EXECUTION COPY
DIAGEO CAPITAL PLC
DIAGEO FINANCE B.V.
DIAGEO INVESTMENT CORPORATION
Up to U.S.$2,000,000,000
MEDIUM-TERM NOTES
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
DIAGEO PLC
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
December 8, 2003
Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx")
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Diageo Capital plc, a public limited company incorporated under the
laws of
Scotland (the "Scottish Issuer"), Diageo Finance B.V., a private company with
limited liability (besloten vennootschap met beperke aansprakelijkheid)
incorporated under Dutch law with its corporate seat at Amsterdam, The
Netherlands (the "Dutch Issuer"), Diageo Investment Corporation, a Delaware
corporation (the "U.S. Issuer") (each an "Issuer", and together, the "Issuers"),
propose severally to issue and sell from time to time their Medium-Term Notes,
Due 18 Months to 30 Years from Date of Issue (the "Securities"), at an aggregate
initial offering price up to U.S.$2,000,000,000 (or the equivalent thereof at
the time of original issuance in one or more foreign currencies or composite
currencies), and each of them agrees with each of you (individually, an "Agent",
and collectively, the "Agents") as set forth in this Agreement. With respect to
Securities issued by the U.S. Issuer, the Securities are to be issued pursuant
to the provisions of an indenture, dated as of June 1, 1999 (the "U.S.
Indenture"), among the U.S. Issuer, Diageo plc, as Guarantor (the "Guarantor"),
and Citibank, N.A., as Trustee (the "Trustee"). With respect to Securities
issued by the Scottish Issuer, the Securities are to be issued pursuant to the
provisions of an indenture, dated as of August 3, 1998 (the "Scottish
Indenture"), among the Scottish Issuer, the Guarantor and the Trustee. With
respect to the Securities issued by the Dutch Issuer, the Securities are to be
issued pursuant to the provisions of an indenture, dated as of December 8, 2003,
among the Dutch Issuer, the Guarantor and the Trustee (the "Dutch Indenture",
and together with the U.S. Indenture and the Scottish Indenture, the
"Indentures"). The Securities are to be unconditionally guaranteed (the
"Guarantees") as to payment of principal and interest by the Guarantor. Because
the Securities are limited in aggregate initial offering price to
U.S.$2,000,000,000 (or the equivalent thereof at the time of original issuance
in one or more foreign currencies or composite currencies), an issuance of the
Securities by one of the Issuers will correspondingly reduce the amount of
Securities available to be issued by the other Issuers.
Subject to the terms and conditions stated herein and to the
reservation by each of the Issuers and the Guarantor of the right to sell
Securities directly on their own behalf, each of the Issuers hereby (i) appoints
each Agent as an agent of such Issuer for the purpose of soliciting and
receiving offers to purchase Securities from such Issuer pursuant to Section
II(a) hereof and (ii) agrees that, except as otherwise contemplated herein,
whenever it determines to sell Securities directly to any Agent as principal, it
will enter into a separate agreement (each a "Terms Agreement"), which may be
oral and confirmed in writing or which may be substantially in the form of Annex
I hereto, relating to such sale in accordance with Section II(b) hereof.
The Issuers and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form F-3
(Registration No. 333-110804) including a prospectus, relating to the Securities
to be issued severally from time to time by the Issuers. The applicable Issuer
also has filed with, or proposes to file with, the Commission pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Securities Act"), a
Prospectus Supplement specifically relating to the Securities (the "Prospectus
Supplement"). Upon request, but not without the agreement of each applicable
Agent, the applicable Issuer may also file a Rule 462(b) Registration Statement
in accordance with Rule 462(b) under the Securities Act. The registration
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statement as amended to the Commencement Date (as hereinafter defined) and any
Rule 462(b) Registration Statement that becomes effective thereafter is
hereinafter referred to as the "Registration Statement" and the related
prospectus, as amended, covering the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the Prospectus Supplement
specifically relating to the Securities in the form first used to confirm sales
of the Securities is hereinafter referred to as the "Prospectus". Any reference
in this Agreement to the Registration Statement, the Basic Prospectus, any
preliminary form of Prospectus (including the Basic Prospectus, a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424 or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 6 of Form F-3 under the Securities Act which
were filed under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (collectively, the "Exchange Act")
on or before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement, or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be, which are deemed
to be incorporated by reference therein. Any reference to "Rule 462(b)
Registration Statement" shall be deemed to refer to a registration statement and
any amendments thereto filed pursuant to Rule 462(b) relating to the offering
covered by the initial Registration Statement. The obligations of the Issuers
under this Agreement shall be several and not joint.
I.
