EXHIBIT 1.1
Vodafone Group Public Limited Company
Debt Securities
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FORM OF UNDERWRITING AGREEMENT
TO THE REPRESENTATIVES NAMED FROM TIME TO TIME IN THE APPLICABLE PRICING
AGREEMENT HEREINAFTER DESCRIBED.
Ladies and Gentlemen:
From time to time Vodafone Group Public Limited Company, a public
limited company incorporated in England and Wales (the "Company"), proposes to
enter into one or more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, with such additions and deletions as the parties thereto
may determine and, subject to the terms and conditions stated herein and
therein, to issue and sell to the several firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the "Underwriters" with
respect to such Pricing Agreement and the securities specified therein) certain
of its debt securities (the "Securities") specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement. In addition, the Pricing Agreement may contain, if appropriate, the
terms and the conditions upon which the Designated Securities are to be offered
or sold outside the United States and any provisions relating thereto.
1. Particular sales of Designated Securities may be made from time to
time by the Company to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities except as set forth in a
Pricing Agreement, it being understood that the obligation of the Company to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the principal amount of such
Designated Securities to be
purchased by each Underwriter and the underwriting discount and/or commission,
if any, payable to the Underwriters with respect thereto and shall set forth the
date, time and manner of delivery of such Designated Securities and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the Indenture and the registration statement and prospectus with respect
thereto) the terms of such Designated Securities. A Pricing Agreement shall be
in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Company meets the requirements for the use of Form F-3 and a
registration statement on Form F-3 (File No. 333-____), including a
prospectus, relating to the Securities of the Company has been filed with
the Securities and Exchange Commission (the "Commission") in accordance
with applicable regulations of the Commission under the Securities Act of
1933, as amended (the "Act"), and has been declared effective under the
Act. Such registration statement, as amended to the date of this Agreement,
is hereinafter referred to as the "Registration Statement", and such
prospectus as proposed to be supplemented by a prospectus supplement (the
"Prospectus Supplement") relating to the Designated Securities to be filed
pursuant to Rule 424 under the Act is hereinafter referred to as the
"Prospectus". Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the date and time of this Agreement, and incorporated
by reference in the Prospectus pursuant to the applicable form, excluding
any documents or portions of such documents which are deemed under the
rules and regulations of the Commission under the Act not to be
incorporated by reference; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement or
the Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act deemed to be incorporated therein by
reference after the date of this Agreement. For purposes of this Agreement,
"Effective Time" with respect to the Registration Statement means (A) if
the Company has not advised the Representatives that it proposes to amend
such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) under the Act, or (B) if the Company has advised
the Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission.
"Effective Date" with respect to the Registration Statement means the date
of the Effective Time thereof;
(b) No stop order suspending the effectiveness of the Registration
Statement (as amended or supplemented) has been issued and no proceeding
for that purpose has been initiated or, to the knowledge of the Company,
threatened;
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(c) At the Effective Time, the Registration Statement and the
Prospectus conformed, and any amendments thereof and supplements thereto
relating to the Designated Securities will conform, in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder; each document filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus complied when so filed as
to form with the Exchange Act and the rules and regulations of the
Commission thereunder; the Indenture conforms in all material respects to
the requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder;
and neither the Registration Statement on the Effective Date nor the
Prospectus as of the date thereof and (as amended or supplemented) on the
Time of Delivery of the Designated Securities included or will include any
untrue statement of a material fact or omitted or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the case of the Registration Statement, not
misleading, or in the case of the Prospectus, in light of the circumstances
in which they were made, not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company makes no
representations as to (i) that part of the Registration Statement which
shall constitute a Trustee's Statement of Eligibility and Qualifications
(Form T-1) under the Trust Indenture Act and (ii) any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter of
Designated Securities by the Representatives expressly for use in
connection with the preparation of such documents;
(d) The Company has been duly incorporated and is validly existing as
a public limited company in good standing under the laws of England and
Wales, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, as amended or
supplemented; and
(e) All material consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any court or
governmental agency or body or any stock exchange authorities having
jurisdiction over the Company or any of its subsidiaries required for the
issue and sale of the Designated Securities and for the execution and
delivery by the Company of the applicable Pricing Agreement to be duly and
validly authorized, have been obtained or made and are in full force and
effect.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of
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the Company to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Company, in the funds specified in such Pricing Agreement, all in the manner and
at the place and time and date specified in such Pricing Agreement or at such
other place and time and date as the Representatives and the Company may agree
upon in writing, such time and date being herein called the "Time of Delivery"
for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives, which approval shall not be unreasonably withheld, and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to
the Registration Statement or Prospectus as amended or supplemented after
the date of the Pricing Agreement relating to such Designated Securities
and prior to the Time of Delivery for such Designated Securities which
shall be reasonably disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery
and furnish the Representatives with copies thereof; to file promptly all
reports required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Designated Securities, and during such same period to advise
the Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Designated Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Designated Securities or suspending any such qualification, to promptly use
its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may reasonably request and to comply
with such laws so as to permit the continuance of the distribution of the
Designated Securities therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Designated Securities,
provided that in connection therewith the Company shall not be (i) required
to qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction or (ii) obligated to pay or reimburse the
Underwriters for expenses (including fees and disbursements of counsel
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for the Underwriters) to the extent that such payment or reimbursement,
together with prior payments or reimbursements, exceed, in the aggregate,
$10,000 in connection with the offering and sale of Designated Securities
under state securities laws pursuant to this Agreement;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required under the Act at any time in connection with the
offering or sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance; provided, however,
that in case any Underwriter is required under the Act to deliver a
Prospectus in connection with the offering or sale of Designated Securities
at any time more than 30 days after the date of the related Pricing
Agreement, the cost of such preparation and furnishing of such amended or
supplemented Prospectus shall be borne by the Underwriters of such
Designated Securities;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the later of
(i) the termination of trading restrictions for such Designated Securities,
as notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives, which consent shall not be
unreasonably withheld.
