As filed with the Securities and Exchange Commission on June
16, 2009
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form F-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
NATIONAL GRID PLC
(Exact name of registrant as
specified in its charter)
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ENGLAND AND WALES
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98-0367158
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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Helen Mahy
National Grid plc
1-3 Strand, London
WC2N 5EH England
011-44-207-004-3000
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Colin Owyang
National Grid USA
40 Sylvan Road
Waltham, MA 02451-1120
781-907-1000
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(Address, including zip code,
and telephone
number, including area code, of registrants
principal executive offices)
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(Name, address, including zip
code, and
telephone number including area code, of
agent for service)
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With
Copies to:
Joseph
D. Ferraro
Dewey & LeBoeuf
No. 1 Minster Court
Mincing Lane, London
EC3R 7YL England
011-44-207-459-5000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box:
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following
box:
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.C. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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CALCULATION
OF REGISTRATION FEE
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Amount to be
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Registered/Proposed
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Amount of
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Title of Each Class of
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Maximum Aggregate
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Registration
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Securities to be Registered
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Price per Unit
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Fee
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Debt securities
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Indeterminate
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(1)
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(1)
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An indeterminate aggregate initial offering price or number of
debt securities is being registered as may from time to time be
offered at indeterminate prices. Separate consideration may or
may not be received for securities that are issuable on
exercise, conversion or exchange of other securities or that are
issued in units or represented by depositary shares. In
accordance with Rules 456(b) and 457(r), the Registrant is
deferring payment of all of the registration fee.
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PROSPECTUS
National Grid plc
Debt Securities
We may from time to time offer and sell unsecured debt
securities in one or more separate series. We will describe in
one or more prospectus supplements, which must accompany this
prospectus, the type and amount of a series of debt securities
we are offering and selling, as well as the specific terms of
these securities. Such prospectus supplements may also add,
update or change information contained in this prospectus. You
should read this prospectus and the prospectus supplements
carefully, together with the information described under the
heading Where You Can Find More Information before
you invest in these securities.
We may offer debt securities in amounts, at prices and on terms
to be determined at the time of offering. We may sell these
securities directly to you, through agents we select, or through
underwriters and dealers we select. If we use agents,
underwriters or dealers to sell these securities, we will name
them and describe their compensation in the applicable
prospectus supplement.
The mailing address of our principal executive office is 1-3
Strand, London, WC2N 5EH, England and our telephone number is
011-44-207-004-3000.
Investing in these securities involves risks. See Risk
Factors beginning on page 1 of this prospectus and
Risk Factors in our most recent Annual Report on
Form 20-F,
as well as any contained in the applicable prospectus
supplement.
Neither the U.S. Securities and Exchange Commission nor
any state securities commission has approved or disapproved
these securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
This prospectus may not be used to consummate sales of debt
securities unless accompanied by a prospectus supplement.
The date of this prospectus is June 16, 2009.
TABLE OF
CONTENTS
You should rely only on the information contained in this
prospectus, the accompanying prospectus supplement or any
document to which we have referred you. We have not authorized
anyone to provide you with different information. You should not
assume that the information in this prospectus or the
accompanying prospectus supplement is accurate as of any date
other than the date on the front of these documents. We are not
making an offer of these securities in any state or jurisdiction
where the offer is not permitted.
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ABOUT
THIS PROSPECTUS
This document is called a prospectus and is part of a
registration statement that we have filed with the
U.S. Securities and Exchange Commission (the
SEC), using a shelf registration
process. This prospectus provides you with a general description
of the debt securities we may offer. Each time we offer debt
securities, we will provide a supplement to this prospectus. The
accompanying prospectus supplement will describe the specific
terms of that offering, and may also include a discussion of any
special considerations applicable to those securities. The
accompanying prospectus supplement may also add, update or
change the information contained in this prospectus. If there is
any inconsistency between the information in this prospectus and
the accompanying prospectus supplement, you should rely on the
information in the accompanying prospectus supplement. Please
carefully read this prospectus and the accompanying prospectus
supplement. In addition to the information contained in the
documents, we refer you to under the headings Where You
Can Find More Information and Incorporation of
Certain Documents by Reference. The registration statement
containing this prospectus, including the exhibits to the
registration statement, provides additional information about us
and the debt securities offered under this prospectus. The
registration statement, including the exhibits, can be read on
the SEC website or at the SEC offices, each of which is listed
under the heading Where You Can Find More
Information.
All references in this prospectus and the accompanying
prospectus supplement to National Grid,
NG, our company, we,
us or our mean National Grid plc, unless
we state otherwise or as the context requires. In addition, the
term IFRS means international financial reporting
standards as adopted by the European Union and IFRS as issued by
the International Accounting Standards Board (IASB).
Our consolidated financial statements are published in pounds
sterling. In this prospectus and the accompanying prospectus
supplement, U.S. dollars or $
refers to U.S. currency and pounds sterling,
sterling, £ or pence
refers to U.K. currency.
RISK
FACTORS
Investing in the debt securities offered using this prospectus
involves risk. You should consider carefully the risks
incorporated by reference in this prospectus from our most
recent Annual Report on
Form 20-F
or in similar sections in subsequent filings incorporated by
reference in this prospectus, for additional information on
factors that may affect our future results, before you decide to
buy our debt securities. If any of these risks actually occur,
our business, financial condition and results of operations
could suffer, and the trading price and liquidity of our debt
securities could decline, in which case you may lose all or part
of your investment. Additional risk factors may be included in a
prospectus supplement relating to a particular series or
offering of securities.
FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated by reference into
this prospectus contain certain statements that are neither
reported financial results nor other historical information.
These statements are forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as
amended (the Securities Act) and Section 21E of
the Securities Exchange Act of 1934, as amended (the
Exchange Act). These statements include information
with respect to our financial condition, our results of
operations and businesses, strategy, plans, objectives and the
expected impact of this offering on the foregoing. Words such as
anticipates, expects,
intends, plans, believes,
seeks, estimates, may,
will, continue, project and
similar expressions, as well as statements in the future tense,
identify forward-looking statements.
These forward-looking statements are not guarantees of our
future performance and are subject to assumptions, risks and
uncertainties that could cause actual future results to differ
materially from those
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expressed in or implied by the forward-looking statements. Many
of these assumptions, risks and uncertainties relate to factors
that are beyond our ability to control or estimate precisely,
such as:
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delays in obtaining, or adverse conditions contained in,
regulatory approvals and contractual consents;
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unseasonable weather affecting the demand for electricity and
gas;
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competition and industry restructuring;
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changes in economic conditions;
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currency fluctuations;
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changes in interest and tax rates;
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changes in energy market prices;
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changes in historical weather patterns;
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changes in laws, regulations or regulatory policies;
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developments in legal or public policy doctrines;
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the impact of changes to accounting standards;
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technological developments;
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the ability to access capital markets and other sources of
credit in a timely manner on acceptable terms, especially
considering the recent deterioration of market conditions in the
global economy and financial markets;
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the ability to integrate the businesses relating to announced or
recently completed acquisitions with our existing business to
realize the expected synergies from such integration;
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the availability of new acquisition opportunities and the timing
and success of future acquisition opportunities;
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the timing and success or other impact of the sales of our
non-core businesses;
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the failure for any reason to achieve reductions in costs or to
achieve operational efficiencies;
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the failure to retain key management;
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the behavior of U.K. electricity market participants on system
balancing;
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the timing of amendments in prices to shippers in the U.K. gas
market;
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the performance of our pension schemes and the regulatory
treatment of pension costs; and
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any adverse consequences arising from outages on or otherwise
affecting energy networks, including gas pipelines, which we own
or operate.
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Other factors are discussed in Risk Factors above,
and under Operating and Financial Review and
Prospects and Risk factors included in our
most recent Annual Report on
Form 20-F
and may be discussed in the accompanying prospectus supplement.
We may also make or disclose written
and/or
oral
forward-looking statements in reports filed with or furnished to
the SEC, our annual reports and accounts to shareholders, proxy
statements, offering circulars, registration statements,
prospectuses, prospectus supplements, press releases and other
written materials and in oral statements made by our directors
or employees to third parties, including financial analysts. We
undertake no obligation to update any of our forward-looking
statements.
The effects of these factors are difficult to predict. New
factors emerge from time to time and we cannot assess the
potential impact of any such factor on the business or the
extent to which any factor, or combination of factors, may cause
results to differ materially from those contained in any
forward-looking statement.
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WHERE YOU
CAN FIND MORE INFORMATION
We are subject to the filing requirements of the Exchange Act.
In accordance with the Exchange Act, we file such reports and
other information with the SEC. Our SEC filings are available
over the internet at the SECs website at
http://www.sec.gov.
The address of the SECs internet site is provided solely
for the information of prospective investors and is not intended
to be an active link incorporating any materials via such
website, except as described below. You may also read and copy
any document we file at the SECs public reference room at
100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at (800) SEC-0330 for further
information on the public reference room.
You may request a copy of the filings referred to above at no
cost by writing or telephoning us at our registered office at
1-3 Strand, London WC2N 5EH, England,
011-44-207-004-3000,
attn: Investor Relations.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
This prospectus incorporates by reference certain of
the reports and other information that we have filed with the
SEC under the Exchange Act. This means that we are disclosing
important information to you by referring you to those
documents. The information incorporated by reference is
considered to be a part of this prospectus. Information filed
with the SEC after the date of this prospectus will update and
supersede this information. We incorporate by reference in this
prospectus the documents listed below:
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Our Annual Report on
Form 20-F
for the year ended March 31, 2009;
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Any future reports on
Form 6-K
that we may file that indicate that they are incorporated by
reference into this Registration Statement; and
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Any future Annual Reports on
Form 20-F
that we may file with the SEC under the Exchange Act prior to
the termination of any offering contemplated by this prospectus.
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Information in this prospectus may be modified by information
included in subsequent Exchange Act filings that we incorporate
by reference, the result of which is that only the information
as modified will be part of this prospectus. All other
information in the prospectus will be unaffected by the
replacement of this superseded information.
EXCHANGE
RATE INFORMATION
The following table sets forth the history of the exchange rates
of one pound sterling to U.S. dollars for the periods
indicated. Please see our Annual Report on
Form 20-F
for the fiscal year ended March 31, 2009 for additional
exchange rate information which is incorporated by reference.
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Pound Sterling/U.S. Dollar Exchange Rate History (1)
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March
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February
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January
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December
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November
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May 2009
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April 2009
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2009
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2009
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2009
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2008
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2008
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Last (2)
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1.6154
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1.4774
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1.4206
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1.4347
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1.4462
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1.4575
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1.5380
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Average (3)
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1.5442
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1.4715
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1.4166
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1.4413
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1.4472
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1.4838
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1.5310
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High
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1.6154
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1.5012
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1.4719
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1.4947
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1.5204
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1.5469
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1.6033
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Low
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1.4880
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1.4390
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1.3771
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1.4218
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1.3703
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1.4411
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1.4670
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(1)
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Data obtained from Bloomberg
Professional
®
Services, Bloomberg L.P.
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(2)
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Last is the closing exchange rate on the last
business day of each of the periods indicated.
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(3)
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Average is the average daily exchange rate during
the periods indicated.
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THE
COMPANY
Overview
National Grid plc is the name of our holding company and we are
an international electricity and gas company based in the United
Kingdom and northeastern United States.
Our website address is
http://www.nationalgrid.com.
Information contained on our website does not constitute part of
this prospectus.
The description of our business below contains information and
data as of the date of this prospectus and may be amended or
supplemented by the accompanying prospectus supplement and
documents incorporated by reference herein or therein.
Our
Business
Our principal operations are in the ownership and operation of
regulated electricity and gas infrastructure networks in the
United Kingdom and the United States, serving around
19 million consumers directly and many more indirectly. We
also have interests in related matters, including electricity
interconnectors, metering services, liquefied natural gas (LNG)
facilities and property in the United Kingdom, LNG storage and
transportation and non-regulated gas transmission pipelines in
the United States.
We have over 27,500 employees located in the United Kingdom and
the United States.
The performance of our principal businesses is reported by
segment, reflecting the management responsibilities and economic
characteristics of each activity. Our principal businesses and
segments, together with other activities and discontinued
operations, are:
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U.K electricity and gas transmission;
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U.S. electricity transmission;
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U.K. gas distribution;
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U.S. gas distribution;
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U.S. electricity distribution and generation; and
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Non-regulated businesses and other activities.
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Our principal subsidiaries are: National Grid Electricity
Transmission plc, which operates our U.K. electricity
transmission business; National Grid Gas plc, which operates our
U.K. gas transmission and U.K. gas distribution businesses; and
National Grid USA, the holding company for our
U.S. electricity and gas distribution, electricity
transmission and electricity generation businesses.
USE OF
PROCEEDS
Except as otherwise described in the accompanying prospectus
supplement, we expect to use the net proceeds from the sale of
the debt securities we offer under this prospectus for general
corporate purposes.
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RATIOS OF
EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed
charges for the periods indicated, using financial information
compiled in accordance with IFRS. IFRS is our primary GAAP.
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Year Ended March 31,
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2009
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2008
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2007
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2006
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2005
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Earnings to fixed charges
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1.89
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2.73
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2.49
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2.91
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2.62
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The ratio of earnings to fixed charges is computed by dividing
earnings by fixed charges. Earnings represents pre-tax income
from continuing operations before minority interests, income or
loss from joint ventures and associates, fixed charges,
amortization of capitalized interest, plus dividends received
from joint ventures and associates, less capitalized interest.
Fixed charges includes interest expense (including amortized
premiums, discounts and capitalized expenses related to
indebtedness and, for IFRS, excluding amounts recognized in
interest in respect of pension liabilities) plus interest
portion of lease rentals and preferred stock dividends.
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CAPITALIZATION
AND INDEBTEDNESS
The following table sets forth our capitalization on an actual
basis, using financial information compiled in accordance with
IFRS, as of March 31, 2009. You should read this table in
conjunction with our consolidated financial statements and notes
and together with any updated information in the accompanying
prospectus supplement and any documents incorporated by
reference herein or therein.
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As of March 31,
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2009
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(£ millions)
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Bank loans and overdrafts
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3,140
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Other bonds
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20,002
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Finance leases
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205
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Other loans
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193
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Total long-term debt
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23,540
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Total short-term debt
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3,253
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Total Debt (1)
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26,793
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Capital and reserves
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Called up share capital
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294
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Share premium account
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1,371
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Retained earnings
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7,135
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Translation reserve
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384
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Cash flow hedges reserve
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(72
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Available-for-sale
investment reserve
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4
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Other reserves
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(5,146
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Total Shareholders Equity
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3,970
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Total Capitalization
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30,763
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(1)
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Between March 31, 2009, and May 31, 2009, new
long-term debt was issued totaling £14 million. This
increase in total borrowings was offset by maturity or
redemption of bonds totaling £127 million.
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(2)
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Net of issuance costs and premiums or discounts. As of
March 31, 2009, we had net debt related derivative assets
of £1,186 million. As of May 31, 2009, we had net
debt related derivative assets of £1,513 million. The
change since March 31, 2009 is in part due to movements in
exchange rates.
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Account has been taken of liabilities and guarantees between
undertakings within the same group.
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Charges over our property, plant and other assets were provided
as collateral over borrowings as at March 31, 2009 totaling
£493 million.
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The value of our contingencies at March 31, 2009 amounted
to £1,666 million including guarantees amounting to
£1,022 million and commitments largely relating to gas
purchasing and property remediation of £615 million.
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Details of the guarantees entered into by the company or its
subsidiary undertakings at March 31, 2009 are shown below:
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i) Guarantee in respect of Ravenswood Unit 40 financing
amounting to approximately £268 million. This expires
in 2040;
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ii) Letter of support of obligations under a
shareholders agreement relating to the interconnector
project between Britain and the Netherlands amounting to
approximately £264 million. This expires in 2010;
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iii) Guarantees of certain obligations in respect of the UK
Grain LNG Import Terminal amounting to approximately
£188 million. These run for varying lengths of time,
expiring between now and 2028;
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iv) Guarantee amounting to approximately
£122 million of half of the obligations of the
interconnector project between Britain and the Netherlands. This
expires in 2010;
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v) Guarantees of the liabilities of a metering subsidiary
under meter operating contracts amounting to
£53 million;
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vi) An uncapped guarantee, for which the maximum liability
is estimated at £40 million, to The Crown Estates in
support of the transfer of the interconnector between France and
England to National Grid Interconnectors Limited as part of the
Licence to Assign Lease;
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vii) Letters of credit in support of gas balancing
obligations amounting to £21 million, lasting for less
than one year;
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viii) Guarantees of £15 million relating to
certain property obligations. The bulk of these expire by
December 2025;
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ix) Collateral of £15 million to secure syndicate
insurance obligations which are evergreen;
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x) Guarantees in respect of a former associate amounting to
£14 million, the bulk of which relates to its
obligations to supply telecommunications services. This is
open-ended; and
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xi) Other guarantees amounting to £22 million
arising in the normal course of business and entered into on
normal commercial terms. These guarantees run for varying
lengths of time.
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NG has guaranteed the repayment of principal sum, any associated
premium and interest on specific loans due from certain of our
undertakings to third parties. At March 31, 2009, the
sterling equivalent amounted to £2,302 million. The
guarantees are for varying terms from two years to open-ended.
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At March 31, 2009, NG has also guaranteed the lease
obligations of a former associate to our undertakings, amounting
to £4 million.
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The information contained in the Capitalization Table is
extracted without material adjustment from NGs audited
consolidated financial statements as at March 31, 2009.
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There has been no material change in the contingent liabilities
or guarantees of NG since March 31, 2009.
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As at March 31, 2009, we had cash and short-term
investments of £2,934 million. As of May 31, 2009
we had cash and short-term investments of
£2,266 million.
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There has been no material change in the information contained
in the capitalisation table since March 31, 2009 except for
changes due to movements in exchange rates and other movements
arising in the normal course of business.
