by their respective American Depositary
Shares, and (c) a brief statement as to the manner in which such instructions
may be given. Upon the written request of a Holder of a Receipt on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor, in so far as practicable to vote or
cause to be voted the amount of Shares of such Series or other Deposited
Securities represented by such Receipt in accordance with the instructions set
forth in such request. The Depositary shall not vote or attempt to exercise the
right to vote that attaches to the Shares of such Series or other Deposited
Securities except in accordance with such instructions.
There can be no assurance that Holders generally or any Holder in particular will receive the notice described in the preceding paragraph sufficiently to ensure that the Holder can instruct the Depositary to vote the Shares of a particular Series or Deposited Securities of the corresponding Series in accordance with the provisions set forth in the preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES, RECLASSIFICATION, RECAPITALIZATIONS, ETC.
(a) In circumstances where the provisions of Section 4.03 of the Deposit Agreement do not apply, upon any change in par or nominal value, sub-division, consolidation, or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger, amalgamation or consolidation, or sale of assets affecting the Company or to which it is a party, any securities which shall be received by the Depositary or the Custodian in exchange for or in conversion of or in respect of Deposited Securities shall be treated as new Deposited Securities under the Deposit Agreement and each American Depositary Share will thenceforth represent, in addition to the existing Deposited Securities, if any, the right to receive a proportional interest in the new deposited securities; Receipts then outstanding shall thenceforth represent, in addition to the existing Deposited Securities, if any, the new Deposited Securities so received in exchange for or on conversion of or in respect of Deposited Securities of the Series, unless additional or new Receipts are delivered pursuant to the following sentence. In any such case, the Depositary may, and shall if the Company shall so request, execute and deliver additional Receipts as in the case of a dividend in Shares, or may call for the surrender of outstanding Receipts to be exchanged for new Receipts of the corresponding Series specifically describing such new Deposited Securities; provided, however, that the Depositary will not distribute additional Receipts in respect of any securities so received by it in respect of Shares of a Series comprising a Share Unit unless the securities so received consist of Shares of all Series comprising such Share Unit.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary, the Custodian nor the Company shall incur any liability to any Holder or Beneficial Owner of any Receipt, if by reason of any provision of any present or future law or regulation of the United States of America, any state thereof, the United Kingdom or of any other country, or of any other action of any governmental or regulatory authority of the United States, the United Kingdom, or any other country or of any stock exchange, or by reason of any provision, present or future, of the Articles of Association of the Company, or by reason of any act of God or war or terrorism or other circumstances beyond its control, the Depositary, the Custodian or the Company, as the case may be, shall be delayed in, prevented or forbidden from or subjected to any civil or criminal penalty on account of doing or performing any act or thing which by the terms of the Deposit Agreement it is provided shall be done or performed; nor shall the Depositary, the Custodian or the Company incur any liability to any Holder or Beneficial Owner of a Receipt by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or thing which, by the terms of the Deposit Agreement, it is provided shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or distribution pursuant to Section 4.04 of the Deposit Agreement, such distribution or offering may not be made available to Holders of Receipts, and the Depositary may not dispose of such distribution or offering, on behalf of such Holder and make the net proceeds available to such Holder, then the Depositary shall not make such distribution or offering and shall allow any rights, if applicable, to lapse. The Depositary shall not perform any action required or permitted under the Deposit Agreement which shall be prohibited by the rules of any securities exchange on which the American Depositary Shares are listed for trading.
Neither the Depositary, the Custodian nor the Company assumes any obligation or shall be subject to any liability under the Deposit Agreement to Holders or Beneficial Owners of Receipts, other than that each of them agrees to perform its obligations and duties specifically set forth in the Deposit Agreement without negligence or bad faith. The Depositary shall not be subject to any liability with respect to the validity or worth of the Deposited Securities. Neither the Depositary nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit, or other proceeding in respect of any Deposited Securities or in respect of the Receipts, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expenses and liabilities shall be furnished as often as may be required, and the Custodian shall not be under any obligation whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to the Depositary. Neither the Depositary, the Custodian, nor the Company shall be liable for any action or non-action by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Holder or Beneficial Owner of a Receipt, or any other person believed by it in good faith to be competent to give such advice or information. The Depositary, the Custodian and the Company may rely and shall be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. Neither the Depositary nor the Custodian shall be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner or effect of any such vote made either with or without request, or for not exercising any right to vote, as long as any such action or non-action is in good faith. The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with a matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises, the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.
No disclaimer of liability under the Securities Act is intended by any provisions of the Deposit Agreement.