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the
Pricing Agreement for such Designated Securities, and the Company shall at
the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
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6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or otherwise producing any
Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) subject to
Section 5(b)(ii) of this Agreement, all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws if required, including the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with
the Blue Sky and Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) filing fees incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with, any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the reasonable fees and expenses of any Trustee and any agent
of any Trustee and the reasonable fees and disbursements of counsel for any
Trustee in connection with any Indenture and the Securities; (viii) all U.K.
stamp or other issuance or transfer taxes (if any) arising as a result of the
issuance, sale and delivery outside the United Kingdom of the Securities by the
Underwriters to the initial purchasers thereof in the manner contemplated under
this Agreement; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties of the Company in or incorporated by reference in
the Pricing Agreement relating to such Designated Securities are, at and as of
the Time of Delivery for such Designated Securities, true and correct in all
material respects, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of the Pricing Agreement for such
Designated Securities; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or, to the knowledge
of the Company, threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
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(b) U.S. Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of
Delivery for such Designated Securities with respect to this Agreement, the
Designated Securities, the Indenture, the Underwriting Agreement, the
Prospectus and the Registration Statement (as amended a supplemental at the
Time of Delivery for such Designated Securities) and other related matters
as the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass on such matters;
(c) U.S. Counsel for the Company shall have furnished to the
Representatives its written opinion, dated the Time of Delivery for such
Designated Securities, substantially similar in form and substance to
Schedule 7(c)(i) attached hereto and a letter, dated the Time of Delivery
for such Designated Securities, substantially similar in form and substance
to Schedule 7(c)(ii) attached hereto;
(d) English counsel for the Company, shall have furnished to the
Representatives their written opinion, dated the Time of Delivery for such
Designated Securities, substantially similar in form and substance to
Schedule 7(d) attached hereto;
(e) The Group General Counsel and Company Secretary (or any other
person reasonably agreed by the Representatives in the applicable Pricing
Agreement) shall have furnished to the Representatives his or her written
opinion, dated the Time of Delivery for such Designated Securities,
substantially similar in form and substance to Schedule 7(e) attached
hereto;
(f) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to the Designated Securities and at the Time of Delivery for such
Designated Securities, each firm of independent accountants that has
certified financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement shall have
furnished to the Representatives and the directors of the Company a letter,
dated the effective date of the Registration Statement or the date of the
most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement, if
the date of such report is later than such effective date, and a letter
dated such Time of Delivery, respectively, to the effect set forth in Annex
II hereto, and with respect to such letter dated such Time of Delivery, as
to such other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(g) Except as contemplated in the Prospectus, as amended or
supplemented, since the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries considered as a whole which
the Representatives conclude, in their judgment, after consultation with
the Company, materially impairs the investment quality of the Designated
Securities so as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities as
contemplated by the Prospectus and there shall not have been any decrease
in the ratings of any of the Company's debt securities (or any public
announcement that the ratings of any of the Company's debt securities are
under surveillance or review, with negative implications) by either Moody's
Investors
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Service, Inc. or Standard & Poor's Rating Services, a division of the
XxXxxx-Xxxx Companies, Inc.;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange or on the London Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's securities on
the New York Stock Exchange or on the London Stock Exchange; (iii) a
general moratorium on commercial banking activities in New York City or
London declared by relevant authorities; or (iv) a change or development
involving a prospective change in taxation in the United Kingdom affecting
the transfer of the Securities or the imposition of exchange controls by
the United States or the United Kingdom; (v) a material outbreak or
escalation of hostilities involving the United States or the United Kingdom
or the declaration by the United States or the United Kingdom of a national
emergency or war or (vi) the occurrence of any material adverse change in
the existing financial, political or economic conditions in the United
States, the United Kingdom or elsewhere, where the effect of any such event
specified in paragraphs (i) through (vi) above is in the reasonable
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented relating to the
Designated Securities, provided that the Representatives shall have
consulted with the Company to the extent practicable prior to exercising
their rights under this paragraph (h);
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (g) of this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, any preliminary
prospectus supplement, the Registration Statement or the Prospectus as amended
or supplemented, in each case, relating to the Designated Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged
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omission made in any preliminary prospectus, any preliminary Prospectus
Supplement, the Registration Statement, the Prospectus as amended or
supplemented, in each case, relating to the Designated Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities; and provided, further, that the
Company shall not be liable to any Underwriter under the indemnity agreement in
this subsection (a) with respect to the Prospectus or the Prospectus as amended
or supplemented to the extent that any such loss, claim, damage or liability of
such Underwriter results from the fact that such Underwriter sold the applicable
Designated Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus
(excluding any documents incorporated by reference therein) or a copy of the
Prospectus as then amended or supplemented (excluding any documents incorporated
by reference therein) in any case where such delivery is required by the Act if
the Company has previously furnished copies thereof to such Underwriter in
accordance with Section 5(c).