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(3)
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On May 14, 2009, our Directors announced a proposed final
dividend of 23 pence per share that will absorb
£560 million of shareholders equity (assuming
all amounts are settled in cash). If approved by our
shareholders at the Annual General Meeting on July 27,
2009, the year-end dividend will be paid on August 19, 2009.
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7
DESCRIPTION
OF THE DEBT SECURITIES
General
The debt securities will be issued under an indenture between us
and The Bank of New York (now The Bank of New York Mellon), as
trustee dated July 3, 2006. We have summarized material
provisions of the indenture below. The summary is not complete
and is subject to, and is qualified in its entirety by reference
to, all provisions of the indenture, including the definition of
certain terms in the indenture and those terms to be made a part
of the indenture by the Trust Indenture Act of 1939, as
amended. The form of indenture is filed as an exhibit to the
registration statement of which this prospectus is a part and
you should read the indenture for provisions that may be
important to you. In this summary, we have included reference to
section numbers in the indenture so that you can easily locate
these provisions. Capitalized terms used in this summary have
the meanings specified in the indenture. In this summary,
we, our or us means NG and
its successors under the indenture only and does not include any
of its subsidiaries.
The indenture does not limit the aggregate principal amount of
the debt securities which we may issue under it and provides
that we may issue debt securities under it from time to time in
one or more series. The indenture does not limit the amount of
other indebtedness or the debt securities which we or our
subsidiaries may issue.
We describe in this section the general terms that will apply to
any series of debt securities that may be offered under this
prospectus. At the time that we offer debt securities, we will
describe in the related prospectus supplement the specific terms
of the debt securities of a series and the extent to which the
general terms described in this section apply or do not apply to
those securities.
The debt securities will be our direct, unsecured obligations
and will rank equally with all of our other existing and future
unsecured and unsubordinated indebtedness. In each case, these
obligations shall be without any preference among themselves.
This will be subject, in the event of insolvency, to laws of
general applicability relating to or affecting creditors
rights. Other unsecured and unsubordinated indebtedness may
contain covenants, events of default and other provisions which
are different from or which are not contained in the debt
securities.
We will issue debt securities in series. Each series of debt
securities may have different terms, and, in some cases, debt
securities of the same series may have different terms. We will
describe the following terms of the particular series of debt
securities being offered in the applicable prospectus supplement:
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the designation, aggregate principal amount and authorized or
any minimum denominations of the series of debt securities,
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the percentage or percentages of principal amount (price to
public) at which the debt securities of the series will be
issued,
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certain dates or periods, including:
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(a) the original issue date or dates or periods during
which the debt securities may be issued,
(b) the date or dates (or manner of determining the same),
if any, on which, or the range of dates, if any, within which,
the principal of (and premium, if any, on) the debt securities
of the series is payable, and
(c) the record dates, if any, for the determination of
holders to whom such principal (and premium, if any, thereon) is
payable,
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information with regard to interest, including:
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(a) the rate or rates per annum (and the manner or basis of
calculation thereof) at which the debt securities of the series
shall bear interest (if any),
(b) the date or dates from which such interest shall accrue,
(c) the interest payment dates on which such interest shall
be payable (or manner of determining the same), and
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(d) the regular record date for the interest payable on any
interest payment date,
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the place or places where:
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(a) the principal of (and premium, if any, on) and
interest, if any, on debt securities of the series shall be
payable,
(b) debt securities of the series may be presented for
transfer or exchange,
(c) notices and demands to or upon us may be
served, and
(d) commercial banks and foreign exchange markets must be
open to settle payments to constitute a good business day,
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the terms and conditions, if any, upon which debt securities of
the series may be redeemed, in whole or in part, at our option
or otherwise,
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our obligation, if any, to redeem, repurchase or repay debt
securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a holder thereof and
the terms and conditions in respect thereof,
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with respect to debt securities of a series, if other than the
principal amount thereof, the portion of the principal amount of
such debt securities of the series which shall be payable upon a
redemption prior to maturity or a declaration of acceleration of
the maturity following an event of default, if any, thereof,
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any stock exchange on which we will list a series of debt
securities,
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any additional events of default (as defined below),
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any additional covenants or agreements with respect to the debt
securities of the series,
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if a person other than The Bank of New York Mellon (formerly The
Bank of New York) is to act as trustee for the debt securities
of any series, the name and location of the corporate trust
office of such trustee and, with respect to any debt securities
of a series, if a person other than the applicable trustee, in
its capacity as principal paying agent for the debt securities,
is to act as such agent, the name and location of the principal
office of such principal paying agent,
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if other than U.S. dollars, the currency or currency unit
in which any payments on the debt securities of the series shall
be made or in which the debt securities of the series shall be
denominated,
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if applicable, the fact that the terms of the applicable
indenture described below under Discharge, Defeasance and
Covenant Defeasance will not apply with respect to the
debt securities of the series,
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the date as of which any Global Security representing
outstanding debt securities of the series shall be dated if
other than the date of original issuance of the first security
of the series to be issued,
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if applicable, the fact that the terms of the applicable
indenture described under Redemption of Debt Securities
for Tax Reasons and Payment of Additional
Amounts below will not apply with respect to the debt
securities of the series,
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whether the debt securities of the series shall be issued in
whole or in part in the form of a global security or notes and,
in such case, the depositary for such global security or notes,
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whether any legends shall be stamped or imprinted on all or a
portion of the debt securities of a series, and the terms and
conditions upon which any such legends may be removed,
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information with respect to book-entry procedures, if any,
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any other terms of that series, and
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any material U.K. or U.S. federal tax consequences
applicable to the particular series which are not disclosed in
this Prospectus.
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9
The indenture does not contain any provisions that would limit
our ability to incur indebtedness or that would afford holders
of the debt securities protection in the event of a sudden and
significant decline in our credit quality or a takeover,
recapitalization or highly leveraged or similar transaction
involving us. Accordingly, we could in the future enter into
transactions that could increase the amount of indebtedness
outstanding at that time or otherwise affect our capital
structure or credit rating.
Denominations,
Registration and Transfer
Unless the applicable prospectus supplement provides otherwise,
we will issue debt securities registered in the name of holders
as set out in the books of the security registrar (each, a
registered security, or a security in
registered form).
Unless the applicable prospectus supplement provides otherwise,
registered securities will be represented by interests in one or
more global securities (each, a Global Security, or
a security in global form) deposited with a nominee
for, and accepted for settlement and clearance by, one or more
of The Depository Trust Company (DTC) and a
common depositary for Euroclear Bank S.A./N.V.
(Euroclear) and Clearstream Banking,
Société anonyme (Clearstream), as
described under Global Securities below. Registered
securities will be issued in such denominations as are specified
in the applicable prospectus supplement and a Global Security
will be issued in a denomination equal to the aggregate
principal amount of outstanding debt securities of the series
represented by such Global Security, unless the applicable
prospectus supplement provides otherwise.
In the circumstances described below under
Securities in Definitive Form, we may
physically issue and deliver certificated securities in
registered form, which are referred to as securities in
definitive form. Registered securities of any series
issued in definitive form will be exchangeable for other
registered securities of the same series, of a like aggregate
principal amount and tenor and of different authorized
denominations. A registered security issued in definitive form
may be presented for registration of transfer (with the form of
transfer duly executed), at the office of the security registrar
or at the office of any transfer agent we designate for such
purpose with respect to any series of debt securities and
referred to in an applicable prospectus supplement, without
service charge but subject to payment of any taxes and other
governmental charges as described in the indenture. Such
transfer or exchange will be effected after the security
registrar or transfer agent, as the case may be, is satisfied
with the documents of title and identity of the person making
the request. We have initially appointed the trustee as the
security registrar under the indenture. If a prospectus
supplement refers to any transfer agents (in addition to the
security registrar) that we have initially designated with
respect to any series of debt securities, we may at any time
rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent
acts, except that we will be required to maintain a transfer
agent in each place of payment for such series. We may at any
time designate additional transfer agents with respect to any
series of debt securities.
If the debt securities of a series are redeemed in part, we
shall not be required to:
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issue, register the transfer of or exchange debt securities of
any such series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice
of redemption of debt securities of that series selected to be
redeemed and ending at the close of business on the day of
mailing of the relevant notice of redemption, or
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register the transfer of or exchange any registered security, or
portion thereof, called for redemption, except the unredeemed
portion of any registered security being redeemed in part.
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Global
Securities
The debt securities of a series may be represented in whole or
in part by one or more Global Securities that will be registered
in the name of and deposited with or on behalf of, DTC or a
common depositary for Euroclear and Clearstream (a
Depositary) or a nominee thereof. Global Securities
will be issued in registered form unless the applicable
prospectus supplement provides otherwise. Unless and until it is
exchanged for registered securities in definitive form, any such
Global Security may not be transferred except as a whole by
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the relevant Depositary to its nominee, or vice versa, or by a
nominee to another nominee of such Depositary or, in either
case, to a successor of such Depositary or a nominee of such
successor.
The specific terms of the depositary arrangement with respect to
a series of debt securities will be described in the related
prospectus supplement. We anticipate that the following
provisions will apply to all depositary arrangements. See also
Clearance and Settlement below.
Upon the issuance of a Global Security, the Depositary for such
Global Security or its nominee will credit the accounts of
persons entitled thereto with the respective beneficial
interests in the principal amounts of the debt securities
represented by such Global Security. Such accounts shall be
designated by the underwriters, dealers or agents with respect
to such debt securities, or by us if we offer and sell directly
such debt securities. Ownership of beneficial interests in a
Global Security will be limited to persons that have accounts
with the Depositary for such Global Security or its nominee
(participants) or persons that may hold interests
through participants. Ownership of beneficial interests in the
Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by
the Depositary or its nominee (with respect to interests of
participants) for such Global Security and on the records of
participants (with respect to interests of persons who hold
interests through participants). The laws of some jurisdictions
require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and
such laws may impair your ability to transfer beneficial
interests in a Global Security.
So long as the relevant Depositary, or its nominee, is the
registered owner of such Global Security, it will be considered
the sole owner or holder of the debt securities represented by
such Global Security for all purposes under the indenture
governing the debt securities. Except as provided below, owners
of beneficial interests in a Global Security will not be
entitled to have debt securities of the series represented by
such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of securities of
such series in definitive form and will not be considered the
owners or holders thereof under the indenture governing such
debt securities. Such owners of beneficial interests will not
have the direct right to act upon any solicitation for actions
from holders of the debt securities and will be permitted to act
only to the extent appropriate proxies to do so from DTC,
Euroclear or Clearstream, as applicable, have been received.
Similarly, upon the occurrence of an event of default, unless
and until debt securities in definitive form are issued, owners
of beneficial interests in Global Securities will be restricted
to acting only to the extent appropriate proxies have been
received from DTC, Euroclear or Clearstream, as applicable.
Any payments of principal, premium, if any, or interest, if any,
on debt securities registered in the name of a Depositary or its
nominee will be made to it as the registered owner of the Global
Security representing such debt securities. Neither we, nor any
of the applicable trustees, paying agents or security registrars
for such debt securities will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global
Security for such debt securities or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
We expect that the Depositary for a Global Security or its
nominee, upon receipt of any payment of principal, premium (if
any) or interest (if any), will credit participants
accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the
debt securities of such series represented by such Global
Security as shown on the records of such Depositary or its
nominee. We also expect that payments by participants to owners
of beneficial interests in such Global Security held through
such participants will be governed by standing instructions and
customary practices, as is now the case with securities payable
to bearer or registered in street name (holders of
debt securities in accounts at banks or brokers), and will be
the responsibility of such participants.
Securities
in Definitive Form
If a Depositary for a Global Security in respect of a series of
debt securities is at any time unwilling or unable to continue
as depositary, and we do not appoint a successor depositary
within 120 days, or in the event of our winding up we fail
to make any payment on any debt securities when due, and the
trustee has received notice from the registered owner of such
Global Security requesting the exchange of a specified amount of
such debt securities for debt securities of such series in
definitive form, we will issue registered
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securities in respect of the debt securities of such series in
definitive form in exchange for the Global Security representing
such series of debt securities.
We may at any time and in our sole discretion determine that the
registered securities, in respect of the debt securities of any
series represented by one or more Global Securities, shall no
longer be represented by such Global Security or Securities. In
such event, we will issue registered securities in respect of
the debt securities of such series in definitive form. Further,
if we so specify with respect to the debt securities of a
series, you may, on terms acceptable to us and the Depositary
for such Global Security, receive registered securities of such
series in definitive form.
In any such instance, you will be entitled to physical delivery
in definitive form of securities of the series of debt
securities represented by such Global Security, equal in
principal amount to your beneficial interest, registered in your
name.
Debt securities of any series so issued in definitive form will
only be issued as registered securities in authorized minimum
denominations and bearing any applicable restrictive legend.
There should be no tax consequences associated with an exchange
of registered securities in global form for registered
securities in definitive form. If we issue debt securities in
definitive form in exchange for a particular Global Security,
the relevant Depositary, as holder of that Global Security, will
surrender it against receipt of the debt securities in
definitive form, cancel the book-entry debt securities of that
series, and distribute through DTC, Euroclear or Clearstream, as
the case may be, the debt securities in definitive form of that
series to the persons and in the amounts specified by DTC,
Euroclear or Clearstream, as the case may be.
To the extent permitted by law, we, the trustee, the paying
agents and the security registrars shall be entitled to treat
the person in whose name any debt security in definitive form is
registered as the absolute owner. Payments in respect of a debt
security in definitive form will be made to the person in whose
name the definitive debt security is registered as it appears in
the register for that series. They will be made either by check
mailed or delivered to the address of the person entitled
thereto as such address shall appear in the security register or
by wire transfer to an account maintained by the person entitled
thereto as specified in the security register. Debt securities
issued in definitive form should be presented to the applicable
paying agent for redemption.
Holders of debt securities in definitive form will have the
direct right to act upon any solicitation for actions from
holders of the debt securities, including upon the occurrence of
an event of default, and will not be required to rely upon
receipt of proxies from DTC, Euroclear or Clearstream.
Payments
on Debt Securities
The applicable prospectus supplement will specify the date on
which we will pay interest, if any, and the date for payments of
principal (and premium, if any, thereon) on any particular
series of debt securities. The prospectus supplement will also
specify the interest rate or rates, if any, or how such rate or
rates will be calculated.
Redemption
at the Option of NG
The applicable prospectus supplement will specify whether we may
redeem the debt securities of any series, in whole or in part,
at our option or in any other circumstances. The prospectus
supplement will also specify the notice that we will be required
to provide and the prices (and premium, if any, thereon) at
which and the dates on which the debt securities may be
redeemed. Any notice of redemption of debt securities will state:
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the date fixed for redemption;
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the record date;
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the amount of debt securities to be redeemed if we are only
redeeming part of a series;
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the series and relevant identification codes of the debt
securities to be redeemed;
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the redemption price;
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that on the date fixed for redemption the redemption price will
become due and payable on each debt security to be redeemed and,
if applicable, that any interest will cease to accrue on or
after the redemption date; and
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the place or places at which each holder may obtain payment of
the redemption price.
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Redemption
at the Option of Debt Security Holders
The applicable prospectus supplement will specify whether
holders of the debt securities of any series may have the option
to require us to redeem such debt securities in the event of a
restructuring of National Grid. This option is referred to as a
put option. In the event that the applicable
prospectus supplement states that debt security holders of such
series have a put option, then the provisions described below
relating to the notices that NG
and/or
such
debt security holders will be required to provide and the prices
(and premium, if any, thereon), at which and the dates on which
the affected debt securities may be redeemed will be applicable.
Public
Announcement upon Occurrence of Restructuring
Event
If the applicable prospectus supplement specifies that debt
security holders of such series have a put option, then at any
time while any of such debt securities remains outstanding,
there occurs a restructuring event (as described further below),
we shall make a public announcement of such event. The public
announcement will consist of an announcement by us or the
trustee, of the occurrence of the restructuring event published
in a leading national newspaper having general circulation in
the United States (which is expected to be the Wall Street
Journal).
Determining
whether a Restructuring Event Has Occurred
A restructuring event shall be deemed to have
occurred when at any time while any of such series of debt
securities remain outstanding, the sum of disposal percentages
for NG within any consecutive period of 36 months
commencing on or after the initial issue date of any such series
of debt securities is greater than 50 percent.
The disposal percentages for NG are calculated, in
relation to a sale, transfer, lease or other disposal or
dispossession of any disposed assets of NG, the ratio of
(a) the aggregate operating profit of disposed assets of NG
to (b) the consolidated operating profit of NG, expressed
as a percentage.
Disposed assets of NG for the purposes of the
calculation of disposal percentages for NG means, where NG
and/or
any
of its subsidiaries sells, transfers, leases or otherwise
disposes of or is dispossessed by any means (but excluding
sales, transfers, leases, disposals or dispossessions which,
when taken together with any related lease back or similar
arrangements entered into in the ordinary course of business,
have the result that the operating profit of NG directly
attributable to any such undertaking, property or assets
continues to accrue to NG or, as the case may be, such
subsidiary), otherwise than to a wholly-owned subsidiary of NG
or to NG, of the whole or any part (whether by a single
transaction or by a number of transactions whether related or
not) of its undertaking or (except in the ordinary course of
business of NG or any such subsidiary) property or assets, the
undertaking, property or assets sold, transferred, leased or
otherwise disposed of or of which it is so dispossessed.
Operating profit of disposed assets of NG, in
relation to any disposed assets of NG, means the operating
profits on ordinary activities before tax and interest and
before taking account of depreciation and amortisation of
goodwill and regulatory assets (for the avoidance of doubt,
exceptional items, as reflected in the relevant accounts of NG,
shall not be included) of NG and its subsidiaries directly
attributable to such disposed assets as determined in accordance
with IFRS by reference to the relevant accounts and, if relevant
accounts of NG do not yet exist, determined in a manner
consistent with the assumptions upon which the directors
report of NG is to be based. Where the directors of NG have
employed assumptions in determining the operating profit of NG,
those assumptions should be clearly stated in the
directors report of NG;
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Relevant accounts of NG means the most recent annual
audited consolidated financial accounts of NG and its
subsidiaries preceding the relevant sale, transfer, lease or
other disposal or dispossession of any disposed asset of NG.