The Depositary may own and deal in any class of securities of the Company and its affiliates and in Receipts.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR DEPOSITARY; APPOINTMENT OF SUBSTITUTE OR CUSTODIANS.
The Depositary may at any time resign as Depositary hereunder with respect to any or all Series of Deposited Securities by written notice of its election so to do delivered to the Company and the Custodian, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement. The Depositary may with respect to any or all Series of Deposited Securities at any time be removed by the Company by 90 days' prior written notice of such removal delivered to the Depositary and the Custodian, such removal to become effective upon the later of the (i) 90th day after delivery of the notice to the Depositary or (ii) appointment of a successor depositary in respect of the Series of Deposited Securities with respect to which the Depositary is to be removed and its acceptance of such appointment as provided in the Deposit Agreement. Whenever the Depositary in its discretion determines that it is in the best interest of the Holders of Receipts to do so, it may appoint a substitute or additional custodian or custodians, which shall thereafter be one of the Custodians under the Deposit Agreement.
20. AMENDMENT.
The form of the Receipts of any particular Series and any provisions of the Deposit Agreement with respect to such Series may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or desirable. Any amendment which shall impose or have the effect of increasing any fees or charges payable by the Holders of Receipts of a particular Series (other than taxes or other governmental charges, registration fees and cable, telex or facsimile transmission and delivery expenses), or which shall otherwise prejudice any substantial existing right of Holders of such Receipts, shall not become effective as to outstanding Receipts of such Series until the expiration of thirty (30) days after notice of such amendment shall have been given to the Holders of outstanding Receipts of such Series. Every Holder of an outstanding Receipt of such Series at the time any such amendment so becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right of the Holder of any Receipt of any Series to surrender such Receipt and receive therefor the Deposited Securities of the corresponding Series represented thereby except in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary at any time, at the direction of the Company,
shall terminate the Deposit Agreement as to Shares of any or all Series and the
Deposited Securities, American Depositary Share and Receipts of all
corresponding Series by mailing notice of such termination to the Holders of all
Receipts of such Series then Outstanding at least ninety (90) days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement as to Shares of any or all Series and the
Deposited Securities, American Depositary Share and Receipts of all
corresponding Series by mailing notice of such termination to the Company and
the Holders of all Receipts of such Series then outstanding, if at any time
ninety (90) days shall have expired after the Depositary shall have delivered to
the Company a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment as
provided in the Deposit Agreement. On and after the date of termination, the
Holder of such Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 5.09 of the Deposit Agreement, and
(c) payment of any applicable taxes or other governmental charges, be entitled
to delivery, to him or upon his order, of the amount of Deposited Securities of
a particular Series represented by the American Depositary Shares of the
corresponding Series evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of Receipts of such Series, shall
suspend the distribution of dividends to the Holders thereof and shall not give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities of the corresponding Series,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts of the corresponding Series surrendered
to the Depositary (without liability for interest and after deducting, in each
case, the fee of the Depositary for the surrender of such Receipt, any expenses
for the account of the Holder of such Receipt in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or other
governmental charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell the Deposited Securities of a
particular Series then held under the Deposit Agreement and may thereafter hold
uninvested and without liability for interest the net proceeds of any such sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Holders of
Receipts of such Series which have not theretofore been surrendered, such
Holders thereupon becoming general creditors of the Depositary with respect to
such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement as to the Receipts of such
Series, and the Shares, Deposited Securities and American Depositary Shares of
the corresponding Series, except to account for such net proceeds and other cash
(after deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or other governmental charges). Upon the termination of the
Deposit Agreement, the Depositary and the Company shall be discharged from all
obligations under the Deposit Agreement as to the Receipts of such Series, and
the Shares, Deposited Securities and American Depositary Share of the
corresponding Series, except for their respective obligations under Section 5.08
of the Deposit Agreement and the Company's obligations to the Depositary under
Section 5.09 of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the contrary, the Company and the Depositary each agrees that it will not exercise any rights it has under the Deposit Agreement to permit the withdrawal or delivery of Deposited Securities in a manner which would violate the U.S. securities laws, including, but not limited to, Section I.A.(l) of the General Instructions to the Form F-6 Registration Statement, as amended from time to time, under the Securities Act of 1933.
23. REDEMPTION.
If the Depositary receives a notice from or on behalf of the Company that Shares of any Series are called for redemption, the Depositary shall send to the Holders:
(i) a copy of that notice; and
(ii) a notice calling for the surrender of Receipts evidencing a number of American Depositary Shares representing the number of deposited Shares that the Company called for redemption.