The applicable Issuer (as to itself) and the Guarantor (as to each Issuer and to
itself) represents and warrants to each of the Agents that:
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did
not contain, and, as amended or supplemented, if applicable, did not or will
not, as the case may be, contain at the time of such amendment or supplement,
any 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, (ii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply, as the case may be, in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, (iii) the Prospectus does not or will
not, as the case may be, as of the date of the Prospectus and as at the Closing
Date, contain and, as amended or supplemented, if applicable, at the time of
such amendment or supplement, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
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make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties set
forth in this paragraph I(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus, as amended or supplemented, if
applicable, based upon information concerning any Agent furnished to the Issuers
or the Guarantor in writing by such Agent expressly for use therein or (B) to
the Statement of Eligibility and Qualification of the Trustee on Form T-1 and
(iv) each document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act.
(c) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder.
(d) Each Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and has been duly authorized, executed and
delivered by the applicable Issuer and duly authorized, executed and delivered
by the Guarantor and is a valid and legally binding agreement of such Issuer and
the Guarantor, 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.
(e) There has not been any material adverse identifiable change,
or any development involving a prospective material adverse identifiable change
in the condition, financial or otherwise, or in the earnings, business or
operations of the Guarantor and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(f) The financial statements, and the related notes thereto,
included in the Registration Statement and the Prospectus present fairly the
consolidated financial position of the Guarantor, and its consolidated
subsidiaries as of the dates indicated and the results of its operations and the
changes in its consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; the supporting schedules included in
the Registration Statement present fairly the information required to be stated
therein; and, if applicable, the pro forma financial information, and the
related notes thereto, included in the Registration Statement and the Prospectus
has been prepared in accordance with the applicable requirements of the
Securities Act and is based upon good faith estimates and assumptions believed
by the Guarantor to be reasonable.
(g) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under, this Agreement, any
applicable Terms Agreement, the Guarantees and the Indentures will not
contravene any provision of the Memorandum and Articles of Association of the
Guarantor or any agreement or other instrument binding upon the Guarantor or any
of its subsidiaries, in each case, that is material to the Guarantor and its
subsidiaries, taken as a whole, or any material judgment, order or
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decree of any governmental body, agency or court having jurisdiction over the
Guarantor or any such subsidiary.
II.
(a) On the basis of the representations and warranties of each of
the Issuers and the Guarantor, and subject to the terms and conditions herein
set forth, each of the Agents hereby severally and not jointly agrees, as agent
of each of the Issuers and the Guarantor, to use its reasonable best efforts to
solicit and receive offers to purchase the Securities from the Issuers upon the
terms and conditions set forth in the Prospectus as amended or supplemented from
time to time. Each of the Issuers and the Guarantor reserve the right (i) to
accept offers to purchase Securities, to solicit offers to purchase Securities
and to sell Securities to or through one or more agents other than the Agents or
to agree with another agent that such agent shall become an Agent hereunder, in
each case, without obtaining the consent of the Agents, provided, however, that
the Guarantor will notify the Agents promptly following the issuance and sale of
any Security issued and sold in respect of any offer so accepted and (ii) to
sell, and may solicit and accept offers to purchase, Securities directly on
their own behalf, and, in the case of any such sale not resulting from a
solicitation made by any Agent, no commission will be payable with respect to
such sale.
If any other agent is to be named as an Agent under this Agreement,
such agent and the Issuers and the Guarantor will execute an agreement
substantially in the form of Annex III hereto, whereupon such agent shall become
a party to this Agreement and shall be subject to the same obligations and
receive the same benefits as an Agent would be subject to or would receive
hereunder. If any other agent is to be appointed as Agent by the applicable
Issuer and the Guarantor solely in connection with a particular issue of
Securities, such agent and the applicable Issuer and the Guarantor will execute
an agreement substantially in the form of Annex IV hereto.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedures, attached hereto
as Annex II, as they may be amended from time to time by written agreement
between the Agents, the Issuers and the Guarantor (the "Procedures"). The
provisions of the Procedures shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
each of the Issuers and the Guarantor agree to perform the respective duties and
obligations specifically provided to be performed by each of them in the
Procedures. The Issuers and the Guarantor will furnish to the Trustee a copy of
the Procedures as from time to time in effect.
Each of the Issuers as to itself reserves the right, in its sole
discretion, to instruct the Agents to suspend at any time, for any period of
time or permanently, the solicitation of offers to purchase the Securities from
such Issuer. As soon as practicable after receipt of notice from any of the
Issuers, the Agents will suspend solicitation of offers to purchase Securities
from such Issuer until such time as such Issuer has advised the
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Agents that such solicitation may be resumed. While such solicitation is
suspended, such Issuer shall not be required to deliver any certificates,
opinions or letters in accordance with Sections V(i), V(j) and V(k); provided,
however, that if the Registration Statement or Prospectus is amended or
supplemented during the period of suspension (other than by an amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Securities or
for a change the Agents deem to be immaterial), no Agent shall be required to
resume soliciting offers to purchase Securities until such Issuer has delivered
such certificates, opinions and letters as such Agent may reasonably request.