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company, each of its
directors, officers, employees and agents, and each person who controls the
Company within the meaning of either the Act or the Exchange Act may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented, in each case, relating to
the Designated Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any preliminary prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and, in each case, relating to the Designated Securities, or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company, each of its
directors, officers, employees and agents, and each person who controls the
Company within the meaning of either the Act or the Exchange Act in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall, so far as permitted by any
insurance policy of the indemnified party and subject to the indemnifying party
agreeing to indemnify the indemnified party against all judgments and other
liabilities resulting from such action, be entitled to participate therein and,
to the extent that it may elect by written notice delivered to the indemnified
party promptly after
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receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided
that, if the defendants in any such action include both the indemnified party
and the indemnifying party, and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel, to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party shall not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the representatives representing the indemnified
parties who are parties to such action), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii). An indemnifying
party will not, without the prior written consent of each indemnified party,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations (including,
without limitation, any failure by a party, promptly after its receipt of notice
of the commencement of any action in respect of which contribution may be sought
under this subsection (d), to notify the other party
10
in writing of the commencement of such action). The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters, in each
case as set forth on the cover page of the Prospectus, as amended or
supplemented. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act or the Exchange Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director, employee and
agent of the Company and to each person, if any, who controls the Company within
the meaning of the Act or the Exchange Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion, after giving notice to and consulting with the Company,
arrange for themselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Designated Securities, or the Company notifies the
Representatives that it
11
has so arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
12
Representatives for all reasonable out-of-pocket expenses approved in writing by
the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Company Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. The Company irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by any Underwriter or by any person who
controls any Underwriter arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York Court, (ii)
waives, to the fullest extent it may effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company has appointed CT CORPORATION SYSTEM, New York,
New York, as its authorized agent (the "Authorized Agent") upon whom process may
be served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York Court
by any Underwriter or by any person who controls any Underwriter, expressly
consents to the jurisdiction of any such court in respect of any such action,
and waives any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointment shall be irrevocable. The Company represents
and warrants that the Authorized Agent has agreed to act as such agent for
service of process and agrees to take any and all action, including the filing
of any and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
13
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company will indemnify each Underwriter
against any loss incurred by such Underwriter as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which an Underwriter is able to purchase United
States dollars with the amount of judgment currency actually received by such
Underwriter. The foregoing indemnity shall constitute a separate and independent
obligation of the Company and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
17. EXCEPT AS MAY BE OTHERWISE PROVIDED IN A PRICING AGREEMENT, THIS
AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14
ANNEX I
FORM OF PRICING AGREEMENT
[Name(s) of (Co-)Representative(s)]
As Representative(s) of the several
Underwriters named in Schedule I hereto,
[Address]
[Date]
Ladies and Gentlemen:
Vodafone Group Public Limited Company, a public limited company
incorporated in England and Wales (the "Company"), proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement, a copy of
which is attached hereto as an Annex (the "Underwriting Agreement"), to issue
and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Prospectus (as defined in the Underwriting Agreement), and also
a representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives or to the Underwriters in the provisions of the Underwriting
Agreement so incorporated by reference shall be deemed to refer to you. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined. The Representatives designated to act on behalf of
the Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth in Schedule
II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you, is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us ______ counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the
AI-1
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request.
Very truly yours,
VODAFONE GROUP PUBLIC LIMITED COMPANY
By: ..................................
Name:
Title:
Accepted as of the date hereof:
[Insert name(s) of Representative(s)]
By: ......................................
Name:
Title:
On behalf of each of the Underwriters
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SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ----------
[Insert name(s) of Representative(s)] $
[Insert names of other Underwriters, if any]
----------------
Total.......................................... $
================
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SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest [, if any,] from to [and accrued
amortization [, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization
[, if any,] from to ]
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
TIME OF DELIVERY:
a.m. (New York City time), ,
INDENTURE:
Indenture dated February 10, 2000, between the Company and Citibank,
N.A., as Trustee
[FUNGIBILITY:
The Designated Securities will be fully fungible with, and form a single
issue and series with, the , 20__ issuance of $ in principal
amount of % Notes due 20__]
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
AI-4
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 20__]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before ,
%, and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at
the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
[FURTHER ISSUANCES:
We may, at our option, at any time and without the consent of the then
existing noteholders issue additional notes in one or more transactions
subsequent to the date hereof with terms (other than the issuance date,
issue price and, possibly, the first interest payment date) identical to
the Designated Securities. These additional notes will be deemed to be
part of the same series as the Designated Securities and will provide the
holders of these additional notes the right to vote together with holders
of the Designated Securities.]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$ ] principal amount of Designated Securities
on in each of the years through at 100%
of their principal amount plus accrued interest [, together with
[cumulative] [noncumulative] redemptions at the option of the Company
to retire an additional [$ ]
AI-5
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest.]
[If Designated Securities are extendable debt securities, insert--
EXTENDABLE PROVISIONS:
Designated Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be %, and thereafter the
annual interest rate will be adjusted on , and to a rate not less
than % of the effective annual interest rate on U.S. Treasury
obligations with -year maturities as of the [insert date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are floating rate debt securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate for
-year [month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest
yield equivalent of the weekly average per annum market discount rate
for -month Treasury bills plus % of Interest Differential
(the excess, if any, of (i) the then current weekly average per annum
secondary market yield for -month certificates of deposit over (ii)
the then current interest yield equivalent of the weekly average per
annum market discount rate for -month Treasury bills); [from
and thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
ADDITIONAL CLOSING CONDITIONS:
Paragraph 7(h) of the Underwriting Agreement should be modified in the
event that the Securities are denominated in, indexed to, or principal or
interest are paid in, a currency other than the U.S. dollar, more than one
currency or in a composite currency. The country or countries issuing such
currency should be added to the banking moratorium and hostilities clauses
and the following additional clause should be added to the paragraph (the
entire paragraph should be restated, as amended):
"; ( ) the imposition of the proposal of exchange controls by any
governmental authority in [insert the country or countries issuing such
currency, currencies or composite currency]".