Directors report of NG refers to a report
prepared and signed by two directors of NG addressed to the
trustee setting out the operating profit of NG, the consolidated
operating profit of NG and the disposal percentage for NG and
stating any assumptions which the directors of NG have employed
in determining the operating profit of NG.
Consolidated operating profit of NG means the
consolidated operating profit on ordinary activities before tax
and interest and before taking account of depreciation and
amortisation of goodwill and regulatory assets (for the
avoidance of doubt, exceptional items, as reflected in the
relevant accounts of NG shall not be included) of NG and its
subsidiaries (including any share of operating profit of
associates and joint ventures) determined in accordance with
IFRS by reference to the relevant accounts of NG.
For the purpose of determining whether a restructuring event has
occurred, subsidiary means a subsidiary within the
meaning of Section 1159 of the Companies Act 2006.
Events
Giving Rise to a Put Option
If debt security holders have a put option, then such debt
security holders shall be able to exercise a put option only in
the circumstances described below.
If at any time while any given series of debt securities with a
put option remains outstanding, there occurs a restructuring
event, and if, within the applicable NG restructuring period,
either:
(a) (if at the time that the restructuring event occurs
there are rated debt securities (as defined below)) a rating
downgrade in respect of the restructuring event occurs; or
(b) (if at the time that the restructuring event occurs
there are no rated debt securities) a negative rating event in
respect of the restructuring event occurs,
then the holders of each such affected series of debt securities
will have the option upon the giving of a notice to require us
to redeem or, at our option, purchase (or procure the purchase
of) such debt security on any business day falling within the
period of 45 days after a notice of the exercise of the put
option is given to us (at its principal amount together with
accrued interest to the date of redemption). The restructuring
event and rating downgrade or the restructuring event and
negative rating event, as the case may be, occurring within the
NG restructuring period, together are referred to as a put
event.
For the purpose of determining whether a put event has occurred,
NG restructuring period shall refer to the period
ending 90 days after a public announcement of a
restructuring event (or such longer period in which the rated
debt securities or rateable debt, as the case may be, is or are
under consideration (announced publicly within the first
mentioned period) for rating review or, as the case may be,
rating by a rating agency).
Rating agency refers to Standard &
Poors Ratings Services, a division of The McGraw-Hill
Companies, Inc. and its successors or Moodys Investors
Service, Inc. and its successors or any rating agency
substituted for either of them (or any permitted substitute of
them) by NG from time to time with the prior written approval of
the trustee.
Rated debt securities means for each series, the
debt securities of such series, if and for so long as they shall
have an effective rating from a rating agency and otherwise any
rateable debt which is rated by a rating agency; provided that
if there shall be no such rateable debt outstanding prior to the
maturity of such series of debt securities, the holders of not
less than one-quarter in principal amount of such outstanding
debt securities may require us to obtain and thereafter update
on an annual basis a rating of such debt securities from a
rating agency. In addition, we may at any time obtain and
thereafter update on an annual basis a rating of such debt
securities from a rating agency, provided that, except as
provided above, we shall not have any obligation to obtain such
a rating of such debt securities;
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A negative rating event shall be deemed to have
occurred if either (a) we do not, either prior to or not
later than 21 days after the relevant restructuring event,
seek, and thereupon use all reasonable efforts to obtain, a
rating of the affected series of debt securities or any other
rateable debt from a rating agency or (b) if we do so seek
and use such efforts, we are unable, as a result of such
restructuring event, to obtain such a rating of at least
investment grade (BBB- or Baa3 or their respective equivalents
for the time being), provided that a negative rating event shall
not be deemed to have occurred in respect of a particular
restructuring event if the rating agency declining to assign a
rating of at least investment grade (as described above) does
not announce or publicly confirm that its declining to assign a
rating of at least investment grade was the result, in whole or
in part, of any event or circumstance comprised in or arising as
a result of, or in respect of, the applicable restructuring
event (whether or not the restructuring event shall have
occurred at the time such investment grade rating is declined);
Rateable debt shall be understood to refer to
unsecured and unsubordinated debt of NG having an initial
maturity of five years or more.
Rating downgrade shall be deemed to have occurred in
respect of the restructuring event if the then current rating
whether provided by a rating agency at our invitation or by its
own volition assigned to the rated debt securities by any rating
agency is withdrawn or reduced from an investment grade rating
(BBB- or Baa3 or their respective equivalents for the time being
or better) to a non-investment grade rating (BB+ or Ba1, or
their respective equivalents for the time being, or worse) or,
if a rating agency shall already have rated the rated debt
securities below investment grade (as described above), the
rating is lowered one full rating category; provided that a
rating downgrade otherwise arising by virtue of a particular
reduction in rating shall not be deemed to have occurred in
respect of a particular restructuring event if the rating agency
making the reduction in rating to which this definition would
otherwise apply does not announce or publicly confirm that the
reduction was the result, in whole or part, of any event or
circumstance comprised in or arising as a result of, or in
respect of, the applicable restructuring event (whether or not
the applicable restructuring event shall have occurred at the
time of the rating downgrade).
Our
Obligations upon the Occurrence of a Put Event
Promptly upon our becoming aware that a put event has occurred,
we shall, or at any time upon the trustee becoming similarly so
aware the trustee may, and if so requested in writing by the
holders of at least one-quarter in principal amount of the
affected series of debt securities then outstanding or if so
directed by a resolution of such debt security holders, the
trustee shall give notice to such debt security holders
specifying the nature of the put event and the procedures for
exercising the put option. We refer to this notice as a
put event notice.
We shall, forthwith upon becoming aware of the occurrence of the
restructuring event (a) provide the trustee with the
relevant directors report of NG and (b) provide, or
procure that the reporting accountants provide, the trustee with
the accountants report. Reporting accountants
refers to the auditors of NG (but not acting in their capacity
as auditors) or such other firm of accountants as may be
nominated by NG and approved in writing by the trustee for the
purpose or, failing which, as may be selected by the trustee for
the purpose. The directors report and the
accountants report shall, in the absence of manifest
error, be conclusive and binding on all concerned, including the
trustee and the holders of the affected series of debt
securities. The trustee shall be entitled to act, or not act,
and rely on without being expected to verify the accuracy of the
same (and shall have no liability to debt security holders for
doing so) any directors report
and/or
any
accountants report (whether or not addressed to it).
Accountants report means a report of the
reporting accountants stating whether the amounts included in
the calculation of the operating profit and the amount for
consolidated operating profit as included in the directors
report have been accurately extracted from the accounting
records of NG and its Subsidiaries and whether the disposal
percentage included in the directors report has been
correctly calculated which will be prepared pursuant to an
engagement letter to be entered into by and among the reporting
accountants, us and the trustee.
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We shall use reasonable efforts to procure that there shall at
the relevant time be reporting accountants who have
(a) entered into an engagement letter with us which shall
(i) not limit the liability of the reporting accountants by
reference to a monetary cap and (ii) be available for
inspection by holders of debt securities at the principal office
of the trustee or (b) agreed to provide accountants
reports on such other terms as we shall approve. If we, having
used reasonable efforts, are unable to procure that there shall
at the relevant time be reporting accountants who have entered
into an engagement letter complying with (i) above, the
trustee may rely on an accountants report which contains a
limit on the liability of the reporting accountants by reference
to a monetary cap or otherwise.
You should be aware that the engagement letter for the reporting
accountants may contain a limit on the liability of the
reporting accountants which may impact on the interests of debt
security holders.
We shall give notice to the trustee of the identity of the
reporting accountants.
Put
Option Redemption Procedures
In order to exercise the option of redemption of a debt security
in the event of an occurrence of a put event, the debt security
holder must deliver each debt security to be redeemed
accompanied by a duly signed and completed notice (which we
refer to as a put notice). The put notice must be
delivered on any business day falling within the period of
45 days after we or the trustee, as the case may be,
provide a put event notice to the debt security holders. We
refer to this period as the put period.
The put notice shall also specify an account to which payment is
to be made for the put option redemption. The debt security
should be delivered after the date falling seven days after the
expiry of the put period. We refer to the date on which the debt
security should be delivered as the put date.
In return for the receipt of the debt security and put notice,
the debt security holder will receive a non-transferable
receipt. Unless otherwise specified in the applicable prospectus
supplement, payment in respect of any debt security so delivered
will be made, if the debt security holder duly specified a bank
account in the put notice to which payment is to be made, on the
put date by transfer to that bank account. A put notice, once
given, shall be irrevocable. We shall redeem the relevant debt
securities on the put date unless previously redeemed or
purchased.
If you hold your debt securities through a nominee or broker,
you will need to instruct your nominee or broker, as applicable,
to tender the required notice and deliver the applicable debt
securities so that such tender complies with the procedures set
forth above.
Negative
Pledge
Unless otherwise specified in the applicable prospectus
supplement, so long as any debt securities of a series remain
outstanding (as defined in the indenture), the company will not
create or permit to subsist any mortgage, charge, pledge, lien
or other form of encumbrance or security interest upon the whole
or any part of its undertaking, its assets or revenues present
or future to secure any Relevant Indebtedness (as defined
below), or any guarantee of or indemnity in respect of any
Relevant Indebtedness unless, at the same time or prior thereto,
our obligations under the debt securities and the indenture
(a) are secured equally and rateably therewith or benefit
from a guarantee or indemnity in substantially identical terms
thereto, as the case may be, in each case to the satisfaction of
the trustee, or (b) have the benefit of such other
security, guarantee, indemnity or other arrangement as the
trustee in its absolute discretion shall deem to be not
materially less beneficial to the holders of the debt securities
or as shall be approved by the holders of not less than 75% in
aggregate principal amount of the debt securities of any series.
Relevant Indebtedness means any present or future
indebtedness in the form of, or represented by, bonds, notes,
debentures, loan stock or other securities which are for the
time being, or are intended, with the agreement of NG, to be
quoted, listed or ordinarily dealt in on any stock exchange.
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Consolidation,
Amalgamation, Merger and Sale or Lease of Assets
Unless the applicable prospectus supplement provides otherwise,
so long as any debt security of a series remains outstanding, we
are permitted to consolidate, amalgamate with or merge into any
other corporation or convey, transfer or lease our properties
and assets substantially as an entirety to any person (as
defined in the indenture). However, we may not take these
actions unless:
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the corporation formed by such consolidation or amalgamation or
into which we are merged, or the person which acquires, leases
or is the transferee of or recipient of the conveyance of
substantially all or all of our properties and assets, shall:
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(a) be a corporation or other person organized and validly
existing under the laws of the United States, the United Kingdom
or any other country that is a member of the Organisation for
Economic Co-operation and Development (as the same may be
constituted from time to time); and
(b) expressly assume, by a supplement to the applicable
indenture that is executed and delivered in form reasonably
satisfactory to the trustee, with any amendments or revisions
necessary to take account of the jurisdiction in which any such
corporation or other person is organized (if other than England
and Wales);
(i) the due and punctual payment of the principal of (and
premium, if any, on) and interest, if any, on all of the debt
securities of such a series;
(ii) the performance of every covenant of the indenture
(other than a covenant included in the indenture solely for the
benefit of a series of debt securities other than such debt
securities) and of such debt securities on our part to be
performed;
(iii) such assumption shall provide that such corporation
or person shall pay to the holder of any such debt securities
such additional amounts as may be necessary in order that every
net payment of the principal of (and premium, if any, on) and
interest, if any, on such debt securities will not be less than
the amounts provided for in such debt securities to be then due
and payable; and
(iv) with respect to (iii) above, such obligation
shall extend to any deduction or withholding for or on account
of any present or future tax, assessment or governmental charge
imposed upon such payment by the United Kingdom or the country
in which any such corporation or person is organized or resident
for tax purposes or any district, municipality or other
political subdivision or taxing authority thereof (subject to
the limitations contained in Payments of
Additional Amounts below, as applied to such corporation
or person and, if applicable, such other country); and
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immediately after giving effect to such transaction, no event of
default with respect to the debt securities of such a series,
and no event which, after notice or lapse of time, or both,
would become an event of default, with respect to such debt
securities, shall have occurred and be continuing.
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Upon any such consolidation, amalgamation or merger, or any such
conveyance, transfer or lease, the successor corporation or
person will succeed to, and be substituted for, and may exercise
all of our rights and powers under the indenture with the same
effect as if such successor corporation or person had been named
as the issuer thereunder and thereafter, except in the case of a
lease, the predecessor corporation shall be relieved of all
obligations and covenants under the applicable indenture and
such debt securities.
Events of
Default
Unless the applicable prospectus supplement provides otherwise,
the following events will constitute an event of default under
the indenture with respect to a series of debt securities
(whatever the reason for such event of default and whether it
will be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any principal (or premium, if
any) due on the debt securities, and continuance of such default
for a period of 14 days;
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(b) default in the payment of any interest (and additional
amounts, if any) due on the debt securities, and continuance of
such default for a period of 30 days;
(c) default in the performance, or breach, of any covenant
or warranty (other than any obligation for the payment of any
principal or interest with respect to the debt securities)
applicable to us contained in the indenture, and which default
is incapable of remedy or, if in the opinion of the trustee is
capable of remedy and has not been remedied within 90 days
after the trustee having given us written notice as provided in
the indenture;
(d) if (i) any of our or any Principal
Subsidiarys (as defined below) present or future Relevant
Indebtedness becomes due and payable prior to its stated
maturity by reason of an actual event of default or
(ii) any amount with respect to such Relevant Indebtedness
is not paid when due or, as the case may be, within any
applicable grace period, provided that the aggregate amount of
the Relevant Indebtedness with respect to any of the events
described in this paragraph equals or exceeds £50,000,000,
for the period up to March 31, 2017, and £100,000,000
thereafter;
(e) either a court in the United Kingdom issues a final
order or an effective shareholders resolution is validly
adopted, and where possible, such resolution or final order is
not discharged or stayed within 90 days, for our winding up
or dissolution;
(f) attachment is made of the whole or substantially the
whole of our assets or undertakings and such attachment is not
released or cancelled within 90 days or an encumbrancer
takes possession or an administrative or other receiver or
similar officer is appointed of the whole or substantially the
whole of our undertaking or assets or an administration or
similar order is made to us, and such taking of possession,
appointment or order is not released, discharged or cancelled
within 90 days;
(g) we cease to carry on all or substantially all of our
business, or we are unable to pay debts within the meaning of
Section 123(1)(e) or Section 123(2) of the U.K.
Insolvency Act 1986; or
(h) we are adjudged bankrupt or insolvent by a court of
competent jurisdiction in our country of incorporation.
Principal Subsidiary means each one of National Grid
Gas plc, National Grid Electricity Transmission plc, National
Grid USA, and includes any successor thereto or any of our
subsidiaries which our auditors have certified to the trustee as
being a company to which all or substantially all of the assets
of a Principal Subsidiary are transferred. In the event that all
or substantially all of the assets of a Principal Subsidiary are
transferred to such a subsidiary, the transferor of such assets
will cease to be deemed a Principal Subsidiary.
If an event of default with respect to a series of debt
securities occurs and is continuing, either the trustee or the
holders of at least 25% in principal amount of the outstanding
debt securities of that series by written notice as provided in
the indenture may declare the principal amount of all
outstanding debt securities of that series to be due and payable
immediately. At any time after a declaration of acceleration has
been made, but before a judgment or decree for payment of money
has been obtained by the trustee, and subject to applicable law
and certain other provisions of the indenture, the holders of a
majority in aggregate principal amount of the debt securities
may, under certain circumstances, rescind and annul such
acceleration.
The indenture provides that, within 120 days after the
occurrence of any event which is, or after notice or lapse of
time or both would become, an event of default with respect to a
series of debt securities, the trustee will transmit, in the
manner set forth in the indenture and subject to the exceptions
described below, notice of such default to the holders of the
debt securities of that series unless such default has been
cured or waived. However, except in the case of a default in the
payment of principal of, or premium, if any, or interest on, or
additional amounts with respect to, any debt securities, the
trustee may (although there is no obligation on it to do so)
withhold such notice if and so long as the board, executive
committee or a trust committee of directors
and/or
responsible officers of the trustee in good faith determine that
the withholding of such notice is in the best interest of the
holders of the debt securities. If an event of default occurs,
has not been waived and is continuing with respect to a series
of debt securities, the trustee may in its discretion proceed to
protect and enforce its rights and the rights of the holders of
the debt securities of that series by all appropriate
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judicial proceedings. The indenture provides that, subject to
the duty of the trustee during any default to act with the
required standard of care, the trustee will be under no
obligation to exercise any of its rights or powers under the
indenture at the request or direction of any of the holders of
the debt securities, unless such holders shall have offered to
the trustee indemnity or security satisfactory to the trustee.
Subject to such provisions for the indemnification of the
trustee, and subject to applicable law and certain other
provisions of the indenture, the holders of a majority in
aggregate principal amount of the outstanding debt securities of
a series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the
trustee, with respect to the debt securities of that series.