On or prior to the date set by the Company for the redemption, the Depositary shall deliver for redemption a number of deposited Shares represented by the American Depositary Shares evidenced by the Receipts that have been surrendered to the Depositary prior to that date pursuant to the Depositary's call for surrender. Thereafter, the Depositary shall deliver for redemption deposited Shares that the Company called for redemption but that the Depositary has not already surrendered hereunder, such delivery being without unreasonable delay after Receipts evidencing a number of American Depositary Shares representing those Shares are surrendered to the Depositary pursuant to the Depositary's call for surrender, provided that the Company shall be under no obligation hereunder to redeem any such further Shares so delivered.
When the Depositary receives entitlements in respect of deposited Shares delivered by the Depositary for redemption, the Depositary shall cancel surrendered Receipts evidencing the corresponding number of American Depositary Shares and distribute those entitlements to the Holders entitled to them in accordance with applicable provisions of this Deposit Agreement, after deduction or upon payment of the fees and expenses of the Depositary applicable in the case of surrender of Receipts for the purpose of withdrawal of Deposited Securities. If the Depositary will distribute entitlements in respect of less than all the American Depositary Shares evidenced by a Receipt, the Depositary shall execute and deliver to the Holder of that Receipt a Receipt evidencing American Depositary Shares in respect of which it is not distributing entitlements.
The Company is not entitled to exercise any right to redeem deposited Shares that form part of deposited Units of Shares unless it redeems whole deposited Units of Shares.
If the Depositary receives a notice of redemption of less than all of the deposited Shares of any Series, the Depositary may determine which Receipts to call for surrender or what number of American Depositary Shares evidenced by any Receipt to call for surrender in any manner that it reasonably determines to be fair and practical.
[LETTERHEAD OF CLEARY GOTTLIEB]
HSBC Holdings plc,
8 Canada Square,
London E14 5HQ
Ladies and Gentlemen:
We have acted as special U.S. counsel to HSBC Holdings plc, a public limited company incorporated under the laws of England and Wales (the "Company") in connection with the Company's registration under the Securities Act of 1933, as amended (the "Act") pursuant to a registration statement on Form F-3 (Registration No. 333-92024) (the "Registration Statement") of inter alia, its dated subordinated debt securities (the "Dated Securities") and its undated subordinated debt securities (the "Undated Securities"), (together, the "Securities") to be issued under a dated indenture (the "Dated Indenture") and an undated indenture (the "Undated Indenture"), respectively, (together, the "Indentures") to be entered into between the Company and The Bank of New York as trustee.
In arriving at the opinions expressed below, we have reviewed the form of the Indentures. In addition, we have reviewed the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other instruments and other certificates of public officials, officers and representatives of the Company and such other persons, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.
Based on the foregoing, it is our opinion that, (a) when the Dated Indenture has been duly authorized, executed and delivered, and the Dated Securities have been duly authorized, executed and delivered, the Dated Securities will be valid, binding and enforceable obligations of the Company entitled to the benefits of the Dated Indenture, and (b) when the Undated Indenture has been duly authorized, executed and delivered, and the Undated Securities have been duly authorized, executed and delivered, the Undated Securities will be the valid, binding and enforceable obligations of the Company entitled to the benefits of the Undated Indenture.
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Company, (a) we have assumed that the Company and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Company regarding matters of the federal law of the United States of America or the law of the State of New York), (b) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors' right generally and to general principles of equity and (c) such opinions are subject to the effect of, judicial application of foreign laws or foreign governmental actions affecting creditors rights.
In rendering the opinion expressed above, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified (i) the accuracy as to factual matters of each document we have reviewed and (ii) that the Dated Indenture will conform and the Undated Indenture will conform to the forms thereof provided as exhibits to the Registration Statement and that the Securities will be duly authenticated in accordance with their terms.
With respect to the second sentence in Section 1.15 in each of the Indentures, we express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action where jurisdiction based on diversity of citizenship under 28 U.S.C ss.1332 does not exist. In addition, we express no opinion as to the enforceability of Article 12 of each Indenture and the subordination provisions of the Securities (which are expressed to be governed by the laws of England).
The foregoing opinion is limited to the federal laws of the United States of America and the laws of the State of New York.
We are furnishing this opinion letter to you, solely for your benefit in connection with the registration with the Securities and Exchange Commission under the Act. This opinion letter is not to be used, circulated, quoted or otherwise referred to for any other purpose, except that this opinion letter may be relied upon by the Trustee in its capacity as such.