If the Securities are to be listed on any securities exchange, insert the
following:
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"( ) The Securities shall have been admitted to listing on the [name
of relevant securities exchange]."
ADDITIONAL OPINIONS:
If the Securities are denominated in and pay interest in a currency other
than U.S. dollars, U.S. counsel for the Company and local counsel for the
Company shall give the following opinion:
"( ) All interest on the Securities may, under the current laws and
regulations of [insert jurisdiction], be paid in [insert currency] that may
be converted into foreign currency that may be freely transferred out of
[insert jurisdiction], and all interest and other distributions on the
Securities will not be subject to withholding or other taxes under the laws
and regulations of [insert jurisdiction] and are otherwise free and clear
of any other tax, withholding or deduction in [insert jurisdiction] and
without the necessity of obtaining any Governmental Authorization in
[insert jurisdiction]."
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS:
- Selling Restrictions
- Agreement regarding time of delivery if settlement is other than T+3]
AI-7
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) audited by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been [SEPARATELY] furnished to the representative or representatives of
the Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives [AND ARE ATTACHED HERETO];
[(iii)They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's interim
report on Form 6-K incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [HAVE BEEN
SEPARATELY FURNISHED TO THE REPRESENTATIVES][ARE ATTACHED HERETO]; and
on the basis of specified procedures including inquiries of officials
of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the [ACT AND THE EXCHANGE] Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the [ACT AND THE
EXCHANGE] Act and the related published rules and regulations;]
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 3 of the
Company's Annual Report on Form 20-F for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 20-F for such fiscal years;
AII - 1
(v) They have compared the information in the Prospectus under
selected captions (if any) with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in such
letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 3 and 6 of Form 20-F and of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in an interim report on
Form 6-K incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus or included in an interim report on Form 6-K
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 20-F for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
20-F for the most recent fiscal year;
[(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have
AII - 2
not been properly applied to the historical amounts in the
compilation of those statements;]
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except
in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net
income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by
the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
AII - 3
SCHEDULE 7(c)(i)
FORM OF OPINION OF U.S. COUNSEL
IN CONNECTION WITH SECTION 7(c)
[Date]
[To Underwriters]
Ladies and Gentlemen:
In connection with the issuance by Vodafone Group Plc, a public limited
company organized under the laws of England and Wales (the "Company"), of U.S.$
aggregate principal amount of the Company's % Notes due 20__ (the
"Securities"), pursuant to the Pricing Agreement (the "Pricing Agreement"),
dated (which incorporates by reference the provisions of the
Underwriting Agreement attached thereto (the "Underwriting Agreement")), between
the Company and you as the underwriters, issued pursuant to the Indenture, dated
as of February 10, 2000 (the "Indenture"), between the Company and Citibank,
N.A., as Trustee (the "Trustee"), we, as United States counsel for the Company,
have examined such corporate records, certificates and other documents, and such
questions of law, as we have considered
necessary or appropriate for the purposes of this opinion. Upon the basis of
such examination, it is our opinion that:
(1) Assuming the Indenture has been duly authorized, executed and
delivered by the Company insofar as the laws of England and Wales are
concerned, the Indenture has been duly executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act of 1939 and
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles, provided, however, that we express no
opinion as to the provisions relating to events of default under Sections
501(5), 501(6) and 501(7) of the Indenture, which are governed by English
law.
(2) Assuming the Securities have been duly authorized, executed,
authenticated, issued and delivered by the Company insofar as the laws of
England and Wales are concerned, they have been duly executed,
authenticated, issued and delivered by the Company and constitute valid and
legally binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles, provided,
however, that we express no opinion as to the provisions relating to events
of default under Sections 501(5), 501(6) and 501(7) of the Indenture, which
are governed by English law.
(3) Assuming the Pricing Agreement has been duly authorized, executed
and delivered by the Company insofar as the laws of England and Wales are
concerned, it has been duly executed and delivered by the Company.
(4) The issuance of the Securities in accordance with the Indenture
and the sale of the Securities by the Company to you pursuant to the
Pricing Agreement does not, and the performance by the Company of its
obligations under the Indenture, the Pricing Agreement and the Securities
will not, violate any Federal law of the United States or any law of the
State of New York applicable to the Company; provided, however, that, for
the purposes of this paragraph (4), we express no opinion with respect to
Federal or state
securities laws, other antifraud-laws and fraudulent transfer laws, and the
Employment Retirement Income Security Act of 1974 and related laws;
provided further that, insofar as the performance by the Company of its
obligations under the Indenture, the Pricing Agreement and the Securities
is concerned, we express no opinion as to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights.
(5) Assuming the validity of such action under the laws of England and
Wales, under the laws of the State of New York relating to submission to
personal jurisdiction, the Company has, pursuant to Section 14 of the
Underwriting Agreement and Section 115 of the Indenture, validly and
irrevocably submitted to the personal jurisdiction of any Federal or state
court in the Borough of Manhattan, The City of New York, New York, in any
suit or proceeding arising out of or relating to the Pricing Agreement or
the transactions contemplated thereby, has validly and irrevocably waived,
to the fullest extent it may effectively do so, any objection to the venue
of a proceeding in any such court, and has
validly and irrevocably appointed CT Corporation System in New York as its
authorized agent for the purposes described in Section 14 of the
Underwriting Agreement and Section 115 of the Indenture, and service of
process effected on such agent in the manner set forth in Section 14 of the
Underwriting Agreement or Section 115 of the Indenture will be effective to
confer valid personal jurisdiction over the Company in any such action
subject, in each case, to bankruptcy, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(6) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of
the United States and the laws of the State of New York for the issuance,
sale and delivery of the Securities by the Company to you have been
obtained or made, provided that we express no opinion as to state
securities or Blue Sky laws.