Modification
and Waiver
In general, we and the trustee may modify or amend the indenture
with the consent of the holders of not less than a majority in
aggregate principal amount of the debt securities of each series
affected by such modification; provided, however, that no such
modification or amendment may, without the consent of the holder
of each outstanding debt security affected thereby:
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change the stated maturity of the principal of, or any premium
or installment of interest on, the debt securities;
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reduce the principal amount of, or the rate (or modify the
calculation of such principal amount or rate) of interest on, or
any premium payable upon the redemption of, the debt securities;
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change the redemption provisions of the debt securities or,
following the occurrence of any event that would entitle a
holder to require us to redeem or repurchase the debt securities
at the option of the holder, adversely affect the right of
redemption or repurchase at the option of such holder, of the
debt securities;
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change the place of payment or the coin or currency in which the
principal of, any premium or interest on or any additional
amounts with respect to, the debt securities is payable;
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impair the right to institute suit for the enforcement of any
payment on or after the stated maturity of the debt securities
(or, in the case of redemption, on or after the redemption date
or, in the case of repayment at the option of any holder, on or
after the repayment date);
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reduce the percentage in principal amount of the debt
securities, the consent of whose holders is required in order to
take specific actions;
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reduce the requirements for quorum or voting by holders of the
debt securities in the applicable section of the indenture;
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modify any of the provisions in the indenture regarding the
waiver of past defaults and the waiver of certain covenants by
the holders of such debt securities except to increase any
percentage vote required or to provide that other provisions of
the indenture cannot be modified or waived without the consent
of the holder of each note affected thereby; or
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modify any of the above provisions.
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We and the trustee may modify or amend the indenture and the
debt securities without the consent of any holder in order to,
among other things:
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provide for our successor pursuant to a consolidation,
amalgamation, merger or sale of assets that complies with the
provisions under Consolidation, Amalgamation,
Merger and Sale or Lease of Assets above;
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add to our covenants for the benefit of the holders of the debt
securities or to surrender any right or power conferred upon us
by the indenture;
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provide for a successor trustee with respect to the debt
securities;
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cure any ambiguity or correct or supplement any provision in the
indenture which may be defective or inconsistent with any other
provision, or to make any other provisions with respect to
matters or questions arising under the indenture which will not
adversely affect the interests of the holders of the debt
securities;
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change the conditions, limitations and restrictions on the
authorized amount, terms or purposes of issue, authentication
and delivery of the debt securities under the indenture;
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add any additional events of default with respect to the debt
securities;
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provide for conversion or exchange rights of the holders of the
debt securities; or
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make any other change that does not materially adversely affect
the interests of the holders of the debt securities.
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The holders of at least a majority in aggregate principal amount
of the debt securities of any series may, on behalf of the
holders of the debt securities, waive compliance by us with
certain restrictive provisions of the indenture. The holders of
not less than a majority in aggregate principal amount of the
debt securities of any series may, on behalf of the holders of
the debt securities, waive any past default and its consequences
under the indenture with respect to the debt securities, except
a default (1) in the payment of principal of, any premium
or interest on or any additional amounts with respect to the
debt securities or (2) in respect of a covenant or
provision of the indenture that cannot be modified or amended
without the consent of the holder of each note.
Under the indenture, we are required to furnish the trustee
annually a statement as to performance by us of certain of our
obligations under the indenture and as to any default in such
performance.
Discharge,
Defeasance and Covenant Defeasance
Unless the applicable prospectus supplement provides otherwise,
we may discharge certain obligations to holders of a series of
debt securities that have not already been delivered to the
trustee for cancellation and that either have become due and
payable or will become due and payable within one year (or
called for redemption within one year) by depositing with the
trustee, in trust, funds in U.S. dollars or Government
Obligations (as defined below) in an amount sufficient to pay
the entire indebtedness on the debt securities with respect to
principal and any premium, interest and additional amounts to
the date of such deposit (if the debt securities have become due
and payable) or with respect to principal, any premium and
interest to the maturity or redemption date thereof, as the case
may be.
The indenture provides that, unless the provisions relating to
discharge and defeasance are made inapplicable to the debt
securities, we may elect either (1) to defease and be
discharged from any and all obligations with respect to the debt
securities (except for, among other things, the obligation to
pay additional amounts, if any, upon the occurrence of certain
events of taxation, assessment or governmental charge with
respect to payments on the debt securities and other obligations
to register the transfer or exchange of the debt securities, to
replace temporary or mutilated, destroyed, lost or stolen debt
securities, to maintain an officer or agency with respect to the
debt securities and to hold moneys for payment in trust)
(defeasance) or (2) to be released from our
obligations with respect to the debt securities under certain
covenants such that any omission to comply with such obligations
thereafter will not constitute a default or an event of default
with respect to the debt securities (covenant
defeasance). Defeasance or covenant defeasance, as the
case may be, will be conditioned upon the irrevocable deposit by
us with the trustee, in trust, of an amount in
U.S. dollars, or Government Obligations, or both,
applicable to such debt securities which through the scheduled
payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal
of, any premium and interest on the debt securities on the
scheduled due dates or any prior redemption date.
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Such a trust may only be established if, among other things:
(1) the applicable defeasance or covenant defeasance does
not result in a breach or violation of, or constitute a default
under, any material agreement or instrument, other than the
indenture, to which we are a party or by which we are bound;
(2) no event of default or event which with notice or lapse
of time or both would become an event of default with respect to
the debt securities to be defeased will have occurred and be
continuing on the date of establishment of such a trust after
giving effect to such establishment and, with respect to
defeasance only, no insolvency proceeding will have occurred and
be continuing at any time during the period ending on the
91st day after such date;
(3) we have delivered to the trustee an opinion of counsel
(as specified in the indenture) to the effect that the holders
of the debt securities will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and such
opinion of counsel, in the case of defeasance, must refer to and
be based upon a letter ruling of the Internal Revenue Service
received by us, a Revenue Ruling published by the Internal
Revenue Service or a change in applicable U.S. federal
income tax law occurring after the date of the indenture;
(4) with respect to defeasance, we have delivered to the
trustee an officers certificate as to solvency and the
absence of intent by us to prefer holders of the debt securities
over our other creditors; and
(5) we have delivered to the trustee an officers
certificate and opinion of counsel stating that all conditions
precedent to defeasance or covenant defeasance in the indenture,
as the case may be, have been complied with.
Government Obligations means debt securities which
are (1) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or
(2) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America which, in the case of clauses (1) and
(2), are not callable or redeemable at the option of the issuer
or issuers thereof, and will also include a depository receipt
issued by a bank or trust company as custodian with respect to
any such Government Obligation or a specific payment of interest
on or principal of or any other amount with respect to any such
Government Obligation held by such custodian for the account of
the holder of such depository 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
depository receipt from any amount received by the custodian
with respect to the Government Obligation or the specific
payment of interest on or principal of or any other amount with
respect to the Government Obligation evidenced by such
depository receipt.
In the event we effect covenant defeasance with respect to the
debt securities and the debt securities are declared due and
payable because of the occurrence of any event of default other
than an event of default with respect to any covenant as to
which there has been covenant defeasance, the Government
Obligations on deposit with the trustee, will be sufficient to
pay amounts due on the debt securities at the time of the stated
maturity or redemption date but may not be sufficient to pay
amounts due on the debt securities at the time of the
acceleration resulting from such event of default. However, we
would remain liable to make payment of such amounts due at the
time of acceleration.
Payment
of Additional Amounts
Unless otherwise specified in the applicable prospectus
supplement, we will make all payments of principal and premium,
if any, interest and any other amounts on, or in respect of, the
debt securities without withholding or deduction at source for,
or on account of, any present or future taxes, fees, duties,
assessments or governmental charges of whatever nature imposed
or levied by or on behalf of any Relevant Jurisdiction, as
defined below, or any political subdivision of any Relevant
Jurisdiction or any authority in or of any Relevant Jurisdiction
having the power to tax, unless such taxes, fees, duties,
assessments or governmental charges are
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required to be withheld or deducted. If a withholding or
deduction at source is required, we will, unless the applicable
prospectus supplement provides otherwise, subject to certain
limitations and exceptions described below, pay to the holder of
any debt securities, as additional interest, such additional
amounts as may be necessary so that every net payment of
principal, premium, if any, interest or any other amount made to
such holder, after the withholding or deduction, will not be
less than the amount provided for in such debt securities or in
the indenture to be then due and payable.
We will not be required to pay any additional amounts:
(1) for or on behalf of a person who is liable to such
taxes or duties in respect of such debt securities by reason of
having some connection with the Relevant Jurisdiction other than
the mere holding of such debt securities;
(2) in connection with presentation in the Relevant
Jurisdiction where presentation is required;
(3) if the holder or the beneficial owner of the relevant
debt security failed to comply with a request by us or other
authorized person addressed to the holder or beneficial owner,
as the case may be, to provide information concerning the
nationality, residence or identity of the holder or the
beneficial owner or to make any declaration or other similar
claim to satisfy any information or other requirement, which is
required or imposed by a statute, treaty, regulation or
administrative practice of a taxing jurisdiction as a
precondition to exemption from all or part of the tax and which
such holder or beneficial owner is legally able to satisfy;
(4) where presentation is required, more than 30 days
after the Relevant Date (as defined below) except to the extent
that the holder would have been entitled to such additional
amounts, on presenting the same for payment on such thirtieth
day;
(5) where such withholding or deduction is imposed on a
payment to an individual and is required to be made pursuant to
European Union Directive 2003/48/EC on the taxation of savings
income or any law implementing or complying with, or introduced
in order to confirm to, such directive;
(6) for or on behalf of a holder who would have been able
to avoid such withholding or deduction by presenting, where
presentation is required, the relevant debt securities to
another Paying Agent in a member state of the European
Union; or
(7) with respect to any combination of items (1), (2), (3),
(4), (5) or (6) above.
Relevant Date means the date on which the payment of
principal of (or premium, if any) or interest, if any, on any
series of debt securities first becomes due or (if any amount of
the money payable is improperly withheld or refused) the date on
which payment in full of the amount outstanding is made or (if
earlier) the date on which notice is duly given to the holder
that upon presentation of the debt security in global or
definitive form payment will be made provided that payment is in
fact made upon such presentation.
Relevant Jurisdiction as used herein means the
United Kingdom or any other jurisdiction in which we are
resident for tax purposes.
In addition, unless otherwise specified in the applicable
prospectus supplement, we will not pay additional amounts with
respect to any payment of principal of, or premium, if any,
interest or any other amounts on, any such debt securities to
any holder who is a fiduciary or partnership or other than the
sole beneficial owner of such debt securities if such payment
would be required by the laws of the Relevant Jurisdiction (or
any political subdivision or relevant taxing authority thereof
or therein) to be included in the income for tax purposes of a
beneficiary or partner or settlor with respect to such fiduciary
or a member of such partnership or a beneficial owner to the
extent such beneficiary, partner or settlor would not have been
entitled to such additional amounts had it been the holder of
the note.
Redemption
of Debt Securities for Tax Reasons
Unless otherwise specified in the applicable prospectus
supplement, we or our successor may redeem any series of the
debt securities at our option, in whole but not in part, at a
redemption price equal to 100% of the
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principal amount, together with accrued and unpaid interest and
additional amounts, if any, to the date fixed for redemption, if
as a result of any change in or amendment to the laws or
treaties (or any regulations or rulings promulgated under these
laws or treaties) of the Relevant Jurisdiction or any taxing
authority in the Relevant Jurisdiction (or any political
subdivision) or any change in the application or official
interpretation of such laws, regulations or rulings occurring,
in the case of a redemption by us, on or after the date of
issuance of the series of debt securities or, in the case of a
redemption by our successor, on or after the date on which the
successor corporation assumes the obligation under the debt
securities, we will be required as of the next interest payment
date to pay additional amounts with respect to the debt
securities as provided in Payment of
Additional Amounts above and such requirements cannot be
avoided by the use of reasonable measures (such measures not
involving any material additional payments or expense by us)
then available. If we elect to redeem the debt securities under
this provision, we will give written notice of such election to
the trustee and the holders of the debt securities. Interest on
the debt securities will cease to accrue unless we default in
the payment of the redemption price.
Prior to giving the notice of a tax redemption, we will deliver
to the trustee a certificate signed by a duly authorized officer
stating that we are entitled to effect the redemption and
setting forth a statement of facts showing that the conditions
precedent to our right to so redeem have occurred.
Governing
Law
The indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York
applicable to agreements made or instruments entered into and,
in each case, performed in that state.
Information
Concerning the Trustee
The indenture provides that the trustee will have no obligations
other than the performance of such duties as are specifically
set forth in such indenture, except that, if an event of default
has occurred and is continuing, the trustee will use the same
degree of care and skill in its exercise of the rights and
powers vested in it by the indenture as a prudent person would
exercise under the circumstances in the conduct of such
persons own affairs. The trustee will be under no
obligation to exercise any of its rights or powers under the
indenture unless such holders shall have offered to the trustee
security and indemnity satisfactory to the trustee against any
loss, liability or expense, and then only to the extent required
by the terms of the indenture. The Bank of New York Mellon
(formerly The Bank of New York) is to be the trustee and
paying agent under the indenture, is one of a number of banks
with which NG and its subsidiaries maintain banking
relationships in the ordinary course of business and they are
the depositary for our American Depositary Shares.
CLEARANCE
AND SETTLEMENT
Unless the applicable prospectus supplement provides otherwise,
if we issue Global Securities representing any debt securities,
then the Global Securities will be deposited upon issuance with,
or on behalf through one or more international and domestic
clearing systems. The principal clearing systems we will use are
the book-entry systems operated by DTC in the United States,
Clearstream in Luxembourg and Euroclear in Brussels, Belgium.
These systems have established electronic debt securities and
payment transfer, processing, depositary and custodial links
among themselves and others, either directly or through
custodians and depositaries. These links allow debt securities
to be issued, held and transferred among the clearing systems
without the physical transfer of certificates.
Special procedures to facilitate clearance and settlement have
been established among these clearing systems to trade
securities across borders in the secondary market. Where
payments for debt securities we issue in global form will be
made in U.S. dollars, these procedures can be used for
cross-market transfers and the securities will be cleared and
settled on a delivery against payment basis.
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Global securities will be registered in the name of and
deposited with a nominee for, and accepted for settlement and
clearance by, one or more of DTC and a common depositary for
Euroclear and Clearstream, and any other clearing system
identified in the applicable prospectus supplement.
Cross-market transfers of debt securities that are not in global
form may be cleared and settled in accordance with other
procedures that may be established among the clearing systems
for these securities. Investors in securities that are issued
outside of the United States, its territories and possessions
must initially hold their interests through Euroclear,
Clearstream or the clearing system that is described in the
applicable prospectus supplement.
The policies of DTC, Euroclear and Clearstream will govern
payments, transfers, exchange and other matters relating to
investors interests in debt securities held by them. This
is also true for any other clearing system that may be named in
a prospectus supplement.
Neither we, nor any trustee, paying agent or registrar have any
responsibility for any aspect of the actions of DTC, Euroclear
and Clearstream or any of their direct or indirect participants
or accountholders. Neither we, nor any trustee, paying agent or
registrar have any responsibility for any aspect of the records
kept by DTC, Euroclear and Clearstream or any of their direct or
indirect participants or accountholders. Neither we, nor any
trustee, paying agent or registrar supervise these systems in
any way. This is also true for any other clearing system
indicated in a prospectus supplement.
DTC, Euroclear and Clearstream and their participants and
accountholders perform these clearance and settlement functions
under agreements they have made with one another or with their
customers. You should be aware that they are not obligated to
perform these procedures and may modify them or discontinue them
at any time.
The description of the clearing systems in this section reflects
our understanding of the rules and procedures of DTC,
Clearstream and Euroclear as they are currently in effect. Those
systems could change their rules and procedures at any time.
The
Clearing Systems
DTC.
DTC has advised us as follows:
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a limited purpose trust company organized under the laws of the
State of New York;
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a banking corporation within the meaning of New York
Banking Law;
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a member of the Federal Reserve System;
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a clearing corporation within the meaning of the
Uniform Commercial Code; and
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a clearing agency registered pursuant to the
provisions of Section 17A of the Exchange Act.
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DTC was created to hold securities for its participants and to
facilitate the clearance and settlement of securities
transactions between participants through electronic book-entry
changes to accounts of its participants. This eliminates the
need for physical movement of certificates.
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Participants in DTC include securities brokers and dealers,
banks, trust companies and clearing corporations and may include
certain other organizations. DTC is partially owned by some of
these participants or their representatives.
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Indirect access to the DTC system is also available to banks,
brokers, dealers and trust companies that have relationships
with participants.
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The rules applicable to DTC and DTC participants are on file
with the SEC.
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Clearstream.
Clearstream has advised us as
follows:
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Clearstream is a duly licensed bank organized as a
société anonyme incorporated under the laws of
Luxembourg and is subject to regulation by the Luxembourg
Commission for the Supervision of the Financial Sector
(Commission de Surveillance du Secteur Financier).
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Clearstream holds securities for its customers and facilitates
the clearance and settlement of securities transactions among
them. It does so through electronic book-entry charges to the
accounts of its customers. This eliminates the need for physical
movement of certificates.
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Clearstream provides other services to its accountholders,
including safekeeping, administration, clearance and settlement
of internationally traded securities and lending and borrowing
of securities.
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Clearstreams customers include worldwide securities
brokers and dealers, banks, trust companies and clearing
corporations and may include professional financial
intermediaries. Its U.S. customers are limited to
securities brokers and dealers and banks.
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Indirect access to the Clearstream system is also available to
others that clear through Clearstream customers or that have
custodial relationships with its customers, such as banks,
brokers, dealers and trust companies.
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Euroclear.
Euroclear has advised us as follows:
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Euroclear is incorporated under the laws of Belgium as a bank
and is subject to regulation by the Belgian Banking and Finance
Commission (Commission Bancaire et Financière) and the
National Bank of Belgium (Banque Nationale de Belgique).
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Euroclear holds securities for its customers and facilitates the
clearance and settlement of securities transactions among them.
It does so through simultaneous electronic book-entry delivery
against payment, thereby eliminating the need for physical
movement of certificates.
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Euroclear provides other services to its customers, including
credit custody, lending and borrowing of securities and
tri-party collateral management. It interfaces with the domestic
markets of several other countries.
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Euroclear customers include banks, including central banks,
securities brokers and dealers, trust companies and clearing
corporations and may include certain other professional
financial intermediaries.