Unless otherwise agreed by the applicable Issuer and the applicable
Agent at the time of any sale of a Security by such Issuer through such Agent,
each Issuer agrees to pay each Agent a commission (or grant an equivalent
discount) at the time of settlement of any sale of a Security by such Issuer as
a result of a solicitation made by such Agent, in an amount equal to the
following applicable percentage of the principal amount (or, in the case of zero
coupon or deep discount Securities, the following applicable percentage of the
aggregate offering price) of such Security sold:
COMMISSION
(PERCENTAGE OF
AGGREGATE AMOUNT
RANGE OF MATURITIES OF SECURITIES SOLD)
------------------- -------------------
From 18 months to less than 2 years......................... 0.200%
From 2 years to less than 3 years........................... 0.250%
From 3 years to less than 4 years........................... 0.350%
From 4 years to less than 5 years........................... 0.450%
From 5 years to less than 6 years........................... 0.500%
From 6 years to less than 7 years........................... 0.550%
From 7 years to less than 10 years.......................... 0.600%
From 10 years to less than 15 years......................... 0.625%
From 15 years to less than 20 years......................... 0.700%
From 20 years to and including 30 years..................... 0.750%
Each Agent shall communicate to the applicable Issuer, orally or in
writing, each offer to purchase Securities received by such Agent as agent that
in its judgment should be considered by such Issuer. Such Issuer shall have the
sole right to accept offers to purchase Securities and may reject any offer in
whole or in part. Each Agent shall have the right to reject any offer to
purchase Securities that it considers to be unacceptable, and any such rejection
shall not be deemed a breach of its agreements contained herein.
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(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the applicable
Issuer, the Guarantor and such Agent shall otherwise agree) a Terms Agreement
which will provide for the sale of such Securities to, and the purchase thereof
by, such Agent. A Terms Agreement may also specify certain provisions relating
to the reoffering of such Securities by such Agent. The commitment of any Agent
to purchase Securities as principal, whether pursuant to any Terms Agreement or
otherwise, shall be deemed to have been made on the basis of the representations
and warranties of the applicable Issuer and the Guarantor herein contained and
shall be subject to the terms and conditions herein set forth. Each Terms
Agreement shall specify the principal amount of Securities to be purchased by
any Agent pursuant thereto, the price to be paid to the applicable Issuer for
such Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the reoffering of the Securities
and the time and date and place of delivery of and payment for such Securities.
Such Terms Agreement shall also specify requirements, if any, for opinions of
counsel, accountants' letters and officers' certificates pursuant to Sections V
and VI hereof.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Procedures. For each such sale of Securities to an Agent as principal as to
which no other commission is agreed, the applicable Issuer agrees to pay such
Agent a commission (or grant an equivalent discount) as provided in Section
II(a) hereof and in accordance with the schedule set forth therein. Securities
may also be sold by any Agent to or through dealers who may resell to investors.
The Agents may pay all or part of their discount or commission to such dealers.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Procedures, is referred to herein as a "Time of Delivery".
(c) Each Issuer and the Guarantor acknowledge that the obligations
of the Agents under this Agreement are several and not joint.
(d) The documents required to be delivered pursuant to Section VI
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Xxxxxxxx & Xxxxxxxx XXX, 0 Xxx Xxxxxx Xxxx, Xxxxxx XX0X
0XX at 9:00 a.m., New York City time, on the date of this Agreement, which date
and time of such delivery may be postponed by agreement among the Agents, the
Issuers and the Guarantor but in no event shall be later than the day prior to
the date on which solicitation of offers to purchase Securities is commenced or
on which any Terms Agreement is executed (such time and date being referred to
herein as the "Commencement Date").
III.
Each Agent agrees, with respect to any Security denominated in a
currency other
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than U.S. dollars, as agent, directly or indirectly, not to solicit offers to
purchase, and as principal under any Terms Agreement or otherwise, directly or
indirectly, not to offer, sell or deliver, such Security except as permitted by
applicable law of the country issuing such currency.
IV.
(a) Each Agent severally represents and agrees that (i) it has not
offered or sold and, prior to the expiry of the period of six months from the
date of issue of the Securities, will not offer or sell any such Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995, (ii) it has complied and will comply with all
applicable provisions of the Financial Services and Markets Act 2000 (the
"FSMA") with respect to anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom and (iii) it has only
communicated or caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by it in connection with
the issue and sale of such Securities in circumstances in which Section 21(1) of
the FSMA does not apply to the applicable Issuer or the Guarantor.
(b) Other than as provided below, each Agent severally represents
and agrees that in relation to Securities issued by the Scottish Issuer, it will
only solicit sales of, and communicate to the Scottish Issuer offers to
purchase, Securities with (i) minimum denominations of $1,000 or more and (ii)
principal amount of $5,000,000 or more. If an Agent solicits sales of, and
communicates to the Scottish Issuer, Securities that do not meet the above
criteria, such Agent severally represents and agrees that the Securities will
otherwise meet the applicable requirements of The New York Stock Exchange, Inc.
necessary to list the Securities.