(7) The Company is not an "investment company" or a company
"controlled" by an "investment company" required to
be registered under the United States Investment Company Act of 1940.
In connection with our opinion set forth in paragraph (5) above, we assume
that any such action will be properly brought in a court having jurisdiction
over the subject matter, and we are expressing no opinion with respect to the
subject matter jurisdiction of any such court. Also, we are expressing no
opinion as to whether or under what circumstances such a court might decline to
accept jurisdiction over such action on the ground that New York is an
inconvenient forum.
The foregoing opinion is limited to the Federal laws of the United States
and the laws of the State of New York, and we are expressing no opinion as to
the effect of the laws of any other jurisdiction. In rendering the foregoing
opinion we have, with your approval, assumed that the Company is a public
limited company incorporated under the laws of England and Wales. We note that
as to all matters of English law, you have received the opinion, dated the date
hereof, of , English counsel to the Company, delivered to you
pursuant to Section 7(d) of the Underwriting Agreement and the opinion of ,
Group General
Counsel and Company Secretary of the Company, delivered to you pursuant to
Section 7(e) of the Underwriting Agreement.
Also, with your approval, we have relied as to certain matters upon
information obtained from public officials, officers of the Company and other
sources believed by us to be responsible, and we have assumed that the Indenture
has been duly authorized, executed and delivered by the Trustee, that the
Securities conform to the specimens thereof examined by us, that the Trustee's
certificates of authentication of the Securities have been manually signed by
one of the Trustee's duly authorized officers or duly authorized
attorneys-in-fact and that the signatures on all documents examined by us are
genuine, assumptions which we have not independently verified.
Very truly yours,
SCHEDULE 7(c)(ii)
FORM OF LETTER FROM U.S. COUNSEL
IN CONNECTION WITH SECTION 7(c)
[Date]
[To Underwriters]
Ladies and Gentlemen:
This is with reference to the registration under the
Securities Act of 1933 (the "Act") and offering of U.S.$ aggregate principal
amount of % Notes due 20__ (the "Securities") of Vodafone Group Plc, a public
limited company organized under the laws of England and Wales (the "Company").
The Registration Statement was filed on Form F-3 in accordance with procedures
of the Securities and Exchange Commission (the "Commission") permitting a
delayed or continuous offering of securities pursuant thereto and, if
appropriate, a post-effective amendment or prospectus supplement that provides
information relating to the terms of the securities and the manner of their
distribution. The Securities have been offered by the prospectus dated December
5, 2003 (the "Basic Prospectus"), as supplemented by the Prospectus Supplement
dated (the "Prospectus
Supplement"), which updates or supplements certain information contained in the
Basic Prospectus. The Basic Prospectus as so supplemented does not necessarily
contain a current description of the Company's business and affairs since,
pursuant to Form F-3, it incorporates by reference certain documents filed with
the Commission which contain information as of various dates.
As United States counsel for the Company, we reviewed the Registration
Statement, the Basic Prospectus and the Prospectus Supplement and participated
in discussions with your representatives and those of the Company, its
independent accountants and its English counsel and those of your United States
counsel and advised the Company as to the requirements of the Act and the
applicable rules and regulations thereunder. Between the date of the Prospectus
Supplement and the time of the delivery of this letter, we participated in
further discussions with your representatives and those of the Company, its
independent accountants and its English counsel and those of your United States
counsel during which the contents of certain portions of the Basic Prospectus
and Prospectus Supplement and certain related matters were discussed, and
reviewed certificates of officers of the Company, legal opinions addressed to
you and a
letter addressed to you from the Company's independent accountants.
On the basis of the information that we gained in the course of the
performance of the services referred to above, considered in the light of our
understanding of the applicable law (including the requirements of Form F-3 and
the character of the prospectus contemplated thereby) and the experience we have
gained through our practice under the Act, we confirm to you that, in our
opinion, each part of the Registration Statement, when such part became
effective, and the Basic Prospectus, as supplemented by the Prospectus
Supplement, as of the date of the Prospectus Supplement, appeared on their face
to be appropriately responsive, in all material respects relevant to the
offering of the Securities, to the requirements of the Act, the Trust Indenture
Act of 1939 and the applicable rules and regulations of the Commission
thereunder. Further, nothing that came to our attention in the course of such
review has caused us to believe that, insofar as relevant to the offering of the
Securities, any part of the Registration Statement, when such part became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein
or necessary to make the statements therein not misleading or that the Basic
Prospectus, as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement, 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. Also, nothing that has come to our attention in the course of the
procedures described in the second sentence of the preceding paragraph has
caused us to believe that the Basic Prospectus, as supplemented by the
Prospectus Supplement, as of the date and time of delivery of this letter,
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.
The limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process are
such, however, that we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, any Post-Effective Amendment thereto,
the Basic Prospectus or the Prospectus Supplement except for those made under
the captions "Description of Debt Securities We May Offer" and "Plan of
Distribution" in the Basic Prospectus and "Description of Notes" and
"Underwriting" in the Prospectus Supplement, insofar as they relate to
provisions of documents therein described and "Taxation - United States Federal
Income Taxation" in the Basic Prospectus [and "Taxation" in the Prospectus
Supplement] insofar as they relate to provisions of U.S. Federal tax law therein
described. Also, we do not express any opinion or belief as to the financial
statements or other financial or statistical data contained in the Registration
Statement, any Post-Effective Amendment thereto, the Basic Prospectus or the
Prospectus Supplement, or as to the statement of the eligibility and
qualification of the Trustee under the Indenture under which the Securities are
being issued or as to any statement made by English counsel with respect to
English law.