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Indirect access to the Euroclear system is also available to
others that clear through Euroclear customers or that have
relationships with Euroclear accountholders.
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All securities in Euroclear are held on a fungible basis. This
means that specific certificates are not matched to specific
securities clearance accounts.
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Other
Clearing Systems
We may choose any other clearing system for a particular series
of debt securities. The clearance and settlement procedures for
the clearing system we choose will be described in the
applicable prospectus supplement.
Primary
Distribution
The distribution of the debt securities will be cleared through
one or more of the clearing systems that we have described above
or any other clearing system that is specified in the applicable
prospectus supplement. Payment for debt securities will be made
on a delivery versus payment or free delivery basis. These
payment procedures will be more fully described in the
applicable prospectus supplement.
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Clearance and settlement procedures may vary from one series of
debt securities to another according to the currency that is
chosen for the specific series of debt securities. Customary
clearance and settlement procedures are described below.
We will submit applications to the relevant system or systems
for the debt securities to be accepted for clearance. The
clearance numbers that are applicable to each clearance system
will be specified in the prospectus supplement.
Clearance
and Settlement Procedures DTC
DTC participants that hold debt securities through DTC on behalf
of investors will follow the settlement practices applicable to
U.S. corporate debt obligations in DTCs
Same-Day
Funds Settlement System.
Securities will be credited to the securities custody accounts
of these DTC participants against payment in
same-day
funds, for payments in U.S. dollars, on the settlement
date. For payments in a currency other than U.S. dollars,
securities will be credited free of payment on the settlement
date.
Clearance
and Settlement Procedures Euroclear and
Clearstream
We understand that investors that hold their debt securities
through Euroclear or Clearstream accounts will follow the
settlement procedures that are applicable to conventional
Eurobonds in registered form, or such other procedures as are
applicable for other securities.
Securities will be credited to the securities custody accounts
of Euroclear and Clearstream accountholders on the business day
following the settlement date, for value on the settlement date.
They will be credited either free of payment or against payment
for value on the settlement date.
Secondary
Market Trading
Trading between DTC Participants.
Secondary
market trading between DTC participants will occur in the
ordinary way in accordance with DTCs rules. Secondary
market trading will be settled using procedures applicable to
U.S. corporate debt obligations in DTCs
Same-Day
Funds Settlement System for debt securities.
If payment is made in U.S. dollars, settlement will be in
same-day
funds. If payment is made in a currency other than
U.S. dollars, settlement will be free of payment. If
payment is made other than in U.S. dollars, separate
payment arrangements outside of the DTC system must be made
between the DTC participants involved.
Trading between Euroclear
and/or
Clearstream Accountholders.
We understand that
secondary market trading between Euroclear
and/or
Clearstream accountholders will occur in the ordinary way
following the applicable rules and operating procedures of
Euroclear and Clearstream. Secondary market trading will be
settled using procedures applicable to conventional Eurobonds in
registered form.
Trading between DTC and Euroclear or
Clearstream.
Cross-market transfers between DTC,
on the one hand, and directly or indirectly through Euroclear or
Clearstream participants, on the other, will be effected in DTC
in accordance with DTC rules on behalf of Euroclear or
Clearstream, as the case may be, by its respective depositary;
however, these cross-market transactions will require delivery
of instructions to Euroclear or Clearstream, as the case may be,
by the counterparty in the system in accordance with its rules
and procedures and within its established deadlines (Brussels
time). Euroclear or Clearstream, as the case may be, will, if
the transaction meets its settlement requirements, deliver
instructions to its respective depositary to take action to
effect final settlement on its behalf by delivering or receiving
interests in the global notes in DTC, and making or receiving
payment in accordance with normal procedures for
same-day
funds settlement applicable to DTC. Euroclear participants and
Clearstream participants may not deliver instructions directly
to the depositaries for Euroclear or Clearstream.
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Special
Timing Considerations
You should be aware that investors will only be able to make and
receive deliveries, payments and other communications involving
the debt securities through Clearstream and Euroclear on days
when those systems are open for business. Those systems may not
be open for business on certain days when banks, brokers and
other institutions are open for business in the United States.
In addition, because of time-zone differences, there may be
problems with completing transactions involving Clearstream and
Euroclear on the same business day as in the United States.
U.S. investors who wish to transfer their interests in the
debt securities, or to receive or make a payment or delivery of
the debt securities, on a particular day, may find that the
transactions will not be performed until the next business day
in Luxembourg or Brussels, depending on whether Clearstream or
Euroclear is used.
MATERIAL
TAX CONSIDERATIONS
This section discusses the material U.K. and U.S. federal
income tax consequences of the ownership of the debt securities
as of the date of this prospectus. This summary applies to you
only if:
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You are, for U.S. federal income tax purposes, a beneficial
owner of a debt security and an individual U.S. citizen or
resident, a U.S. corporation, or otherwise subject to
U.S. federal income tax on a net income basis in respect of
the debt securities;
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You purchase the debt securities in their original issuance at
the issue price, which will equal the first price to
the public (not including bond houses, brokers or similar
persons or organizations acting in the capacity of underwriters,
placement agents or wholesalers) at which a substantial amount
of the debt securities is sold for money, and you hold such debt
securities as capital assets for U.S. federal income tax
purposes; and
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You are not resident or ordinarily resident in the United
Kingdom for U.K. tax purposes, and do not hold the debt
securities for the purposes of a trade, profession, or vocation
that you carry on in the United Kingdom through a permanent
establishment.
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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 debt securities
generally and with any special rules to which you may be
subject. In particular, the discussion does not address the tax
treatment of investors that are subject to special rules, such
as certain financial institutions, insurance companies,
tax-exempt organizations, dealers in securities or currencies,
persons that control (directly or indirectly) 10% or more of our
voting stock, persons that elect
mark-to-market
treatment, persons that hold the debt securities as a position
in a straddle, conversion transaction, synthetic security, or
other integrated financial transaction for U.S. federal tax
purposes, persons subject to the alternative minimum tax and
persons whose functional currency is not the U.S. dollar.
The discussion that follows is of a general nature, and
additional disclosure regarding the tax treatment of specific
debt securities may be provided in the prospectus supplement for
such instruments. The discussion assumes the debt securities
issued will be U.S. dollar-denominated debt. Any special
consequences, including, but not limited to, consequences
resulting from currency denomination other than the
U.S. dollar, puts, calls, discounts or premium,
contingencies, caps or collars will be discussed in the relevant
prospectus supplement. To the extent there is any inconsistency
in the discussion of tax consequences between this prospectus
and the applicable prospectus supplement, you should rely on the
discussion in the prospectus supplement.
The discussion below regarding U.S. federal income tax
consequences is based upon the Internal Revenue Code of 1986, as
amended (the Code), final and proposed Treasury
regulations promulgated thereunder and any relevant
administrative rulings or pronouncements or judicial decisions,
all as of the date hereof and as currently interpreted, and does
not take into account possible changes in such tax laws or
interpretations thereof, which may apply retroactively. The
statements regarding U.K. tax laws set forth below are based on
the laws in force on the date of this prospectus, which are
subject to change.
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If a partnership holds the debt securities, the tax treatment of
a partner will generally depend upon the status of the partner
and the activities of the partnership. If you are a partner of a
partnership holding the debt securities, you should consult your
tax advisor.
THIS DISCUSSION OF U.K. AND U.S. FEDERAL INCOME TAX
CONSIDERATIONS IS NOT INTENDED, AND SHOULD NOT BE CONSTRUED, TO
BE TAX OR LEGAL ADVICE TO ANY PARTICULAR INVESTOR IN OR HOLDER
OF THE DEBT SECURITIES. PROSPECTIVE INVESTORS ARE ADVISED TO
CONSULT THEIR OWN TAX ADVISORS CONCERNING THE APPLICATION OF THE
U.K. AND U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR
SITUATIONS AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER THE
LAWS OF ANY OTHER TAXING JURISDICTION OR ANY APPLICABLE TAX
TREATIES, AND THE POSSIBLE EFFECT OF CHANGES IN APPLICABLE TAX
LAW.
U.K.
Taxation
Interest.
Payments of interest on the debt
securities should be exempt from withholding or deduction for or
on account of U.K. tax under the provisions of U.K. tax law
relating to quoted Eurobonds, provided that the debt
securities are listed on a recognized stock exchange
within the meaning of section 841 of the Income and
Corporation Taxes Act 1988. Under section 987 of the Income
Tax Act 2007, quoted Eurobond is defined to mean any
security that: (i) is issued by a company, (ii) is
listed on a recognized stock exchange and (iii) carries a
right to interest. The New York Stock Exchange, the London Stock
Exchange, the Irish Stock Exchange and the Luxembourg Stock
Exchange are currently amongst those recognized for these
purposes. Accordingly, so long as the particular series of debt
securities is listed on one of such exchanges, interest payments
made on the debt securities will be payable without withholding
or deduction for or on account of U.K. income tax. The
applicable purchase agreement will indicate the exchanges on
which the debt securities are listed.
Purchase, Sale and Retirement of Debt
Securities.
Holders of the debt securities will
not be liable for U.K. taxation on capital gains realized on a
sale or other disposal or redemption or conversion of the debt
securities.
European
Union Tax Reporting and Withholding
The Council of the European Union approved, on June 3,
2003, Council Directive 2003/48/EC regarding the taxation of
savings income. The Directive became effective on July 1,
2005. Under this directive, if a paying agent for interest on a
debt claim is established in one member state of the European
Union and an individual who is the beneficial owner of the
interest is a resident of another member state, then the former
member state will be required to provide information (including
the identity of the recipient) to authorities of the latter
member state. Paying agent is defined broadly for
this purpose and generally includes any agent of either the
payor or payee as well as the payor itself. This requirement is
subject to the right of Belgium, Luxembourg and Austria to opt
instead to withhold tax on the interest during a transitional
period (initially at a rate of 15% but rising in steps to 35%
after six years).
The Directive also applies to dependent and associated
territories of the United Kingdom and the Netherlands. A number
of non-European Union countries and territories, including
Switzerland, have agreed to adopt similar measures (a
withholding system in the case of Switzerland).
U.S.
Taxation
Interest Payments.
Payments or accruals of
qualified stated interest (as defined below) on the
debt securities will be includible in your gross income as
ordinary interest income at the time you receive or accrue such
amounts (in accordance with your regular method of tax
accounting). The term qualified stated interest
generally means stated interest that is unconditionally payable
at least annually during the entire term of a debt security at a
single fixed interest rate or, subject to certain conditions, at
a floating rate based on one or more interest indices.
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Unless otherwise specified in the applicable prospectus
supplement, we expect interest payments on the debt securities
to be treated as qualified stated interest and we
expect the debt securities to be issued without original
issue discount (of more than a statutorily defined de
minimis amount). If we issue debt securities that have
original issue discount (of more than a statutorily
defined de minimis amount) or provide for payments of interest
that we do not expect to be treated as qualified stated
interest, we will describe the tax treatment of such debt
securities in the applicable prospectus supplement.
Interest paid by us on the debt securities constitutes foreign
source income for U.S. federal income tax purposes. For
foreign tax credit limitation purposes, interest on the debt
securities generally will constitute passive income.
Additional Amounts paid pursuant to the obligations described
under Description of the Debt Securities
Payment of Additional Amounts would be treated as ordinary
interest income.
Sale, Exchange, Redemption and Other Disposition of the Debt
Securities.
Upon the sale, exchange, redemption
or other disposition of the debt securities, you will recognize
taxable gain or loss equal to the difference, if any, between
the amount realized on the sale, exchange, redemption or other
disposition (other than accrued but unpaid interest which will
be treated as ordinary interest income) and your adjusted tax
basis in such debt securities. Your adjusted tax basis in the
debt securities generally will equal the cost of such debt
securities. Any such gain or loss generally will be capital gain
or loss and will be long-term capital gain or loss if at the
time of sale, exchange, redemption or other disposition you held
the debt securities for more than one year. The deductibility of
capital losses is subject to certain limitations. Any gain or
loss realized by a U.S. holder on the sale, exchange,
redemption or other disposition of the debt securities generally
will be treated as U.S. source gain or loss, as the case
may be.
Information Reporting and Backup
Withholding.
Information returns may be filed
with the IRS in connection with payments of interest on the debt
securities and the proceeds from a sale or other disposition of
the debt securities unless the holder of the debt securities
establishes an exemption from the information reporting rules. A
holder of debt securities that does not establish such an
exemption may be subject to U.S. backup withholding tax on
these payments if the holder fails to provide its taxpayer
identification number or otherwise comply with the backup
withholding rules. The amount of any backup withholding from a
payment to you will be allowed as a credit against your
U.S. federal income tax liability and you may be entitled
to a refund, provided that the required information is furnished
to the IRS.
PLAN OF
DISTRIBUTION
We may sell the debt securities directly to purchasers or
underwriters or through agents, dealers or underwriters.
The prospectus supplement with respect to the offered securities
will set forth the terms of the offering of the offered
securities, including the name or names of any underwriters,
dealers or agents, the purchase price of the offered securities
and the proceeds to us, from such price and any discounts or
concessions allowed or reallowed or paid to dealers and any
securities exchange on which such offered securities may be
listed. Any public offering price, discounts or concessions
allowed or reallowed or paid to dealers may be changed from time
to time.
The distribution of the offered securities may be effected from
time to time in one or more transactions at a fixed price or
prices, which may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices
or at negotiated prices.
Agents appointed by us may solicit offers to purchase debt
securities. The prospectus supplement will name these agents,
who may be underwriters, and discuss any commissions payable to
them. Unless otherwise indicated in the prospectus supplement,
these agents will be acting on a best efforts basis for the
period of their appointment. We may also sell debt securities to
an agent as principal. Any such agent may be deemed to be an
underwriter, as that term is defined in the Securities Act, of
the offered debt securities. Agents may be entitled to
indemnification by us against certain liabilities, including
liabilities under the Securities Act, and
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may be customers of, engage in transactions with or perform
services for us in the ordinary course of business.
If any underwriters are utilized in the sale of debt securities,
we will enter into an underwriting agreement with such
underwriters and the names of the underwriters and the terms of
the transaction, including, commissions, discounts and any other
compensation of the underwriters, if any, will be set forth in
the prospectus supplement, which will be used by the
underwriters to make resales of the debt securities to the
public. If underwriters are utilized in the sale of the debt
securities, the debt securities will be acquired by the
underwriters for their own account and may be offered and may be
resold from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices, or at
varying prices determined by the underwriters at the time of
sale.
Our debt securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or
directly by the managing underwriters. Unless otherwise
indicated in the prospectus supplement, the underwriting
agreement will provide that the obligations of the underwriters
are subject to certain conditions precedent. The underwriters
will be obligated to purchase all of the debt securities of a
series if they purchase any of such securities. We may grant to
the underwriters options to purchase additional debt securities,
to cover over-allotments, if any, at the public offering price
(with additional underwriting discounts or commissions), as may
be set forth in the prospectus supplement relating thereto. If
we grant any over-allotment option, the terms of such
over-allotment option will be set forth in the prospectus
supplement relating to such securities. The underwriters may be
entitled to indemnification by us against certain liabilities,
including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services
for us in the ordinary course of business.
If a dealer is utilized in the sale of debt securities in
respect of which this prospectus is delivered, we will sell the
debt securities to the dealer, as principal. The dealer may then
resell the debt securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer
may be deemed to be an underwriter, as such term is defined in
the Securities Act, of the debt securities so offered and sold.
The name of the dealer and the terms of the transaction will be
set forth in the related prospectus supplement. Dealers may be
entitled to indemnification by us against certain liabilities,
including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services
for us in the ordinary course of business.
Offers to purchase offered securities may be solicited directly
by us, and the sale thereof may be made by us directly to
institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act with
respect to any resale thereof. The terms of any such sales will
be described in the related prospectus supplement.
Debt securities may also be offered and sold, if so indicated in
the prospectus supplement, in connection with a remarketing upon
their purchase, in accordance with a redemption or repayment
pursuant to their terms, or otherwise, by one or more marketing
firms (remarketing firms), acting as principals for
their own accounts or as agents for us. Any remarketing firm
will be identified and the terms of its agreement, if any, with
us and its compensation will be described in the prospectus
supplement. Remarketing firms may be deemed to be underwriters
in connection with the debt securities remarketed thereby.
Remarketing firms may be entitled under agreements which may be
entered into with us to indemnification by us against certain
liabilities, including liabilities under the Securities Act, and
may be customers of, engage in transactions with or perform
services for us in the ordinary course of business.
If indicated in the prospectus supplement, we will authorize
agents, underwriters, dealers or other persons to solicit offers
by certain purchasers to purchase debt securities from us at the
public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will
be subject to only those conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth the
commission payable for solicitation of such offers.
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Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
persons controlling us pursuant to the foregoing provisions, we
have been informed 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.
Each series of debt securities will be a new issue and will have
no established trading market. We may elect to list any series
of debt securities on an exchange but, unless otherwise
specified in the applicable prospectus supplement, we shall not
be obligated to do so. No assurance can be given as to the
liquidity of the trading market for any of the debt securities.
Underwriters, dealers, agents and remarketing firms, or their
affiliates, may be customers of, engage in transactions with, or
perform services for, us and our subsidiaries in the ordinary
course of business.
LEGAL
MATTERS
Certain legal matters in connection with the debt securities to
be offered hereby will be passed upon for us by
Dewey & LeBoeuf LLP and Dewey & LeBoeuf,
London, England. Certain legal matters in connection with the
debt securities to be offered hereby will be passed upon for any
underwriters or agents by counsel to be named in the applicable
prospectus supplement.
EXPERTS
The financial statements of National Grid plc as of
March 31, 2009 and 2008 and for each of the three years in
the period ended March 31, 2009 and managements
assessment of the effectiveness of internal control over
financial reporting (which is included in Managements
Report on Internal Control over Financial Reporting),
incorporated by reference in this Prospectus have been so
incorporated in reliance on the audit report of
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts
in auditing and accounting.