We hereby consent to the use of this opinion as an exhibit to the Registration Statement, without admitting that we are "experts" under the Act, or the rules and regulations of the Securities and Exchange Commission issued thereunder, with respect to any part of the Registration Statement, including this exhibit.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By: /s/ Ashar Qureshi
-----------------------------
Ashar Qureshi, a Partner
|
[LETTERHEAD OF NORTON ROSE]
Your Reference
Direct Line +44 (0)20 7444 3091
email: adamsnch@nortonrose.com
Our Reference
NCHA/AA43549
1 October 2002
CONFORMED COPY
HSBC Holdings plc
8 Canada Square
London
E14 5HQ
Dear Sirs
We have acted as legal advisers in England to HSBC Holdings plc ("HSBC") in
connection with the registration under the US Securities Act of 1933, as amended
(the "Securities Act") of (i) subordinated debt securities; and (ii)
non-cumulative dollar-denominated preference shares of US$0.01 each (the "dollar
preference shares"), together having an aggregate initial offering price of up
to US$3,750,000,000, pursuant to the registration statement on Form F-3 (the
"Registration Statement") filed under the Securities Act with the Securities and
Exchange Commission (the "Commission") on 1 October 2002 and have been asked to
render the following opinion.
We have examined each of the following documents:
1 a copy of the Registration Statement;
2 a copy of the resolutions passed by the shareholders of HSBC at general meetings held on 26 May 2000 and 31 May 2002; and
3 a copy of the Memorandum and Articles of Association of HSBC;
and such other documents as we have considered necessary or appropriate to enable us to express the opinion set forth herein.
For the purposes of this opinion, we have assumed:
(a) the completeness and authenticity of all documents submitted to us as originals and the conformity to original documents of all copies submitted to us; and
(b) that the resolutions referred to above were duly passed and have not been amended or rescinded and are in full force and effect.
This opinion letter is confined to, and is given solely on the basis of, the laws of England as applied by the English Courts as at the date hereof. We do not purport to be qualified to comment upon, nor have we made any investigation into, nor do we express any opinion as to, the laws of any jurisdiction other than those of England in effect on the date hereof as applied by the English Courts.
Based upon and subject to the foregoing and subject to any matters, documents or events not disclosed to us by the parties concerned, we are of the opinion that:
(a) HSBC is a company duly incorporated and validly existing as a public limited company under the laws of England and Wales; and
(b) authority to allot dollar preference shares has been granted by the shareholders of HSBC up to the aggregate nominal value of the dollar preference shares in the capital of HSBC at the date hereof (being US$100,000) and, subject to the Directors of HSBC resolving to allot such shares, when the dollar preference shares of any series are duly allotted (subject to any conditions required by the Directors of HSBC to be satisfied prior to allotment) and issued and payment therefor is duly made in full as contemplated in the Registration Statement, the dollar preference shares of such series will be validly issued and fully paid under the laws of England; and
(c) under the laws of England, no personal liability, as against HSBC, attaches to the registered holders of fully paid dollar preference shares by reason only of their being registered holders thereof.
This opinion is strictly limited to the matters stated herein and is not to be read as extending by implication to any other matters. It may not be relied upon by you for any other purpose or furnished in whole or in part to any other person, firm, corporation, government agency or authority without our prior written consent. This opinion is addressed solely to you and may not be relied upon by any other person.
We hereby consent to the use of our name in the Prospectus forming part of the Registration Statement in the form and context in which it appears therein and to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent we do not hereby admit that we are within the category of persons whose consent is required within Section 7 of the Securities Act or the rules and regulations of the Commission.
Yours faithfully,
/s/ Norton Rose |
[KPMG Letterhead]
The Directors
HSBC Holdings plc
10 Lower Thames Street
London
EC3R 6AE
28 June 2002
Dear Sirs
Independent Auditors consent
We hereby consent to the incorporation by reference in this registration statement of HSBC Holdings Plc on form F-3 of our report contained within the Annual Report on 20-F/A of HSBC Holdings plc for the fiscal year ended 31 December 2001 and the references made to us under the heading `Experts' in the prospectus which is part of this Registration Statement.
Yours faithfully
/s/ KPMG Audit Plc ------------------- KPMG Audit Plc |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, HSBC Holdings plc certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in London, England, on June 28, 2002.
HSBC HOLDINGS PLC
By: /s/ Ralph G Barber Name: Ralph G Barber Title: Secretary |
Know all persons by these presents that each officer or director whose signature appears below constitutes and appoints each of the directors named below and the secretary named above, jointly and severally, his or her true and lawful attorneys-in-fact and agents with full and several power of substitution, for and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, and supplements to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intends and purposes as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on June 28, 2002.