(c) Each Agent severally represents and agrees in relation to
Securities issued by the Dutch Issuer that such Securities may only be offered
and such offer may only be announced: (a) if those Securities each have a
denomination of at least EUR50,000 (or its foreign currency equivalent); or (b)
to persons who trade or invest in securities in the conduct of their profession
or trade (which includes banks, securities intermediaries (including dealers and
brokers), insurance companies, pension funds, other institutional investors and
commercial enterprises which as an ancillary activity regularly invest in
securities) ("professional investors"), provided that the offer, the applicable
Pricing Supplement and each announcement of the offer states that the offer is
exclusively made to those persons; or (c) to persons who are established,
domiciled or have their residence (collectively, "are resident") outside The
Netherlands, provided that (i) the offer, the applicable Pricing Supplement and
each announcement of the offer states that the offer is not and will not be made
to persons who are resident in The Netherlands, (ii) the offer and the
applicable Pricing Supplement and each announcement of the offer comply with
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the laws and regulations of any state where persons to whom the offer is made
are resident and (iii) a statement by the Dutch Issuer that those laws and
regulations are complied with is submitted to The Netherlands Authority for the
Financial Markets (Autoriteit Financiele Markten, the "AFM") before the offer is
made and is included in the applicable Pricing Supplement and each such
announcement; or (d) to a combination of: (i) persons who are professional
investors and (ii) persons who are resident outside The Netherlands; provided
that (A) the offer, the applicable Pricing Supplement and each announcement of
the offer states that the offer is and will only be made to persons who are
professional investors and to persons who are not resident in The Netherlands,
(B) the offer, the applicable Pricing Supplement and each announcement of the
offer comply with the laws and regulations of any state where persons to whom
the offer is made are resident and (C) a statement by the Dutch Issuer that
those laws and regulations are complied with is submitted to the AFM before the
offer is made and is included in the applicable Pricing Supplement and each such
announcement; or (e) otherwise in accordance with the 1995 Act on the
Supervision of the Securities Trade (Wet toezicht effectenverkeer 1995, the
"Dutch Securities Act"). In addition, bearer zero coupon Securities and other
Securities which qualify as savings certificates as defined in the Netherlands
Savings Certificates Act (Wet inzake spaarbewijzen) may only be transferred or
accepted through the mediation of either the Netherlands Issuer or a Member of
Euronext Amsterdam N.V. with due observance of the Savings Certificates Act
(including registration requirements), provided that no mediation is required in
respect of (i) the initial issue of those Securities to the first holders
thereof, (ii) any transfer or acceptance by individuals who do not act in the
conduct of a profession or trade and (iii) the transfer or acceptance of those
Securities, if they are physically issued outside The Netherlands and are not
distributed in The Netherlands in the course of primary trading or immediately
thereafter.
V.
Each of the Issuers (as to itself) and the Guarantor (as to each of the
Issuers and to itself) covenant and agree with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall be
reasonably disapproved by any Agent promptly after reasonable notice thereof or
(B) after the date of any Terms Agreement or other agreement by an Agent to
purchase Securities as principal and prior to the related Time of Delivery which
shall be reasonably disapproved by any Agent party to such Terms Agreement or so
purchasing as principal promptly after reasonable notice thereof; (ii) to
prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement containing Sale Information (as
defined in Annex II hereto) with respect to such Securities in a form previously
approved by such Agent and to file such Pricing Supplement pursuant to Rule
424(b) under the Act not later than the close of business of the Commission on
the fifth business day after the date on which such Pricing Supplement is first
used; (iii) to make no amendment or supplement to the Registration Statement or
Prospectus other than any Pricing Supplement containing only Sale Information
with respect to the relevant
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Securities, at any time prior to having afforded each Agent a reasonable
opportunity to review and comment thereon; provided, however, that the
requirements in clauses (i) and (iii) of this Section V(a) shall not apply with
respect to an amendment or supplement which relates to Securities sold through
or to agents other than the Agents and contains no new information other than
the terms of such Securities and the plan of distribution thereof; (iv) to
maintain without amendment the Guarantee for so long as there are any Securities
outstanding; (v) to file promptly all reports or information statements required
to be filed by such Issuer or the Guarantor 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 the
Securities, and during such same period to advise such Agent, promptly after any
Issuer or the Guarantor receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any Pricing
Supplement that relates to Securities not purchased through or by such Agent)
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 Securities, of the suspension of the qualification of the
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 amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (vi) in the event of the issuance
of any such stop order or of any such order preventing or suspending the use of
any such prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal.
(b) Promptly from time to time to take such action as such Agent
reasonably may request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution or sale of the
Securities, provided, however, that in connection therewith none of the Issuers
nor the Guarantor shall be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction.