This letter is furnished by us as United States counsel for the Company to
you as Underwriters of the Securities and is solely for your benefit.
Very truly yours,
SCHEDULE 7(d)
FORM OF OPINION OF ENGLISH COUNSEL
IN CONNECTION WITH SECTION 7(d)
Debt Legal Opinion
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone (00-00) 0000 0000
Facsimile (00-00) 0000 0000
Group 4 Fax (00-00) 0000 0000
DX Box Number 10 CDE
[Name and Address of Underwriters]
([together] the "UNDERWRITER[S])"
and
Citibank, N.A. as Trustee (the "TRUSTEE")
14th Floor
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Date]
Dear Sirs
VODAFONE GROUP PLC (THE "COMPANY")
U.S.$ [-] [-%]/[FLOATING RATE] NOTES DUE 20[-] (THE "NOTES")
1 We have acted as English legal advisers to the Company in connection with
the issue of the Notes and we have taken instructions solely from the
Company.
2 This opinion is limited to English law as applied by the English courts and
is given on the basis that it will be governed by and construed in
accordance with English law. In particular we express no opinion on matters
of federal law of the United States or the laws of any State of the United
States or the laws of any other jurisdiction.
3 For the purpose of this opinion we have examined only the documents listed
and, where appropriate, defined in the Schedule to this letter. We have
assumed that the Pricing Agreement, the Securities Depositary Agreement and
the Indenture (together, the "RELEVANT AGREEMENTS") are within the capacity
and powers of, and have been validly authorised by and are binding upon,
each of the respective parties thereto (other than the Company) and that
those documents have been or will be validly executed and delivered by the
relevant parties (other than the Company), that each of the Relevant
Agreements and the Notes is valid and binding on each party (including the
Company) under the law to which it is expressed to be subject where that is
not English law and that words and phrases used in those documents have the
same meaning and effect as they would if those documents were governed by
English law.
We have further assumed that:
3.1 all documents furnished to us as copies are genuine, authentic and complete
and conform to the original documents of which they are copies and the
genuineness of all signatures thereon or on the original thereof
A list of the names of the partners and their professional qualifications is
open to inspection at the above office. The partners are solicitors, registered
foreign lawyers or registered European lawyers. The firm is regulated by the Law
Society.
Please refer to xxx.xxxxxxxxxx.xxx/xxxxxxxxxx for important information on the
regulatory position of the firm.
3.2 the Minutes and other corporate documents are a true and complete record of
the proceedings described therein and the resolutions set out in the
Minutes remain in full force and effect without modification
3.3 all applicable provisions of the Financial Services and Markets Xxx 0000
and any secondary legislation made under it with respect to anything done
by the Underwriter[s] or the Depositary in relation to the Notes in, from
or otherwise involving the United Kingdom (including Sections 19 (carrying
on a regulated activity) and 21 (financial promotion)) and (where
applicable) the requirements of any regulatory authority in the United
Kingdom to whose supervision each of them is subject will have been
complied with and
3.4 each of the Relevant Agreements and the Notes have been[, or as the case
may be, will be] executed by the person(s) duly authorised to do so in the
Minutes.
4 In our opinion:
4.1 The Company is a public limited company incorporated in England and Wales
under the Companies Xxx 0000.
4.2 The results of a search at Companies House in London on [Closing Date]
revealed no order or resolution for the winding-up of the Company and no
appointment of a liquidator, receiver, administrative receiver or
administrator. It should be noted that such searches are not capable of
revealing definitively whether or not a petition for winding-up or
administration has been presented in a County Court or District Registry or
in the High Court of Justice, and that notice of a winding-up or
administration order made, or winding-up resolution passed, or the
appointment of a liquidator, administrative receiver or administrator, may
not be filed at Companies House immediately.
4.3 The Company has the corporate power to enter into and to perform its
obligations under the Relevant Agreements and to issue and perform its
obligations under the Notes.
4.4 The Company has taken all necessary corporate action to authorise the
execution, delivery and performance of the Notes and the Company has
validly executed and delivered the Notes. There is no reason insofar as
English law is concerned why the obligations assumed by the Company under
the Notes are not valid and binding obligations of the Company.
4.5 The Company has taken all necessary corporate action to authorise the
execution and delivery of the Securities Depositary Agreement and the
deposit of the Notes by the Company in accordance with the Securities
Depositary Agreement and the Company has validly executed and delivered the
Securities Depositary Agreement. There is no reason insofar as English law
is concerned why the obligations assumed by the Company under the
Securities Depositary Agreement are not valid and binding obligations of
the Company.
4.6 The Company has taken all necessary corporate action to authorise the
execution and delivery of the Pricing Agreement and the Indenture and the
Company has validly executed and delivered each such agreement. There is no
reason insofar as English law is concerned why the obligations assumed by
the Company under each such agreement are not valid and binding upon the
Company.
4.7 Sections 501(5), 501(6) and 501(7) of the Indenture, which are governed by
English law, constitute valid, binding and enforceable terms.
Page 2 of 6
4.8 The issue by the Company of the Notes and compliance by the Company with
the Relevant Agreements and the consummation of the transactions therein
contemplated will not conflict with or result in any violation or breach by
the Company of any provision of English law or of the Memorandum and
Articles of Association of the Company.