ENFORCEMENT
OF CIVIL LIABILITIES UNDER UNITED STATES
FEDERAL SECURITIES LAWS
We are an English public limited company. Most of our directors
and executive officers 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 U.S. courts judgments obtained in U.S. courts
predicated upon the civil liability provisions of the federal
securities laws of the United States. We have been advised by
Dewey & LeBoeuf that there is doubt as to
enforceability in England and Wales, in original actions or in
actions for enforcement of judgments of U.S. courts, of
liabilities predicated solely upon the federal securities laws
of the United States.
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PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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ITEM 8.
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INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
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The U.K. Companies Act 2006 (the Companies Act)
allows an English company to indemnify its directors against
liability and to provide its directors with funds to cover the
costs incurred in defending legal proceedings against him or
her. Under the Companies Act, an English company is allowed to
indemnify its directors against any liability incurred by a
director to any person (other than the company itself or any
associated company) in connection with any negligence, default,
breach of duty or breach of trust, by means of a
qualifying third party indemnity provision. A
qualifying third party indemnity provision may cover
the costs of a judgment against a director but cannot include
(i) costs incurred by a director to the company or any
associated company; (ii) fines imposed in criminal
proceedings and penalties imposed by regulatory authorities;
(iii) costs incurred in criminal proceedings where the
director is convicted or civil proceedings brought by the
company or an associated company where judgment is given against
him; or (iv) costs incurred in proceedings for relief where
the court refuses to grant relief.
NG arranges Directors and Officers liability
insurance cover. A qualifying third party indemnity provision
was granted in favor of the directors in accordance with
Sections 232 to 234 of the Companies Act. The indemnity
provision is contained in NGs articles of association at
Articles 130.1 to 130.3 which are set out below.
Article 130.1
Subject to the law, we will indemnify all our Directors
and officers out of our own funds against the following:
(a) Any liability incurred by or attaching to them in
connection with any negligence, default, breach of duty or
breach of trust by them in relation to NG other than:
(i) any liability to us or any associated company; and
(ii) any liability of the kind referred to in the Companies
Act.
(b) Any other liability incurred by or attaching to them:
(i) in actually or seemingly carrying out their duties;
(ii) in using or seemingly using their powers; and
(iii) in any other activity connected to their duties,
powers or office.
Where a Director or officer is indemnified against any liability
in line with this Article 130, the indemnity will cover all
costs, charges, losses, expenses and liabilities incurred by
them.
Article 130.2
As well as the cover provided under Article 130.1
above, the Directors will have power to purchase and maintain
insurance for or for the benefit of:
(a) any person who is or was at any time a Director or
officer of any relevant company; or
(b) any person who is or was at any time a trustee of any
pension fund or employees share scheme in which employees
of any relevant company are interested.
This includes insurance against any liability incurred by or
attaching to them through any act or omission:
(i) in actually or seemingly carrying out their duties;
(ii) in using or seemingly using their powers; and
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(iii) in any other activity connected to their duties,
powers or offices;
in relation to:
(aa) any relevant company;
(bb) any pension fund; or
(cc) any employees share scheme;
and all costs, charges, losses, expenses and liabilities
incurred by them in relation to any act or omission.
Article 130.3
Subject to the law, we will:
(a) provide a Director or officer with funds to meet
expenditure they have incurred or may incur in defending any
criminal or civil proceedings or in connection with any
application under the provisions mentioned in
Section 205(5) of the Companies Act;
(b) provide a Director or officer with funds to meet
expenditure they have incurred or may incur in defending an
investigation by a regulatory authority or against action
proposed by a regulatory authority in connection with any
alleged negligence, default, breach of duty or breach of trust
by him or her in relation to us; and
(c) do anything to enable a Director or officer to avoid
incurring such expenditure, but any funds we provide or other
things we do will be in line with Section 205(5) of the
Companies Act.
The relevant provisions of the Companies Act which permit the
giving of such indemnities are Sections 205 and 232 to 234.
Section 232(1) of the Companies Act states that a company
cannot exempt a director from any liability in connection with
any negligence, default, breach of duty or breach of trust in
relation to the company. Furthermore, Section 232(2) of the
Companies Act states that a company cannot, either directly or
indirectly, provide an indemnity for a director of the company,
or of an associated company, against any liability attaching to
him in connection with any negligence, default, breach of duty
or breach of trust in relation to the company of which he is a
director, except as permitted by Sections 233, 234 and 235
of the Companies Act. Section 233 permits a company to
purchase and maintain insurance against the liability mentioned
in Section 232(2). Section 234 sets out the conditions
which must be fulfilled for an indemnity to be a qualifying
third party indemnity. The indemnity must not provide:
(i) any indemnity against any liability incurred by the
director to the company or to any associated company;
(ii) any indemnity against any liability incurred by the
director to pay a fine imposed in criminal proceedings or a sum
payable to a regulatory authority by way of a penalty in respect
of non-compliance with any requirement of a regulatory nature;
and (iii) any indemnity against any liability incurred by
the director in defending criminal proceedings in which he is
convicted, defending civil proceedings brought by the company or
an associated company in which judgment is given against him, or
where the court refuses to grant him relief in connection with
an application under Section 661(3) or (4) (relief in case
of acquisition of shares by innocent nominee) or its power under
Section 1157 (relief in case of honest and reasonable
conduct). Section 235 permits indemnification of a director
of a company that is a trustee of an occupational pension scheme
against liability incurred in connection with the companys
activities as a trustee of the scheme, subject to the same
provisos as in Section 234.
Section 205 of the Companies Act provides that a company
can provide a director with funds to meet expenditures incurred
or to be incurred by him in defending any criminal or civil
proceedings in connection with any alleged negligence, default,
breach of duty or breach of trust by him in relation to the
company or an associated company, or in connection with any
application for relief under Section 661(3) or (4) (relief
in case of acquisition of shares by innocent nominee) or
Section 1157 (relief in case of honest and reasonable
conduct). The terms on which such loan or other assistance is
given must include a requirement that the loan
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be repaid or the liability discharged if the director is
convicted, judgment is found against him or the court refuses to
grant the relief on the application.
Except in limited circumstances (Section 994 of the
Companies Act) when a companys affairs are being or have
been conducted in a manner unfairly prejudicial to the interests
of all or some shareholders, or when any act or omission of the
company is or would be so prejudicial, English law does not
generally permit class action lawsuits by shareholders on behalf
of the company or on behalf of other shareholders.
We will indemnify and hold harmless each of our directors and
officers or authorized representatives who signs the
registration statement from and against civil liabilities,
including liabilities under U.S. securities laws, which
they may incur in their capacity.
The form of underwriting agreement to be filed or furnished in
connection with the issuance of any debt securities using the
prospectus to which this Registration Statement relates will
provide that each underwriter, severally, will indemnify NG and
each of its directors, officers and representatives who signed
the registration statement and each person, if any, who controls
NG within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act from and against certain
civil liabilities.
The exhibits to this registration statement are listed in the
Index to Exhibits below.
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 end 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 plan of distribution or any material
information with respect to the plan of distribution not
previously disclosed in the registration statement or any
material change to such information in the registration
statement;
provided, however, that paragraphs (i), (ii) and
(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the 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, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act 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.
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(4) To file a post effective amendment to the registration
statement to include any financial statements required by
Item 8.A. of
Form 20-F
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act of 1933
need not be furnished, provided that the registrant includes in
the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph
(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as
the date of those financial statements. Notwithstanding the
foregoing, a post-effective amendment need not be filed to
include financial statements and information required by
Section 10(a)(3) of the Securities Act of 1933 or
Rule 3-19
of
Regulation S-X
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.
(5) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by a registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(B) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which the prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(6) That, for the purpose of determining liability of a
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, each undersigned
registrant undertakes that in a primary offering of securities
of an undersigned registrant pursuant to this Registration
Statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of an
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of an undersigned registrant or used or
referred to by an undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
an undersigned registrant or its securities provided by or on
behalf of an undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by an undersigned registrant to the purchaser.
II-4
(7) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of National Grids
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 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.
(8) To file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a)
of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the
Trust Indenture Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of each 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 Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a registrant
of expenses incurred or paid by a director, officer or
controlling person of a 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, that registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-5
POWER OF
ATTORNEY AND SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
National Grid 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, City
of London, England, on the 16th day of June 2009.
National Grid plc
Steven Holliday
Group Chief Executive
The undersigned do hereby constitute and appoint Steven
Holliday, Stephen Lucas and Malcolm Cooper all or any one of
them, our true and lawful attorneys and agents, to sign for us
or any of us in our names and in the capacities indicated below,
any and all amendments (including post-effective amendments) to
this Registration Statement, or any related registration
statement that is to be effective upon filing pursuant to
Rule 462 (b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto and
other documents required in connection therewith, and to do any
and all acts and things in our names and in the capacities
indicated below, which said attorneys and agents, or either of
them, may deem necessary or advisable to enable said corporation
to comply with the Securities Act of 1933, as amended, and any
rules, regulations, and requirements of the Securities and
Exchange Commission, in connection with this Registration
Statement; and we do hereby ratify and confirm all that the said
attorneys and agents, or either of them, shall do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the
following persons in the capacities indicated on the
16th day of June 2009.
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Signature
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Title
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/s/ Steven
Holliday
Steven
Holliday
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Group Chief Executive (Principal Executive Officer)
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/s/ Stephen
Lucas
Stephen
Lucas
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Group Finance Director (Principal Financial Officer and
Principal Accounting Officer)
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/s/ Sir
John Parker
Sir
John Parker
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Chairman and non-executive Director
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/s/ Linda
Adamany
Linda
Adamany
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Non-executive Director
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/s/ Philip
Aiken
Philip
Aiken
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Non-executive Director
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/s/ John
Allan
John
Allan
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Non-executive Director
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/s/ Bob
Catell
Bob
Catell
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Deputy Chairman and non-executive Director
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II-6
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Signature
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Title
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/s/ Mark
Fairbairn
Mark
Fairbairn
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Director
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/s/ Kenneth
Harvey
Kenneth
Harvey
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Non-executive Director
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/s/ Tom
King
Tom
King
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Director
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/s/ Stephen
Pettit
Stephen
Pettit
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Non-executive Director
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/s/ Maria
Richter
Maria
Richter
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Non-executive Director
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/s/ George
Rose
George
Rose
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Non-executive Director
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/s/ Nick
Winser
Nick
Winser
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Director
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/s/ Colin
Owyang
Colin
Owyang
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(Authorized Representative in the United States)
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II-7
EXHIBIT INDEX
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Exhibit
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Number
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Description
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1
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.1
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Form of Underwriting Agreement Standard Provisions for debt
securities.
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4
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.1
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Form of Indenture entered into between the Company and The Bank
of New York (now The Bank of New York Mellon) (incorporated
herein by reference to exhibit 4.1 to the Companys
2006 Registration Statement on
Form F-3
(Registration
No. 333-135407)).
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4
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.2
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Form of First Supplemental Indenture between the Company and The
Bank of New York (now The Bank of New York Mellon) as Trustee
and Paying Agent (incorporated herein by reference to
exhibit 4.1 to the Companys Current Report on
Form 6-K
filed on July 21, 2006).
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5
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.1
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Opinion of Dewey & LeBoeuf LLP.
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5
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.2
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Opinion of Dewey & LeBoeuf.
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12
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.1
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Statement re: Computation of ratio of earnings to fixed charges.
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23
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.1
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Consent of PricewaterhouseCoopers LLP, independent registered
public accounting firm to National Grid plc.
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23
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.6
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Consent of Dewey & LeBoeuf LLP (included in
Exhibit 5.1).
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23
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.7
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Consent of Dewey & LeBoeuf (included in
Exhibit 5.2).
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24
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.1
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Powers of Attorney (included in the signature pages contained
herein).
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25
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.1
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Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York Mellon (formerly The
Bank of New York), as Trustee, under the Indenture.
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II-8
Exhibit 1.1
UNDERWRITING AGREEMENT
NATIONAL GRID plc
Debt Securities
Underwriting Agreement Standard Provisions
From time to time, National Grid plc, a public limited company incorporated under the laws of
England and Wales (the Company), may enter into one or more underwriting agreements in the form
of Annex A hereto that incorporate by reference these Standard Provisions (collectively with these
Standard Provisions, an Underwriting Agreement) that provide for the sale of the securities
designated in such Underwriting Agreement (the Securities) to the several Underwriters named
therein (the Underwriters), for whom the Underwriter(s) named therein shall act as representative
(the Representative). The Underwriting Agreement, including these Standard Provisions, is
sometimes referred to herein as this Agreement. The Securities will be issued pursuant to an
Indenture dated July 3, 2006 (the Indenture) between the Company and The Bank of New
York (now The Bank of New York Mellon), as trustee (the Trustee).
1.
Registration Statement
. The Company has prepared and filed with the Securities and
Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the Securities Act), a registration
statement on Form F-3 (File No. ___), including a prospectus (the Basic Prospectus), relating to
the debt securities to be issued from time to time by the Company. The Company has also filed, or
proposes to file, with the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Securities (the Prospectus Supplement). The registration
statement, as amended at the time it becomes effective, including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration
statement at the time of its effectiveness (Rule 430 Information), is referred to herein as the
Registration Statement; and as used herein, the term Prospectus means the Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the Securities in the form first
used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act)
in connection with confirmation of sales of the Securities and the term Preliminary Prospectus
means any preliminary prospectus supplement specifically relating to the Securities together with
the Basic Prospectus. If the Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities
Act (the Rule 462 Registration Statement), then any reference herein to the term
Registration Statement shall be deemed to include such Rule 462 Registration Statement.
Capitalized terms used but not defined herein shall have the meanings given to such terms in the
Registration Statement and the Prospectus. References herein to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein.
Annex A
The terms supplement, amendment and
amend as used herein with respect to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed by the Company under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (the Exchange Act) subsequent to the date of the Underwriting Agreement which are
deemed to be incorporated by reference therein. For purposes of this Agreement, the term
Effective Time means the effective date of the Registration Statement with respect to the
offering of Securities, as determined for the Company pursuant to Section 11 of the Securities Act
and Item 512 of Regulation S-K, as applicable.
At or prior to the time when sales of the Securities will be first made (the Time of Sale),
the Company will prepare certain information (collectively, the Time of Sale Information) which
information will be identified in Schedule 3 to the Underwriting Agreement for such offering of
Securities.
2.
Purchase of the Securities by the Underwriters
.
(a) The Company agrees to issue and sell the Securities to the several Underwriters named in
the Underwriting Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein, agrees, severally
and not jointly, to purchase from the Company the respective principal amount of Securities set
forth opposite such Underwriters name in the Underwriting Agreement at the purchase price set
forth in the Underwriting Agreement.
(b) Payment for and delivery of the Securities will be made at the time and place set forth in
the Underwriting Agreement. The time and date of such payment and delivery is referred to herein as
the Closing Date.
(c) The Company acknowledges and agrees that the Underwriters named in the Underwriting
Agreement are acting solely in the capacity of an arms length contractual counterparty to the
Company with respect to any offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, no such Underwriter is advising the
Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company
shall consult with its own advisors concerning such matters and shall be responsible for
making its own independent investigation and appraisal of the transactions contemplated hereby, and
such Underwriters shall have no responsibility or liability to the Company with respect thereto.
Any review by such Underwriters named in the Underwriting Agreement of the Company, the
transactions contemplated thereby or other matters relating to such transactions will be performed
solely for the benefit of the Underwriters and shall not be on behalf of the Company.
2
Annex A
3.
Representations and Warranties of the Company
. The Company represents and warrants
to each Underwriter that:
(a)
Registration Statement and Prospectus.
The Registration Statement is an automatic
effective registration statement as defined under Rule 405 of the Securities Act that has been
filed with the Commission not earlier than three years prior to the date hereof; and no notice of
objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration Statement has been issued by the
Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been initiated or threatened by the Commission;
as of the Effective Time, the Registration Statement complied in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the Trust Indenture Act), and did not or will not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not misleading; and as of the
date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the
Prospectus did not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided
that the
Company makes no representation and warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee
under the Trust Indenture Act or (ii) any statements or omissions in the Registration Statement and
the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use therein.
(b)
Time of Sale Information
. The Time of Sale Information, at the Time of Sale and at the
Closing Date 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
that the Company makes no representation and warranty with
respect to any statements or omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use in such Time of Sale Information. No statement of material fact
included in the Prospectus has been omitted from the Time of Sale Information and no statement of
material fact included in the Time of Sale Information that is required to be included in the
Prospectus has been omitted therefrom.
(c)
Issuer Free Writing Prospectus
. Other than the Preliminary Prospectus and the Prospectus,
the Company (including its agents and representatives, other than the Underwriters in their
capacity as such) has not made, used, prepared, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any written communication (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy
the Securities (each such communication by the Company or its agents and representatives (other
than a communication referred to in clause (i) below) an
3
Annex A
Issuer Free Writing Prospectus) other
than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act or (ii) the documents listed on Schedule 3 to
the Underwriting Agreement and other written communications approved in writing in advance by the
Representative. Each such Issuer Free Writing Prospectus complied in all material respects with
the Securities Act, has been filed in accordance with the Securities Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior
to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not,
and at the Closing Date 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
that the Company makes no
representation and warranty with respect to any statements or omissions made in each such Issuer
Free Writing Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in any Issuer Free Writing Prospectus.
(d)
Incorporated Documents
. The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when filed with the Commission,
conformed or will conform, as the case may be, in all material respects with the requirements of
the Exchange Act and did not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(e)
Financial Statements
. The financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as applicable, and present fairly in all material respects the financial
position of the Company and its subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such financial statements
have been prepared in conformity with applicable international financial reporting standards as
adopted by the European Union and as issued by the International Accounting Standards Board applied
throughout the periods covered thereby, and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly, in all material respects, the information
required to be stated therein; and the other financial information included or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus has been
derived from the accounting records of the Company and its subsidiaries and presents fairly, in all
material respects, the information shown thereby.