(c) To furnish such Agent with a copy of the Registration
Statement and each amendment thereto, with a copy of the Prospectus and each
amendment or supplement thereto, and additional copies of the Prospectus as each
time amended or supplemented, other than any Pricing Supplement (except as
provided in the Procedures), in the form in which it is filed with the
Commission pursuant to Rule 424 under the Act, and with copies of the documents
incorporated by reference therein, all in such quantities as such Agent may
reasonably request from time to time; and if at any 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 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 such Agent
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promptly by telephone (with confirmation in writing) and request such Agent, in
its capacity as agent of the Issuers and the Guarantor, to suspend solicitation
of offers to purchase Securities from the Issuers (and, if so notified such
Agent shall cease such solicitations as soon as practicable, but in any event
not later than one business day after notification); and if the Issuers or the
Guarantor shall decide to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented, to so advise such Agent promptly by
telephone (with confirmation in writing) and to prepare and to cause to be filed
with the Commission an amendment or supplement to the Registration Statement or
the Prospectus as then amended or supplemented that will correct such statement
or omission or effect such compliance; provided, however, that if, at any time
prior to the expiration of nine months after the Time of Delivery with respect
to any Securities, such Agent continues to own Securities purchased from any
Issuer by such Agent as principal, such Issuer and the Guarantor shall promptly
prepare and deliver to such Agent such an amendment or supplement that will
correct such statement or omission; provided further, however, that if at any
time nine months or more after the Time of Delivery with respect to any
Securities, such Agent continues to own Securities purchased from any Issuer by
such Agent as principal, such Issuer and the Guarantor, upon such Agent's
request but at the sole expense of such Agent, shall prepare and deliver to such
Agent as many copies as such Agent shall request of such an amendment or
supplement. If all documents, certificates, opinions and letters furnished to
the Agents pursuant to Section V(e), (i), (j) and (k) in connection with the
preparation and filing of such amendment or supplement are satisfactory in all
respects to the Agents, upon the filing with the Commission of such amendment or
supplement to the Prospectus or upon the effectiveness of such amendment to the
Registration Statement, the Agents will resume the solicitation of offers to
purchase Securities hereunder.
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after (i) the
effective date of the Registration Statement, (ii) the effective date of each
post-effective amendment to the Registration Statement, and (iii) the date of
each filing by the Guarantor with the Commission of an annual report on Form
20-F that is incorporated by reference in the Registration Statement, an earning
statement of the Guarantor 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 Guarantor, Rule 158).
(e) For a period of three years after the completion of the sale
of all the Securities, to furnish to such Agent copies of all reports or other
communications of the Guarantor (financial or other) furnished to stockholders,
and deliver to such Agent as soon as they are available, copies of any reports
and financial statements of such Issuer or the Guarantor furnished to or filed
with the Commission or any United States or United Kingdom or other European
national securities exchange on which any class of securities of such Issuer or
the Guarantor is listed.
(f) That, from the date of any Terms Agreement with such Agent and
continuing to and including the related Time of Delivery, not to offer, sell,
contract to sell
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or otherwise dispose of, in each case in the United States, any debt securities
of the Issuers or the Guarantor which both mature more than one year after such
Time of Delivery and are substantially similar to the Securities, without the
prior written consent of such Agent, such consent not to be unreasonably
withheld.
(g) That each acceptance by any of the Issuers of an offer to
purchase Securities hereunder (including any purchase by such Agent as principal
not pursuant to a Terms Agreement), and each execution and delivery by any of
the Issuers and the Guarantor of a Terms Agreement with such Agent, and each
amendment or supplement of the Registration Statement or the Basic Prospectus by
any of the Issuers or the Guarantor, shall be deemed to be an affirmation to
such Agent that the representations and warranties of such Issuer and the
Guarantor contained in or made pursuant to this Agreement are true and correct
as of the date of such acceptance or of such Terms Agreement or of such
amendment or supplement, as the case may be, as though made at and as of such
date, and an undertaking that such representations and warranties will be true
and correct as of the settlement date for the Securities relating to such
acceptance or as of the Time of Delivery relating to such sale, as the case may
be, as though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented to each such date).
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented other than by a
prospectus supplement containing only terms of a particular offering of
securities and each time any of the Issuers sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion or opinions by Xxxxx Xxxx & Xxxxxxxx, counsel to the
Agents, as a condition to the purchase of Securities pursuant to such Terms
Agreement, such Issuer and the Guarantor shall furnish to such counsel such
papers and information as they may reasonably request to enable them to furnish
to such Agent the opinion or opinions referred to in Section VI(d) hereof.