By: /s/ Sir John Bond
Name: Sir John Bond
Title: Group Chairman and Director
By: /s/ The Baroness Dunn, DBE
Name: The Baroness Dunn, DBE
Title: Deputy Chairman and senior non-executive
Director
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By: /s/ Sir Brian Moffat, OBE
Name: Sir Brian Moffat, OBE
Title: Deputy Chairman and senior independent
non-executive Director
By: /s/ Sir Keith Whitson
Name: Sir Keith Whitson
Title: Group Chief Executive and Director
By: /s/ D J Flint
Name: D J Flint
Title: Group Finance Director and Director
By: /s/ The Lord Butler, GCB, CVO
Name: The Lord Butler, GCB, CVO
Title: Director
By:
Name: R K F Ch'ien, CBE
Title: Director
By:
Name: C F W de Croisset
Title: Director
By:
Name: W R P Dalton
Title: Director
By: /s/ D G Eldon
Name: D G Eldon
Title: Director
|
By: Name: W K L Fung, OBE Title: Director By: /s/ S K Green Name: S K Green Title: Director By: /s/ S Hintze Name: S Hintze Title: Director By: /s/ A W Jebson Name: A W Jebson Title: Director By: Name: Sir John Kemp-Welch Title: Director By: /s/ The Lord Marshall Name: The Lord Marshall Title: Director By: /s/ Sir Mark Moody-Stuart, KCMG Name: Sir Mark Moody-Stuart, KCMG Title: Director By: /s/ H Sohmen, OBE Name: H Sohmen, OBE Title: Director |
By:
Name: H Sohmen, OBE
Title: Director
By: /s/ Phil Toohey
Name:
Title: Authorized Representative in the United
States: (Attorney-in-fact)
|
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
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HSBC Holdings plc
(Exact name of obligor as specified in its charter)
England 98-0209906 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 8 Canada Square London E14 5HQ England (Address of principal executive offices) (Zip code) |
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
--------------------------------------------------------------------------------
Name Address
--------------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York, N.Y.
State of New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
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(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 28th day of June, 2002.
THE BANK OF NEW YORK
By: /S/ MARY LAGUMINA
--------------------------
Name: MARY LAGUMINA
Title: VICE PRESIDENT
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Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2002, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ....... $2,850,111
Interest-bearing balances ................................ 6,917,898
Securities:
Held-to-maturity securities .............................. 1,201,319
Available-for-sale securities ............................ 13,227,788
Federal funds sold in domestic offices ...................... 1,748,562
Securities purchased under agreements to
resell ................................................... 808,241
Loans and lease financing receivables:
Loans and leases held for sale ........................... 974,505
Loans and leases, net of unearned
income.................................................. 36,544,957
LESS: Allowance for loan and
lease losses............................................ 578,710
Loans and leases, net of unearned
income and allowance ................................... 35,966,247
Trading Assets .............................................. 6,292,280
Premises and fixed assets (including capitalized
leases) .................................................. 860,071
Other real estate owned ..................................... 660
Investments in unconsolidated subsidiaries and
associated companies ..................................... 272,214
Customers' liability to this bank on acceptances
outstanding .............................................. 467,259
Intangible assets
Goodwill ................................................. 1,804,922
Other intangible assets .................................. 70,679
Other assets ................................................ 4,639,158
------------
Total assets ................................................ $78,101,914
============
LIABILITIES
Deposits:
In domestic offices ...................................... $29,456,619
Noninterest-bearing....................................... 11,393,028
Interest-bearing.......................................... 18,063,591
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ................................. 26,667,608
Noninterest-bearing....................................... 297,347
Interest-bearing.......................................... 26,370,261
Federal funds purchased in domestic
offices ................................................... 1,422,522
Securities sold under agreements to repurchase .............. 466,965
Trading liabilities ......................................... 2,946,403
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) ................................ 1,844,526
Bank's liability on acceptances executed and
outstanding .............................................. 469,319
Subordinated notes and debentures ........................... 1,840,000
Other liabilities ........................................... 5,998,479
------------
Total liabilities ........................................... $71,112,441
============
Minority interest in consolidated
subsidiaries ............................................. 500,154
============
EQUITY CAPITAL
Perpetual preferred stock and related
surplus .................................................. 0
Common stock ................................................ 1,135,284
Surplus ..................................................... 1,055,509
Retained earnings ........................................... 4,244,963
Accumulated other comprehensive income ...................... (53,563)
Other equity capital components ............................. 0
----------------------------------------------------------------------------
Total equity capital ........................................ 6,489,319
------------
Total liabilities minority interest and equity capital ...... $78,101,914
============
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I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Thomas J. Mastro, Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
-
Thomas A. Renyi |
Gerald L. Hassell |
Alan R. Griffith | Directors
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