4.9 The submission to jurisdiction and appointment of an agent for the service
of process contained in the Relevant Agreements are valid under English law
as currently in force and under current practice of the English courts at
the date hereof; and any final and conclusive judgment of any state or
federal court in the City and State of New York in respect of any legal
suit, action or proceeding brought to enforce any liability of the Company
under any Relevant Agreement in any such action or proceeding against the
Company (a "UNITED STATES JUDGMENT") would be capable of being enforced by
fresh proceedings in an English court against the Company without the
necessity for a re-trial or re-examination of the matters thereby
adjudicated
4.9.1 unless:
(i) the English court is not satisfied, in accordance with its
own conflict of law principles, that the foreign court had
jurisdiction over the Company (the English court will
normally be so satisfied if the Company has freely submitted
to the jurisdiction of the foreign court)
(ii) the judgment is not for a specific sum of money
(iii) the judgment was not final and conclusive
(iv) the judgment was obtained by fraud or misrepresentation
(v) enforcement of the judgment would be contrary to English
public policy or if the proceedings in which the judgment was
obtained were contrary to natural justice or
(vi) the proceedings were of a revenue or penal nature; and
4.9.2 provided that:
(i) execution of an English judgment based on a judgment of a New
York Court may be stayed if the New York Court's judgment is
the subject of a pending appeal or the judgment debtor is
entitled to and intends to appeal against the judgment
(ii) in any proceedings to enforce in an English court a foreign
judgment (including a United States Judgment) it is open to
the defendant to raise any counterclaim that he could have
brought if the action had originally been brought in England
unless the subject of the counterclaim was in issue and
decided in the foreign proceedings and
(iii) (a) by virtue of the Protection of Trading Xxxxxxxxx Xxx
0000, a judgment for multiple damages will not be enforceable
and (b) under that Act, United Kingdom citizens and
corporations and other persons carrying on business in the
United Kingdom may recover sums paid under foreign judgments
for multiple damages in excess of the compensation for the
loss of the person in whose favour the judgment was given.
4.10 There are no consents, approvals, authorisations or orders required by the
Company from any governmental or other regulatory agencies in Great Britain
in connection with the issue and offering of the Notes and the performance
by the Company of its obligations under the Relevant
Page 3 of 6
Agreements and under the terms of the Notes (including effecting payments
of principal and interest on the Notes) provided that offers and sales of
Notes having a maturity of one year or greater in the United Kingdom by the
Company or the Underwriters (or any person acting on their behalf) are made
only to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (whether as principal or
agent) for the purposes of their businesses or in circumstances which do
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995.
4.11 Except as disclosed in the Prospectus and subject to the qualifications and
limitations set out therein, no United Kingdom taxes, levies or imposts
are, as a matter of English law, required to be deducted or withheld from
any payment of principal or interest by the Company to the Depositary (as
holder of the Notes) in respect of the Notes.
4.12 Except as disclosed in the Prospectus, no United Kingdom stamp duty is
payable in connection with the issue, sale and delivery of the Notes or the
deposit of the Notes under the Securities Depositary Agreement.
4.13 Each of (i) a holder in respect of Notes, if and when so entitled, and (ii)
the Underwriter[s] in respect of the Pricing Agreement is entitled to xxx
as claimant in the English courts for the enforcement of its respective
rights against the Company. The Company is not entitled to any special
immunity from proceedings in England with respect to the Relevant
Agreements or the Notes. The Underwriter[s] could commence proceedings in
an English court of competent jurisdiction against the Company in
connection with the Pricing Agreement and the Trustee could commence
proceedings in an English court of competent jurisdiction against the
Company in connection with the Indenture and such English court would
accept jurisdiction in respect of any such proceedings unless the Company
objected to the bringing of those proceedings on the grounds of forum non
conveniens and the court upheld that objection. The English courts will
recognise and give effect to the choice of the laws of the State of New
York as the governing law of the Notes and the Relevant Agreements (except
for Sections 501(5), 501(6) and 501(7) of the Indenture which are expressed
to be governed by English law). Accordingly, under the principles of
English conflicts of laws the existence and validity of the contract, and
any term thereof (except as provided in the preceding sentence), between
the parties is a matter of New York law.
4.14 The statement in paragraph (4) under "Enforceability of Civil Liabilities"
contained in the Prospectus relating to enforceability of judgments,
insofar as such statement describes legal matters, documents or proceedings
under the laws of England, is a statement which is accurate in all material
respects; and the statements contained in the Prospectus Supplement under
the caption "Taxation", insofar as such statements describe matters of
United Kingdom taxation law and matters relating to the U.S.-U.K. Estate
Tax Treaty are accurate in all material respects.
5 The term "ENFORCEABLE" as used above in paragraph 4.7 means that the
obligations assumed by the relevant party are of a type which the English
courts enforce. It does not mean that those obligations will necessarily be
enforced in all circumstances in accordance with their terms. In
particular:
5.1 enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganisation and other laws of general application relating to or
affecting the rights of creditors;
5.2 enforcement may be limited by general principles of equity - for example,
equitable remedies may not be available where damages are considered to be
an adequate remedy;
Page 4 of 6
5.3 claims may become barred under the Limitation Xxx 0000 or may be or become
subject to set-off or counterclaim;
5.4 where obligations are to be performed in a jurisdiction outside England,
they may not be enforceable in England to the extent that performance would
be illegal under the laws of that jurisdiction;
5.5 a provision in an agreement may be unenforceable if it amounts to a penalty
under English law; and
5.6 an English court may refuse to give effect to any provision of an agreement
which amounts to an indemnity in respect of the costs of unsuccessful
litigation brought before an English court or where the court itself has
made an order for costs.
6 This opinion is subject to the following:
6.1 Any certificate, determination, notification, opinion, minute or the like
might be held by an English court not to be conclusive if it could be shown
to have an unreasonable or arbitrary basis or in the event of manifest
error despite any provision in the relevant agreements to the contrary.