(i) (A) That each time the Registration Statement or Prospectus
shall be amended or supplemented other than by a prospectus supplement
containing only terms of a particular offering of securities and each time any
of the Issuers sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section V(i)(A) as a condition to the purchase of Securities pursuant to
such Terms Agreement, such Issuer and the Guarantor shall furnish or cause to be
furnished forthwith to such Agent a written opinion of Xxxxxxxx & Xxxxxxxx LLP,
United States counsel for the Issuers and the Guarantor, or other counsel for
the Issuers and the Guarantor satisfactory to such Agent, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such sale,
as the case may be, in form reasonably satisfactory to such Agent, to the effect
that such Agent may rely on the opinion of such counsel referred to in Section
VI(a) hereof which was last furnished to such Agent to the same extent as though
it were dated the date of such letter authorizing reliance (except that in the
case of an opinion delivered at a time other than a Time of Delivery or the
filing of the Guarantor's annual report on Form 20-F
- 12 -
such opinion need cover only the matters referred to in the last paragraph of
Section VI(a) and except that the statements in such last opinion shall be
deemed to relate to the Registration Statement and Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an opinion of the same
tenor as the opinion of such counsel referred to in Section VI(a) hereof but
modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to such date.
(B) That each time the Registration Statement or the Prospectus
shall be amended or supplemented other than by either a prospectus supplement
containing only terms of a particular offering of securities and each time any
of the Issuers sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section V(i)(B) as a condition to the purchase of Securities pursuant to
such Terms Agreement, such Issuer and the Guarantor shall furnish or cause to be
furnished forthwith to such Agent a written opinion of Xxxxxxxxx and May,
English counsel for the Guarantor, or other counsel for the Guarantor
satisfactory to such Agent, dated the date of such amendment, supplement,
incorporation or Time of Delivery relating to such sale, as the case may be, in
form and substance reasonably satisfactory to such Agent, to the effect that
such Agent may rely on the opinion of such counsel referred to in Section VI(b)
hereof which was last furnished to such Agent to the same extent as though it
were dated the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the Registration
Statement or the Prospectus as amended and supplemented to such date) or, in
lieu of such opinion, an opinion of the same tenor as the opinion of such
counsel referred to in Section VI(b) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date.
(C) That each time the Registration Statement or the Prospectus
shall be amended or supplemented other than by a prospectus supplement
containing only terms of a particular offering of securities and each time the
Scottish Issuer sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section V(i)(C) as a condition to the purchase of Securities pursuant to
such Terms Agreement, such Issuer shall furnish or cause to be furnished
forthwith to such Agent a written opinion of Xxxxxx Xxxxxx, Scottish counsel for
the Scottish Issuer and the Guarantor, or other counsel for the Scottish Issuer
and the Guarantor satisfactory to such Agent, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as the case
may be, in form reasonably satisfactory to such Agent, to the effect that such
Agent may rely on the opinion of such counsel referred to in Section VI(c)
hereof which was last furnished to such Agent to the same extent as though it
were dated the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the Registration
Statement or the Prospectus as amended and supplemented to such date) or, in
lieu of such opinion, an opinion of the same tenor as the opinion of such
counsel referred to in Section VI(c) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date.
- 13 -
(D) That each time the Registration Statement or the Prospectus
shall be amended or supplemented other than by either a prospectus supplement
containing only terms of a particular offering of securities and each time the
Dutch Issuer sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section V(i)(D) as a condition to the purchase of Securities pursuant to
such Terms Agreement, such Issuer and the Guarantor shall furnish or cause to be
furnished forthwith to such Agent a written opinion of Houthoff Buruma, Dutch
counsel for the Dutch Issuer and the Guarantor, or other counsel for the Dutch
Issuer and the Guarantor satisfactory to such Agent, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such sale,
as the case may be, in form and substance reasonably satisfactory to such Agent,
to the effect that such Agent may rely on the opinion of such counsel referred
to in Section VI(d) hereof which was last furnished to such Agent to the same
extent as though it were dated the date of such letter authorizing reliance
(except that the statements in such last opinion shall be deemed to relate to
the Registration Statement or the Prospectus as amended and supplemented to such
date) or, in lieu of such opinion, an opinion of the same tenor as the opinion
of such counsel referred to in Section VI(d) hereof but modified to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such date.
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented to include financial statements or other
financial information which are different from the financial statements or other
financial information then included in the Registration Statement or the
Prospectus, including by the filing of the Guarantor's annual report on Form
20-F or the Guarantor's report on Form 6-K containing consolidated financial
statements for the first six months of the Guarantor's then current fiscal year,
and each time any of the Issuers sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of
a letter under this Section V(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the applicable Issuer and the Guarantor shall
cause the independent auditors who have audited the financial statements of such
Issuer, the Guarantor and their subsidiaries included in the Registration
Statement and the Prospectus forthwith to furnish such Agent a letter, dated the
date of such amendment, supplement or Time of Delivery relating to such sale, as
the case may be, in form reasonably satisfactory to such Agent, of the same
tenor as the letter referred to in Section VI(f) hereof but modified to relate
to the Registration Statement and the Prospectus as amended or supplemented to
the date of such letter, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of such Issuer and the Guarantor, to the extent such
financial statements and other information are available as of a date not more
than three business days prior to the date of such letter; provided, however,
that, with respect to any financial information or other matter, such letter may
reconfirm as true and correct at such date as though made at and as of such
date, rather than repeat, statements with respect to such financial information
or other matter made in the letter referred to in Section VI(f) hereof which was
last furnished to such Agent.