(f)
No Material Adverse Change.
There has not occurred any material adverse change in the
financial position or prospects of the Company and its subsidiaries, taken as a whole, from that
set forth in the Registration Statement, the Time of Sale Information and the Prospectus.
4
Annex A
(g)
Organization and Valid Existence.
The Company is duly organized and validly existing
under the laws of England and Wales.
(h)
Due Authorization.
The Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the Transaction Documents) and to
perform its obligations hereunder and thereunder; and all action required to be taken for the due
and proper authorization, execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly and validly taken.
(i)
The Indenture.
The Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act and constitutes a valid and
legally binding agreement of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors rights generally or by equitable principles relating to
enforceability (collectively, the Enforceability Exceptions).
(j)
The Securities
. The Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly
issued and outstanding and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(k)
Underwriting Agreement
. This Agreement has been duly authorized, executed and delivered
by the Company.
(l)
No Violation or Default.
The Company is not in violation of its memorandum and articles
of association. Neither the Company nor any of its principal subsidiaries is (i) in default and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its principal subsidiaries is a party or by which the Company or any of its principal
subsidiaries is bound or to which any of the property or assets of the Company or any of its
principal subsidiaries is subject; or (ii) in violation of any law or statute or any judgment,
order, rule or regulation of any United States or United Kingdom court or arbitrator or
governmental or regulatory authority in the United States or the United Kingdom, except, in the
case of clauses (i) and (ii) above, for any such default or violation that would not, individually
or in the aggregate, have a material adverse effect on the financial position or prospects of the
Company and its subsidiaries taken as a whole or on the performance by the Company of its
obligations under the Securities (a Material Adverse Effect).
(m)
No Conflicts.
The execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Securities and compliance by the Company with
the terms thereof and the consummation of the
5
Annex A
transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its principal
subsidiaries is a party or by which the Company or any of its principal subsidiaries is bound or to
which any of the property or assets of the Company or any of its principal subsidiaries is subject,
(ii) result in any violation of the provisions of the memorandum and articles of association of the
Company or (iii) result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority in the United States
or the United Kingdom, except, in the case of clauses (i) and (iii) above, for any such conflict,
breach or violation that would not, individually or in the aggregate, have a Material Adverse
Effect.
(n)
No Consents Required
. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority in the United States or the United Kingdom is required for the execution,
delivery and performance by the Company of each of the Transaction Documents, the issuance and sale
of the Securities and compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such consents, approvals,
authorizations, orders and registrations or qualifications (i) as have been obtained under the
Securities Act and the Trust Indenture Act and (ii) as may be required under applicable United
States state securities laws in connection with the purchase and distribution of the Securities by
the Underwriters.
(o)
Legal Proceedings.
Except as described or provided for in the Registration Statement, the
Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its subsidiaries is the
subject that, individually or in the aggregate, if determined adversely to the Company or any of
its subsidiaries, would reasonably be expected to have a Material Adverse Effect; no such
investigations, actions, suits or proceedings are threatened in writing.
(p)
Investment Company Act.
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the Registration
Statement, the Time of Sale Information and the Prospectus, will not be an investment company or
an entity controlled by an investment company within the meaning of the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively,
Investment Company Act).
(q)
Status under the Securities Act
. The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the
times specified in the Securities Act in connection with the offering of the Securities.
6
Annex A
(r)
Licenses and Permits.
The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the conduct of their
respective businesses as described in the Registration Statement, the Time of Sale Information and
the Prospectus, except where the failure to possess or make the same would not, individually or in
the aggregate, have a Material Adverse Effect; and except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, neither the Company nor any of its
subsidiaries has received written notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization
will not be renewed in the ordinary course, except where such revocation or modification or
non-renewal would not have a Material Adverse Effect.
4.
Further Agreements of the Company
. The Company covenants and agrees with each
Underwriter that:
(a)
Filings with the Commission.
The Company will (i) pay the registration fees for this
offering within the time period required by Rule 456(b)(i) under the Securities Act prior to the
Closing Date (ii) file the Prospectus in a form approved by the Underwriters with the Commission
pursuant to Rule 424 under the Securities Act not later than the close of business on the second
business day following the date of determination of the public offering price of the Securities or,
if applicable, such earlier time as may be required by Rule 424(b) and Rule 430A, 430B or 430C
under the Securities Act. The Company will file any Issuer Free Writing Prospectus to the extent
required by Rule 433 under the Securities Act; and the Company will furnish copies of the
Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next
succeeding the date of this Agreement in such quantities as the Representative may reasonably
request.
(b)
Delivery of Copies.
The Company will deliver, without charge, to each Underwriter during
the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference therein) and each Issuer
Free Writing Prospectus (if applicable) as the Representative may reasonably request. As used
herein, the term Prospectus Delivery Period means such period of time after the first date of the
public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered (or required to be delivered but for
Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or
dealer.
(c)
Amendments or Supplements; Issuer Free Writing Prospectuses.
Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company
will furnish to the Representative and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed
amendment or supplement to which the Representative reasonably objects unless, in the case of a filing, the Company is required by law to make such filing.
7
Annex A
(d)
Notice to the Representative.
The Company will advise the Representative promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus
or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration Statement or any other
request by the Commission for any additional information; (iv) of the issuance by the Commission of
any order suspending the effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence
of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of
Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading; (vi) of the
receipt by the Company of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities
Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the
qualification of the Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use its reasonable best
efforts to prevent the issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification of the Securities and, if any such order is issued, will obtain
as soon as possible the withdrawal thereof.
(e)
Ongoing Compliance.
(1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such dealers as the Representative may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which the Time of Sale Information as then
amended or
8
Annex A
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances,
not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare
and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish
to the Underwriters and to such dealers as the Representative may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(f)
Blue Sky Compliance.
The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the
Securities;
provided
that the Company shall not be required to (i) qualify as a foreign corporation
or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise
be required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g)
Restriction on Issuances.
During the period from the date hereof through and including
the Closing Date or such later date as is specified in the Underwriting Agreement, the Company will
not, without the prior written consent of the Representative, offer, sell, contract to sell or
otherwise dispose of, in the United States, any U.S. dollar-denominated debt securities issued or
guaranteed by the Company and having a tenor of more than one year.
(h)
Use of Proceeds.
The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading Use of Proceeds.
(i)
No Stabilization.
The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization in violation of
applicable laws or manipulation of the price of the Securities;
provided
, that no representation or
warranty is made with respect to the Underwriters.
(j)
Filing of Exchange Act Documents.
The Company will file promptly all reports and any
definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act during the Prospectus Delivery Period.
(k)
Record Retention
. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
9
Annex A
5.
Certain Agreements of the Underwriters
. Each Underwriter, severally and not
jointly, hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any free writing prospectus, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that contains no issuer information (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation
by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus,
(ii) any Issuer Free Writing Prospectus listed on Schedule 3 to the Underwriting Agreement or
prepared pursuant to Section 3(c) or Section 4(c) above, or (iii) any free writing prospectus
prepared by such underwriter and approved by the Company in advance in writing (each such free
writing prospectus referred to in clauses (i) or (iii), an Underwriter Free Writing Prospectus.).
(b) Other than in the United States, no action has been or will be taken by the Company in any
jurisdiction that would permit a public offering of the Securities or possession or distribution of
any Issuer Free Writing Prospectus, any Underwriter Free Writing Prospectus, the Time of Sale
Information or the Prospectus or any amendment or supplement thereto or any other offering material
relating to the Securities in any country or jurisdiction where action for that purpose is
required. Each Underwriter agrees that it will comply with all applicable laws and regulations in
each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its
possession or distributes any Issuer Free Writing Prospectus any Underwriter Free Writing
Prospectus, the Time of Sale Information or the Prospectus or any amendments or supplements thereto
or any such other material.
(c) It has not and will not distribute any Underwriter Free Writing Prospectus referred to in
clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination.
(d) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the
Securities unless such terms have previously been included in a free writing prospectus filed
with the Commission.
(e) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
(f)
Offer to Public
. It has not offered or sold and will not offer or sell prior to the
expiry of the period of six months from the Closing Date any 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, as amended.
10
Annex A
(g)
Financial Promotion
. 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) of Great Britain) received by it in connection with the issue or sale of such Securities or
any investments representing the Securities (including without limitation the Registration
Statement registering the Securities, the Time of Sale Information and the Prospectus) in
circumstances in which section 21(1) of the FSMA does not apply to the Company.
(h)
General Compliance
. It has complied and will comply with all the applicable provisions of
the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise
involving the United Kingdom.
(i) In relation to each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a Member State), with effect from and including the date on which the
Prospectus Directive is implemented in that Member State, it has not made and will not make an
offer of Securities to the public in that Member State, except that it may, with effect from and
including such date, make an offer of Securities to the public in that Member State:
(i) at any time to legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities;
(ii) at any time to any legal entity which has two or more of (1) an average of at least
250 employees during the last financial year; (2) a total balance sheet of more than
43,000,000; and (3) an annual net turnover
of more than
50,000,000, as shown in its last annual or consolidated accounts; or
(iii) at any time in any other circumstances which do not require the publication by us of
a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of the above, the expression an offer of Securities to the public in
relation to any Securities in any Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the Securities to be offered so as to
enable an investor to decide to purchase or subscribe the Securities, as the same may be varied in
that Member State by any measure implementing the Prospectus Directive in that Member State and the
expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing
measure in that Member State.
6.
Conditions of Underwriters Obligations.
The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company of its covenants and other obligations hereunder and to the following additional
conditions:
11
Annex A
(a)
Registration Compliance; No Stop Order.
If a post-effective amendment to the Registration
Statement is required to be filed under the Securities Act, such post-effective amendment shall
have become effective, and the Representative shall have received notice thereof, not later than
5:00 P.M., New York City time, on the date of the Underwriting Agreement; if applicable, the Rule
462(b) Registration Statement shall have become effective by 10:00 a.m. New York City time on the
business day following the date of the Underwriting Agreement; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose,
pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending
before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus
shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer
Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in
accordance with Section 4(a) hereof; and all requests by the Commission for additional information
shall have been complied with to the reasonable satisfaction of the Representative.
(b)
Representations and Warranties.
The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date;
and the statements of the Company and its senior representatives made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c)
No Downgrade
. If set forth in the Underwriting Agreement that incorporates by reference
these Standard Provisions that provide for the sale of these Securities, subsequent to the
execution and delivery of such Agreement, (i) no downgrading shall have occurred in the long-term
credit rating accorded the Securities or any other senior debt securities of or guaranteed by the
Company by Moodys Investor Services or Standard & Poors and (ii) no such organization shall have
publicly announced that it has under surveillance or review such rating of the Securities or any
other senior debt securities of or guaranteed by the Company (other than an announcement with
positive implications of a possible upgrading).
(d)
No Material Adverse Change.
No event or condition of a type described in Section 3(f)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the reasonable judgment of the
Representative (after consultations with the Company among senior representatives) makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the
Prospectus.
(e)
Senior Representatives Certificate.
The Representative shall have received on and as of
the Closing Date a certificate of an executive director, treasurer or controller of the Company who
has specific knowledge of the Companys financial matters and
12
Annex A
is satisfactory to the Representative
(i) confirming that such senior representative has carefully reviewed the Registration Statement,
the Time of Sale Information and the Prospectus and, to the best knowledge of such senior
representative, the representations set forth in Sections 3(a) and 3(b) hereof are true and
correct, (ii) confirming that the other representations and warranties of the Company in this
Agreement are true and correct and that the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date
and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f)
Comfort Letters.
If set forth in the Underwriting Agreement that incorporates by
reference these Standard Provisions that provide for the sale of these Securities, on the date of
such Agreement and on the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the
Representative, at the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type customarily included in
accountants comfort letters to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement, the
Time of Sale
Information (as applicable) and the Prospectus;
provided
that the letter delivered on the
Closing Date shall use a cut-off date no more than five business days prior to the Closing Date,
unless otherwise agreed.
(g)
Opinion of Counsel for the Company.
If set forth in the Underwriting Agreement that
incorporates by reference these Standard Provisions that provide for the sale of these Securities,
internal counsel of the Company shall have furnished to the Representative, at the request of the
Company, their written opinion, dated the Closing Date and addressed to the Underwriters, in form
and substance reasonably satisfactory to the Representative, to the effect set forth in Annex B-1
hereto. Dewey & LeBoeuf LLP, special New York counsel for the Company, shall have furnished to the
Representative, at the request of the Company, their written opinion and negative assurance letter,
both dated the Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex B-2 and Annex B-3,
respectively, hereto. Dewey & LeBoeuf, London, England, special United Kingdom counsel for the
Company, shall have furnished to the Representative, at the request of the Company, their written
opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex B-4 hereto.
(h)
Opinion of Counsel for the Underwriters.
If set forth in the Underwriting Agreement that
incorporates by reference these Standard Provisions that provide for the sale of these Securities,
the Representative shall have received on and as of the Closing Date an opinion of Davis Polk &
Wardwell, counsel for the Underwriters, with respect to such matters as the Representative may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
13
Annex A
(i)
No Legal Impediment to Issuance.
No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction or order of any U.S. federal, state or United Kingdom
court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of
the Securities.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters.
The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission
to state therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use therein.
(b)
Indemnification of the Company.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its senior representatives who signed the
Registration Statement and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to such Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being
understood and agreed that the only such information consists of the information identified in the
Underwriting Agreement as being provided by the Underwriters.
14
Annex A
(c)
Notice and Procedures.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the Indemnified Person) shall promptly notify the person against whom such
indemnification may be sought (the Indemnifying Person) in writing;
provided
that the failure to notify the Indemnifying Person shall not relieve it from any liability
that it may have under this Section 7 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided further
,
that the failure to notify the Indemnifying Person shall not relieve it from any liability that it
may have to an Indemnified Person otherwise than under this Section 7. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others entitled to
indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such proceeding as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representative and any such separate firm for the Company, its directors, its senior
representatives who signed the Registration Statement and any control persons of the Company shall
be designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed
15
Annex A
the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been
sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Person.
(d)
Contribution.
If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters and the parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e)
Limitation on Liability.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by
pro
rata
allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting
16
Annex A
discounts and commissions received by such Underwriter
with respect to the offering of the Securities exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to
contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f)
Non-Exclusive Remedies.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8.
Termination
. This Agreement may be terminated in the discretion of the
Representative, with respect to clauses (i), (ii) and (iii), by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on the New York Stock Exchange or the London Stock
Exchange; (ii) trading of any securities issued or guaranteed by the Company shall have been
suspended on any exchange; (iii) a general moratorium on commercial banking activities shall have
been declared by U.S. federal or New York State authorities or authorities in the United Kingdom;
(iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, involving the United States or the United Kingdom, that, in the
reasonable judgment of the Representative (after consultations with the Company among senior
representatives), is so material and adverse as to make it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Securities on the terms and in the manner contemplated
by this Agreement, the Time of Sale Information and the Prospectus.
9.
Defaulting Underwriter
.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the
Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Securities by other persons satisfactory to the Company
on the terms contained in this Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term Underwriter
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in the Underwriting Agreement that, pursuant to this Section 9, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
17
Annex A
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriters
pro
rata
share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section 9 shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses as set forth in
Section 10 hereof and except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
10.
Payment of Expenses
.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Securities and any
taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing
and distributing each of the Transaction Documents; (iv) the fees and expenses of the Companys
counsel and independent accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of the Securities
under the laws of such jurisdictions as the Representative may designate; (vi) any fees charged by
rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any
paying agent (including related fees and expenses of any counsel to such parties); and (viii) all
expenses incurred by the Company in connection with any road show presentation to potential
investors.
18
Annex A
(b) If (i) this Agreement is terminated pursuant to Section 8 (other than clause (v) of
Section 8 if the Company and the Underwriters subsequently enter into another agreement for the
Underwriters to underwrite the same or substantially similar securities of the Company), (ii) the
Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the
Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the
Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including
the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with
this Agreement and the offering contemplated hereby.
11.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers,
senior representatives and directors and any controlling persons referred to herein, and the
affiliates of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is
intended or shall be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein. No purchaser of
Securities from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
12.
Survival
. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
13.
Certain Defined Terms
. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities
Act; (b) the term business day means any day other than a day on which banks are permitted or
required to be closed in New York City or London; (c) the term subsidiaries has the meaning set
forth in Rule 405 under the Securities Act; and (d) the term principal subsidiaries means
National Grid Electricity Transmission plc, National Grid Gas plc and National Grid USA.
14.
Consent to Jurisdiction
.
(a) The Company irrevocably consents and agrees, for the benefit of the Underwriters, that any
legal action, suit or proceeding against it with respect to its obligations, liabilities or any
other matter arising out of or in connection with this Agreement may be brought in the courts of
the State of New York or the courts of the United States of America located in the Borough of
Manhattan, The City of New York and hereby irrevocably consents and submits to the non-exclusive
jurisdiction of each such court
in
personam
, generally and unconditionally with
respect to any action, suit or proceeding for itself and in respect of its properties, assets and
revenues.