6.2 Save to the limited extent specified in paragraph 4.14, we have not been
responsible for investigating or verifying the accuracy of the facts,
including statements of foreign law, or the reasonableness of any
statements of opinion contained in the Prospectus or that no material facts
have been omitted from it.
6.3 So far as they relate to United Kingdom stamp duties, any undertakings or
indemnities given by the Company may be void under section 117 of the Stamp
Xxx 0000.
6.4 We express no opinion as to the compliance or otherwise with the financial
limitations on borrowings or covenants by the Company contained in the
Articles of Association of the Company.
7 This opinion is given on the basis that, since the date of, or as the case
may be, date of certification of, there has been, no amendment to, or
termination or replacement of, the documents referred to in the Schedule to
this opinion and on the basis of English law in force as at the date of
this opinion. This opinion is also given on the basis that we undertake no
responsibility to notify you of any change in English law after the date of
this opinion.
8 This opinion is addressed to you solely for your benefit and solely in
connection with the issue of the Notes. It is not to be transmitted to
anyone else nor is it to be relied upon by anyone else or for any other
purpose or quoted or referred to in any public document or filed with
anyone without our express consent.
Yours faithfully
Linklaters
Page 5 of 6
SCHEDULE
1 Pricing Agreement dated [-] between the Company and the Underwriter[s] (the
"PRICING AGREEMENT"), incorporating the terms of the Underwriting Agreement
set out in Annex 1 to the Pricing Agreement.
2 Securities Depositary Agreement (the "SECURITIES DEPOSITARY AGREEMENT")
dated 10 February 2000 between, inter alios, the Company and Citibank, N.A.
(the "DEPOSITARY").
3 Indenture (the "INDENTURE") dated 10 February 2000 between the Company and
the Trustee.
4 A certified copy of the Memorandum and Articles of Association of the
Company.
5 A certified copy of an extract of the Minutes of a Meeting of the Board of
Directors of the Company held on [-] and a certified copy of an extract of
the Minutes of a Meeting of a Committee of the Board of Directors of the
Company held on [-] (together, the "MINUTES").
6 Prospectus dated [-] 2003 and a Prospectus Supplement dated [-] (the
"PROSPECTUS SUPPLEMENT") (together, the "PROSPECTUS").
Page 6 of 6
SCHEDULE 7(e)
FORM OF OPINION OF VODAFONE GENERAL COUNSEL AND SECRETARY
IN CONNECTION WITH SECTION 7(e)
[Date]
[To Underwriters]
Dear Sirs:
I am the Group General Counsel and Company Secretary of Vodafone Group Plc,
a company organised under the laws of England and Wales (the "Issuer"), and have
provided legal advice and assistance to the Issuer in connection with the issue
and sale today by the Issuer through you as Underwriters (the "Underwriters"),
pursuant to the Pricing Agreement, dated (the "Pricing Agreement"), by and among
the Issuer and you, of U.S.$ in aggregate principal amount of its %
Notes due 20__ (the "Securities") issued pursuant to the Indenture, dated as of
10 February 2000 (the "Indenture"), between the Issuer and Citibank, N.A., as
Trustee (the "Trustee"), offered pursuant to the Prospectus, dated 5 December
2003, as amended and supplemented by the Prospectus Supplement, dated
(the "Prospectus").
I have examined such corporate records, certificates and other documents as
I have considered necessary or appropriate for the purposes of this opinion. In
such examination, the genuineness of all signatures of all parties (other than
the Issuer) on all documents and the conformity with original documents of all
copies submitted to me has been assumed. I have further assumed that such
documents are within the capacity and powers of, and have been duly
authorised, executed and delivered by, and are valid and binding upon, each
party other than the Issuer under New York law.
In giving this opinion, I have made no investigation of laws of any country
other than the laws of England and Wales and my opinion is confined to matters
of English law as applied by the English courts. My opinion is given on the
understanding that it will be governed by and construed in accordance with
English law.
On the basis of the foregoing, having regard to such legal considerations
as I deem relevant, I am of the opinion that, insofar as the present laws of
England and Wales are concerned:
(1) The Issuer is duly incorporated as a public limited company under the laws
of England and Wales and has the power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus;
(2) The Issuer has an authorised ordinary share capital of ordinary shares
of U.S.$0.10 each, and all of the issued shares of capital stock of the
Issuer have been duly and validly authorised and issued and are fully paid
and non-assessable;
(3) To the best of my knowledge and other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending to which the Issuer
or any of its subsidiaries is a party or of which any property of the
Issuer or any of its subsidiaries is the subject which, if determined
adversely to the Issuer or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect on the current consolidated
financial position or results of operations of the Issuer and its
subsidiaries taken as a whole; and, to the best of my knowledge, no such
proceedings are threatened or contemplated;
(4) The Issuer is not in violation of its Memorandum and Articles of
Association or other constituent documents and, to the best of my
knowledge, neither the Issuer nor any of its subsidiaries is in material
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it is bound or to which any
of its material properties or assets is subject, in each case except for
conflicts, breaches, defaults or violations which would not affect the
validity or enforceability of the Securities or have a material effect on
the consolidated financial condition or results of operations of the Issuer
and its subsidiaries, taken as a whole;
(5) The issue and sale of the Securities and the compliance by the Issuer with
all of the provisions of the Securities, the Indenture and the Pricing
Agreement, and the consummation of the transactions therein contemplated
will not, to the best of my knowledge, conflict with or result in a
material breach or violation of any of the terms or provisions of, or
constitute a material default under, any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Issuer is a party or by which the Issuer is bound or to which any of the
material property or assets of the Issuer is subject; and
(6) The Issuer and each of its material subsidiaries have all material
telecommunications licenses necessary to conduct their businesses as
described in the Prospectus.
Yours faithfully,