- 14 -
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented other than by a prospectus supplement
containing only terms of a particular offering of securities and each time any
of the Issuers sells Securities to such Agent as principal and the applicable
Terms Agreement specifies the delivery of a certificate under this Section V(k)
as a condition to the purchase of Securities pursuant to such Terms Agreement,
the applicable Issuer and the Guarantor shall furnish or cause to be furnished
forthwith to such Agent a certificate or certificates, dated the date of such
supplement, amendment or Time of Delivery relating to such sale, as the case may
be, in such form and executed by such officers of such Issuer and the Guarantor
as shall be reasonably satisfactory to such Agent, to the effect that the
statements contained in the certificate or certificates referred to in Section
VI(j) hereof which was last furnished to such Agent are true and correct in all
material respects at such date as though made at and as of such date (except
that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in lieu of such
certificate or certificates, a certificate or certificates of the same tenor as
the certificate or certificates referred to in said Section VI(j) but modified
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; each such officer may certify to the best of his or
her knowledge.
(l) To offer to any person who has agreed to purchase Securities
as the result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related settlement
date fixed pursuant to the Procedures, any condition set forth in Section VI(g),
(h), (i) or (j) hereof shall not have been satisfied (it being understood that
the judgment of such person with respect to the impracticability or
inadvisability of such purchase of Securities shall be substituted, for purposes
of this Section V(l), for the respective judgment of an Agent with respect to
certain matters referred to in such Sections VI(g) and (i), and that such Agent
shall have no duty or obligation whatsoever to exercise the judgment permitted
under such Section VI(g) and (i) on behalf of any such person).
(m) Each of the Issuers (as to itself) and the Guarantor (as to
each of the Issuers and to itself) covenant and agree with each Agent that the
Issuers and the Guarantor will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Issuers' and the Guarantor's counsel and
accountants in connection with the issuance of the Securities, the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus,
the Prospectus and any Pricing Supplements and all other amendments and
supplements thereto, and the mailing and delivering of copies thereof to such
Agent; (ii) the reasonable fees, disbursements and expenses of counsel for the
Agents in connection with the establishment and updating of the program
contemplated hereby, any opinions to be rendered by such counsel hereunder and
the transactions contemplated hereunder; (iii) the cost of printing, preparing
by word processor or reproducing any Terms Agreement, any Indenture, any Blue
Sky and Legal Investment Memoranda and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iv) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section V(b) hereof, including fees
and disbursements of counsel for the Agents in
- 15 -
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (v) any fees charged by securities rating services for
rating the Securities; (vi) the cost of preparing the Securities (including any
global Securities); and (vii) the reasonable fees and expenses of the Trustee
and any agent of the Trustee and any transfer or paying agent of the Issuers or
of the Guarantor and the reasonable fees and disbursements of counsel for the
Trustee and any such agent in connection with the Indentures and the Securities.
Except as provided in Sections VII and VIII hereof, each Agent shall pay all
other expenses it incurs.
VI.
The obligation of any Agent, as agent of each of the Issuers and the
Guarantor, at any time ("Solicitation Time") to solicit offers to purchase the
Securities and the obligation of any Agent to purchase Securities as principal,
pursuant to any Terms Agreement or otherwise, shall in each case be subject, in
such Agent's discretion, to the condition that all representations and
warranties and other statements of the applicable Issuer and the Guarantor
herein (and, in the case of an obligation of an Agent under a Terms Agreement,
in or incorporated in such Terms Agreement by reference) are true and correct at
and as of the Commencement Date and any applicable date referred to in Section
V(k) hereof that is prior to such Solicitation Time or Time of Delivery, as the
case may be, and at and as of such Solicitation Time or Time of Delivery, as the
case may be, the condition that prior to such Solicitation Time or Time of
Delivery, as the case may be, such Issuer and the Guarantor shall have performed
in all material respects all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Issuers
and the Guarantor, or other counsel for the Issuers and the Guarantor
satisfactory to such Agent, shall have furnished to such Agent their written
opinion, dated the Commencement Date and each applicable date referred to in
Section V(i)(A) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in form and substance satisfactory to such Agent,
to the effect that:
(i) if applicable, the U.S. Issuer has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
State of Delaware;
(ii) assuming the Scottish Indenture has been duly authorized,
executed and delivered by the Scottish Issuer insofar as the laws of Scotland
are concerned, the Scottish Indenture has been duly executed and delivered by
the Scottish Issuer, and, assuming the Scottish Indenture has been duly
authorized, executed and delivered by the Guarantor insofar as the laws of
England are concerned, the Scottish Indenture has been duly executed and