19
Annex A
(b) The Company hereby irrevocably designates, appoints, and empowers CT Corporation System
with offices at 111 Eighth Avenue, 13th Floor, New York, New York 10011, as its designee, appointee
and agent to receive, accept and acknowledge for and on its behalf, and its properties, assets and
revenues, service of any and all legal process, summons, notices and documents which may be served
in any such action, suit or proceeding brought in any such United States or State court which may
be made on such designee, appointee and agent in accordance with legal procedures prescribed for
such courts. If for any reason such designee, appointee and agent hereunder shall cease to be
available to act as such, the Company agrees to designate a new designee, appointee and agent in
The City of New York on the terms and for the purposes of this Section 14 satisfactory to the
Representatives. The Company further hereby irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents out of any of the aforesaid courts in any
such action, suit or proceeding by serving a copy thereof upon the relevant agent for service of
process referred to in this Section 14 (whether or not the appointment of such agent shall for any
reason prove to be ineffective or such agent shall accept or acknowledge such service) or by
mailing copies thereof by registered or certified air mail, first class, postage prepaid, to each
of them at their respective addresses specified in or designated pursuant to this Agreement. The Company
agrees that the failure of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon. Nothing herein shall in any way be deemed to
limit the ability of any Underwriter to serve any such legal process, summons, notices and
documents in any other manner permitted by applicable law or to obtain jurisdiction over the
undersigned or bring actions, suits or proceedings against the undersigned in any jurisdictions,
and in any manner, as may be permitted by applicable law. The Company hereby irrevocably and
unconditionally waives, to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising
out of or in connection with this Agreement brought in the United States federal courts or the
courts of the State of New York located in the Borough of Manhattan, The City of New York and
hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such
court that any such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
15.
Miscellaneous
.
(a)
Authority of the Representative.
Any action by the Underwriters hereunder may be taken by
the Representative on behalf of the Underwriters, and any such action taken by the Representative
shall be binding upon the Underwriters.
20
Annex A
(b)
Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representative at the address
set forth in the Underwriting Agreement. Notices to the Company shall be given to it at National
Grid plc, 1-3 Strand, London, WC2N 5EH England, (fax: +44 20 7004 3342); Attention: Malcolm Cooper,
Director of Tax and Treasury, or if different, to the address set forth in the Underwriting
Agreement.
(c)
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d)
Amendments or Waivers.
No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(e)
Headings.
The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
21
Annex A
[Form of Underwriting Agreement]
Underwriting Agreement
, 200_
[Name(s) of Representative(s)]
As Representative(s) of the
several Underwriters listed
in Schedule 1 hereto
c/o [Name(s) and Address(es) of Representative(s)]
Ladies and Gentlemen:
National Grid plc, a public limited company incorporated under the laws of England and Wales
(the Company), proposes to issue and sell to the several underwriters listed in Schedule 1 hereto
(the Underwriters), for whom you are acting as representatives (the Representatives),
$
principal amount of its
% Notes due 20
having the terms set forth in Schedule
2 hereto (the Securities ). The Securities will be issued pursuant to an Indenture dated as of
July 3, 2006 as supplemented by a supplemental indenture dated
, 20
(such Indenture, as so
supplemented, the Indenture) between the Company and The Bank of New York Mellon (formerly the
Bank of New York), as trustee (the Trustee).
The Company agrees to issue and sell the Securities to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein, agrees, severally and
not jointly, to purchase from the Company the respective principal amount of Securities set forth
opposite such Underwriters name in Schedule 1 hereto at a price equal to
% of the principal
amount thereof plus accrued interest, if any, from the date of issuance of the Securities to the
Closing Date (as defined below). The Company will not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased as provided herein.
The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Securities on the terms set forth in the
Time of Sale Information and the Prospectus. Schedule 3 hereto sets forth the Time of Sale
Information made available at the Time of Sale . The Company acknowledges and agrees that the
Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and
that any such affiliate may offer and sell Securities purchased by it to or through any
Underwriter.
22
Annex A
Payment for and delivery of the Securities shall be made at the offices of Davis Polk &
Wardwell at 10:00 A.M., New York City time, on
, 20
, or at such other time or place
on the same or such other date, not later than the fifth business day thereafter, as the
Representative and the Company may agree upon in writing (the Closing Date).
Payment for the Securities shall be made by wire transfer in immediately available funds to
the account(s) specified by the Company to the Representatives against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the Global Note), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representatives not later than
P.M., New York City time, on
the business day prior to the Closing Date.
The Company and the Underwriters acknowledge and agree that the only information relating to
any Underwriter that has been furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment
or supplement thereto) any Issuer Free Writing Prospectus or any Time of Sale Information [and any
Preliminary Prospectus] consists of the following: a) the names of the underwriters on the front
cover page of the Preliminary Prospectus and the Prospectus; b) the names set forth in the table of
Underwriters in the list under the first paragraph of text under the caption Underwriting in the
Preliminary Prospectus and the Prospectus; and c) [
insert references to appropriate paragraphs
]
[and the following information in the Issuer Free Writing Prospectus dated
, 20
;
[insert description of information provided by Underwriters]]..
The obligation of each Underwriter to purchase Securities on the Closing Date as provided
herein is subject to the performance by the Company of its covenants and other obligations in the
Debt Securities Underwriting Agreement Standard Provisions [choose one as applicable for
transaction: including/excluding] Sections 6 (c), (f), (g) and (h) thereof.
[Consider definition of principal subsidiary based on current circumstances]
Unless otherwise indicated, all provisions contained in the document entitled National Grid
plc Debt Securities Underwriting Agreement Standard
Provisions (attached hereto as Annex A) are incorporated by reference herein in their entirety
and shall be deemed to be a part of this Underwriting Agreement to the same extent as if such
provisions had been set forth in full herein, except that if any term defined in such Underwriting
Agreement Standard Provisions is otherwise defined herein, the definition set forth herein shall
control.
This Agreement may be signed in counterparts (which may include counterparts delivered by any
standard form of telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
23
Annex A
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
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Very truly yours,
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National Grid plc
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By
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Title:
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Accepted:
, 20
[NAMES(S) OF REPRESENTATIVE(S)]
For [itself] [themselves] and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
By
Authorized Signatory
24
Annex A
Schedule 1
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Underwriter
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Principal Amount
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$
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Total
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$
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25
Annex A
Schedule 2
Representatives and Addresses for Notices:
Certain Terms of the Securities:
Title of Securities:
% Notes due 20__
Aggregate Principal Amount of Securities: $
Maturity Date:
, 20__
Interest Rate: ___ %
Interest Payment Dates:
and
, commencing
Record Dates:
and
Redemption Provisions: [
[Other Provisions:]
26
Annex A
Schedule 3
a. Time of Sale Information
Time of Sale: [ ]
[list each Issuer Free Writing Prospectus to be included in the Time of Sale Information]
Final Term Sheet substantially in the form attached hereto as Schedule 4
27
Annex A
Schedule 4
National Grid plc
Pricing Term Sheet
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Issuer:
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National Grid plc
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Type:
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SEC registered
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Size:
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$
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Maturity:
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, 20___
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Coupon:
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%
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Price:
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% of face amount
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Yield to maturity:
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%
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Ratings*
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[Spread to Benchmark Treasury:
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]
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[Benchmark Treasury:
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% due
]
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[Benchmark Treasury [Price] and Yield:
|
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%]
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Interest Payment Dates:
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and
, commencing
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, 20___
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Trade Date:
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[Redemption at the option of the Issuer:
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At any time at the greater of
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% or an adjusted Treasury
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Rate plus
basis points]
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Settlement Date:
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T+
;
, 20___
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[CUSIP:
|
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]
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[ISIN:
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]
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[Use of Proceeds:
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]
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Bookrunners:
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.
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*
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A securities rating is not a recommendation to buy, sell or hold securities and may be subject to
revision or withdrawal at any time.
|
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
toll-free 1-8[xx-xxx-xxxx] [or emailing [ ] at [.]]
28
Annex A
Annex B-1
Form of Opinion of Internal Counsel of National Grid plc
(1) The Company has corporate power and authority necessary to own or hold its properties and to
conduct the business in which it is engaged, except where the failure to have such power or
authority would not, individually or in the aggregate, affect the validity and binding nature of
the securities or have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(2) To the knowledge of such counsel, except as described in the Registration Statement, the Time
of Sale Information and the Prospectus (including, in each case, documents incorporated by
reference therein), there are no legal, governmental or regulatory actions, suits or proceedings in
the United Kingdom pending to which the Company or any of its principal subsidiaries in the United
Kingdom is a party or to which any property in the United Kingdom of the Company or any of such
principal subsidiaries is subject which, individually or in the aggregate, if determined adversely
to the Company or any of such principal subsidiaries, would reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as a whole; and no such actions,
suits or proceedings are threatened in writing.
29
Annex A
Annex B-2
Form of Negative Assurance Letter of Dewey & LeBoeuf, LLP
In the course of the preparation by the Company of the Prospectus, we have participated in
conferences with certain officers and employees of the Company, with representatives of
PricewaterhouseCoopers LLP, public accountants for the Company, and with representatives of and
counsel for the Underwriters, at which conferences the contents of the Registration Statement,
Preliminary Prospectus and the Prospectus and related matters were discussed and at which we
reviewed certain corporate records, documents and proceedings. Although we have not undertaken to
determine independently, do not express an opinion as to, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the Registration Statement,
the Preliminary Prospectus or the Prospectus, except to the limited extent stated expressly in
paragraphs
and
of our opinion to you in a separate letter dated the date hereof, we
advise you that based on our examination of the Registration Statement, the Preliminary Prospectus
and the Prospectus and upon the above-described procedures, nothing has come to our attention that
has caused us to believe that: (i) the Registration Statement,
as of its most recent effective date ([
], 2009),
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading; (ii) the Preliminary Prospectus, together with the final term sheets dated
relating to the Securities filed pursuant to Rule 433 under the Securities Act, as of
p.m.
New York City time on
(the Disclosure Package), contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading or (iii) the
Prospectus, as of its date, contained, or, on the date hereof, contains an untrue statement of a
material fact or omitted, or, on the date hereof, omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; it being understood that we express no view in any of clauses (i), (ii) or (iii) above
with respect to the financial statements and the notes thereto and related statements, supporting
schedules and other financial and accounting and related statistical information included, referred
to or incorporated by reference therein or omitted therefrom or the statement of eligibility of the
Trustee on Form T-1. In addition, we express no belief as to the conveyance for the purpose of Rule
159 under the Securities Act of the Disclosure Package or the information contained therein to
investors.
30
Annex A
ANNEX B-3
Form of Opinion of Dewey & LeBoeuf, LLP
In our examination, we have assumed, without inquiry, that (i) the Company has been duly
organized and is validly existing under the laws of England and Wales and has full power, capacity
and authority to make and perform its obligations under the Transaction Documents, (ii) each of the
Transaction Documents has been duly authorized, executed and delivered by the Company under the
laws of England and Wales, (iii) each of the parties to the Transaction Documents had the power and
authority to execute, deliver and perform all of its obligations under the Transaction Documents,
(iv) each such party has duly authorized each of the Transaction Documents by all requisite action
and has duly executed and delivered each of the Transaction Documents, (v) each of the Transaction
Documents represents the valid, binding and enforceable obligation of each party thereto other than
the Company, (vi) all natural persons have the requisite legal capacity, (vii) all signatures on
all documents examined by us are genuine, (viii) all documents submitted to us as originals are
authentic, (ix) all documents submitted to us as copies conform to the originals thereof and (x)
the originals of such latter documents are authentic. As to any facts material to our opinions, we
have, when the relevant facts were not independently established, relied upon the aforesaid
agreements (including the Transaction Documents), instruments, certificates, documents and records
and upon statements, representations, covenants and certificates of officers and representatives of
the Company and its subsidiaries and of public officials. Any use of an expression such as known
to us or to our knowledge refers to the actual knowledge of attorneys of this firm who have
devoted substantive attention to the offering, supplemented by inquiries with other attorneys of
this firm who have devoted substantive attention to any litigation matters (or related matters as
we deem appropriate) relating to the Company.
We have assumed the conformity of the documents filed with the SEC via the Electronic Data
Gathering, Analysis and Retrieval System (EDGAR), except for required EDGAR formatting changes,
to physical copies delivered to the Company and submitted for our examination.
Based upon and subject to the foregoing, and subject to the further qualifications,
assumptions and limitations set forth below, we are of the opinion that:
(1) To the extent that execution and delivery are matters of the law of the State of New York, the
Transaction Documents have been duly executed and delivered by the Company.
(2) The Indenture has been duly qualified under the U.S. Trust Indenture Act of 1939 and
constitutes a valid and binding obligation of the Company enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws relating to or
affecting creditors rights generally from time to time in
effect and to general principles of equity, regardless of whether such principles are considered in a proceeding in equity or
31
Annex A
at law);
and, assuming the due authorization of the Securities, the Securities, when executed and
authenticated in accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to the Underwriting Agreement, will constitute legal, valid and binding
obligations of the Company enforceable against the Company in accordance with their terms (subject
to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws relating to or affecting creditors rights generally from time to time in effect and
to general principles of equity, regardless of whether such principles are considered in a
proceeding in equity or at law).
(3) Neither the execution, delivery and performance by the Company of the Underwriting Agreement,
nor the compliance by the Company with all of the provisions thereof, nor the issuance and sale of
the Securities and compliance by the Company with the terms thereof and consummation of the
transactions by the Company contemplated thereby, will breach or violate any of the terms or
provisions of, or constitute a default under, any agreement of the Company governed by U.S. law and
set forth on Schedule I hereto, any United States federal or New York state law, rule or regulation
(other than any state securities Blue Sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters, as to which we express no opinion) or any
order known to us of any United States federal or New York state governmental agency having
jurisdiction over the Company.
(4) No consent, approval, authorization or order of or qualification with any United States or New
York State governmental body or agency that in our experience is normally applicable to general
business corporations or to non-U.S. incorporated public utility holding companies in relation to
transactions of the type contemplated by the Transaction Documents is required to be made or
obtained by the Company for the consummation by the Company of the transactions contemplated by the
Underwriting Agreement, except the registration under the Securities Act of the Securities, and
such consents, approvals, authorizations, registrations or qualifications (i) as have been obtained
and (ii) as may be required under state securities or Blue Sky laws or in connection with the
purchase and distribution of the Securities by the Underwriters (as to which we express no
opinion).
(5) The statements relating to legal documents included in the Prospectus under the caption
Description of the Notes, insofar as such statements purport to summarize provisions of the
Indenture and the Securities, fairly summarize such provisions in all material respects such legal
documents.
(6) The statements set forth in the Prospectus under the caption Material Tax ConsiderationsU.S.
Taxation, insofar as such statements purport to summarize certain provisions of the federal income
tax laws of the United States, fairly summarize such provisions in all material respects.
32
Annex A
(7) The Company is not and, after giving effect to the offering pursuant to the terms of the
Underwriting Agreement and application of the net proceeds from the offering as described in the
Prospectus under the caption Use of Proceeds, will not be, required to register as an investment
company as defined in the U.S. Investment Company Act of 1940, as amended.
(8) Based on our general review of the Registration Statement and the Prospectus and our
discussions with certain officers and employees of the Company, representatives of
PricewaterhouseCoopers LLP, public accountants for the Company, and with representatives of and
counsel for the Underwriters regarding the information furnished, but without independent check or
verification, each of the Registration Statement and the Prospectus (in each case except for the
financial statements and the notes thereto and related statements, supporting schedules and other
financial, accounting and related statistical information included, referred to or incorporated by
reference therein, or omitted therefrom, as to which we express no opinion), appears on its face to
comply as to form in all material respects with the requirements of the Securities Act and the
rules and regulations promulgated thereunder.
(9) To our knowledge, no stop order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceedings for that purpose have been instituted or are
pending by the Commission under the Securities Act.
In expressing the opinion in numbered paragraph 3 above, we do not express any opinion as to
whether or not the execution, delivery or performance by the Company of the Underwriting Agreement
will constitute a violation of, or a default under, any covenant, restriction or provision with
respect to financial ratios or tests or any aspect of the financial condition or results of
operations of the Company or any of its subsidiaries.
In expressing the opinion with respect to Material Tax ConsiderationsU.S. Taxation set
forth in numbered paragraph 6 above, we have relied upon the applicable provisions of the U.S.
Internal Revenue Code of 1986, as amended (the Code), Treasury Regulations promulgated thereunder
by the U.S. Department of Treasury (the Regulations), pertinent judicial decisions, rulings of
the U.S. Internal Revenue Service
and such other authorities as we have considered relevant, in each case as in effect on the date
hereof. It should be noted that such Code, Regulations, judicial decisions, administrative
interpretations and other authorities are subject to change at any time, perhaps with retroactive
effect. A material change in any of the laws, regulations, decisions, interpretations or
authorities upon which our opinion is based could affect such opinion.
In expressing the opinion in numbered paragraph 8, we necessarily assume the correctness and
completeness of the statements made by the Company in the
Registration Statement and the Prospectus and assume no responsibility therefor, except to the
limited extent set forth in numbered paragraphs 5 and 6.
33
Annex A
In rendering such opinion, such counsel may rely as to matters of fact on certificates of
responsible officers of the Company and public officials that are furnished to the Underwriters.
The opinion of Dewey & LeBoeuf LLP described above shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
34
Annex A
ANNEX B-4
Form of Opinion of Dewey & LeBoeuf
[To include customary assumptions and qualifications]
(1) The Company has been duly incorporated and is an existing corporation under the laws of England
and Wales.
(2) The Indenture has been duly authorized, executed and delivered (to the extent of matters of
English law) by the Company.
(3) The Securities have been duly authorized, executed and delivered (to the extent of matters of
English law) by the Company.
(4) This Agreement has been duly authorized, executed and delivered (to the extent of matters of
English law) by the Company.
(5) The execution, delivery and performance by the Company of each of the Transaction Documents,
the issuance and sale of the Securities and compliance by the Company with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents are not prohibited
by the provisions of the Memorandum of Association and Articles of Association of the Company.
(6) The statements set forth in the Prospectus under the caption Material Tax ConsiderationsU.K.
Taxation and European Union Tax Reporting Withholding, insofar as such statements purport to
summarize certain provisions of the tax laws of the United Kingdom or the European Union, fairly
summarize such provisions in all material respects.
In rendering such opinion, such counsel may rely as to matters of fact on certificates of
responsible officers of the Company and public officials that are furnished to the Underwriters.
The opinion of Dewey & LeBoeuf described above shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
35