delivered by the Guarantor, has been duly qualified under the Trust Indenture
Act of 1939 and constitutes a valid and legally binding obligation of the
Scottish Issuer and the Guarantor, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws
- 16 -
of general applicability relating to or affecting creditors' rights and to
general equity principles;
(iii) assuming the Dutch Indenture has been duly authorized,
executed and delivered by the Dutch Issuer insofar as the laws of the
Netherlands are concerned, the Dutch Indenture has been duly executed and
delivered by the Dutch Issuer, and, assuming the Dutch Indenture has been duly
authorized, executed and delivered by the Guarantor insofar as the laws of
England are concerned, the Dutch Indenture has been duly executed and delivered
by the Guarantor, has been duly qualified under the Trust Indenture Act of 1939
and constitutes a valid and legally binding obligation of the Dutch Issuer and
the Guarantor, 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;
(iv) the Calculation Agency Agreement, dated as of December 8,
2003 (the "Calculation Agency Agreement") among the Scottish Issuer, the Dutch
Issuer, the U.S. Issuer, the Guarantor and Citibank, N.A. has been duly
authorized, executed and delivered by the U.S. Issuer and, assuming the
Calculation Agency Agreement has been duly authorized, executed and delivered by
the Scottish Issuer insofar as the laws of Scotland are concerned, the
Calculation Agency Agreement has been duly executed and delivered by the
Scottish Issuer and, assuming the Calculation Agency Agreement has been duly
authorized, executed and delivered by the Dutch Issuer insofar as the laws of
the Netherlands are concerned, the Calculation Agency Agreement has been duly
executed and delivered by the Dutch Issuer and, assuming the Calculation Agency
Agreement has been duly authorized, executed and delivered by the Guarantor
insofar as the laws of England are concerned, the Calculation Agency Agreement
has been duly executed and delivered by the Guarantor, and constitutes a valid
and legally binding obligation of the U.S. Issuer, the Dutch Issuer, the
Scottish Issuer and the Guarantor 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.
(v) the Exchange Rate Agency Agreement, dated as of December 8,
2003 (the "Exchange Rate Agency Agreement") among the Scottish Issuer, the Dutch
Issuer, the U.S. Issuer, the Guarantor and Citibank, N.A. has been duly
authorized, executed and delivered by the U.S. Issuer and, assuming the Exchange
Rate Agency Agreement has been duly authorized, executed and delivered by the
Scottish Issuer insofar as the laws of Scotland are concerned, the Exchange Rate
Agency Agreement has been duly executed and delivered by the Scottish Issuer
and, assuming the Exchange Rate Agency Agreement has been duly authorized,
executed and delivered by the Dutch Issuer insofar as the laws of the
Netherlands are concerned, the Exchange Rate Agency Agreement has been duly
authorized, executed and delivered by the Dutch Issuer and, assuming the
Exchange Rate Agency Agreement has been duly authorized, executed and delivered
by the Guarantor insofar as the laws of England are concerned, the Exchange Rate
Agency Agreement has been duly executed and delivered by the Guarantor, and
constitutes a valid and legally binding obligation of the U.S. Issuer, the Dutch
Issuer, the Scottish
- 17 -
Issuer and the Guarantor 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.
(vi) the U.S. Indenture has been duly authorized, executed and
delivered by the U.S. Issuer and, assuming the U.S. Indenture has been duly
authorized, executed and delivered by the Guarantor insofar as the laws of
England are concerned, the U.S. Indenture has been duly executed and delivered
by the Guarantor, has been duly qualified under the Trust Indenture Act of 1939,
and constitutes a valid and legally binding obligation of the U.S. Issuer and
the Guarantor 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.
(vii) the Securities have been duly authorized by the U.S. Issuer
and, assuming the Securities have been duly authorized by the Scottish Issuer
insofar as the laws of Scotland are concerned, the Securities have been duly
authorized by the Scottish Issuer and, assuming the Securities have been duly
authorized by the Dutch Issuer insofar as the laws of the Netherlands are
concerned, the Securities have been duly authorized by the Dutch Issuer and when
the terms of a particular Security and of its issuance and sale have been duly
authorized and established by all necessary corporate action in conformity with
the applicable Indenture, and such Security has been duly completed, executed,
authenticated and issued in accordance with the applicable Indenture and
delivered against payment in accordance with this Agreement, such Security will
constitute valid and legally binding obligations of the applicable Issuer,
enforceable in accordance with their terms and entitled to the benefits provided
by the applicable Indenture and Guarantee, 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; when a particular Security has been duly authorized, executed,
authenticated, issued and delivered by the Scottish Issuer, the Dutch Issuer, or
the U.S. Issuer, and the Guarantee corresponding to such Security has been duly
executed, issued and delivered by the Guarantor, such Guarantee will constitute
a valid and legally binding obligation of the Guarantor 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; in
rendering such opinion at any time other than pursuant to a Terms Agreement such
counsel may assume that at the time of issuance, sale and delivery of each
particular Security the authorization of the Securities will not have been
modified or rescinded and, with respect to each Security, that such Security and
the Guarantee endorsed thereon will conform to the respective forms of the
Securities examined by them (such latter assumption may be made even if such
opinion is rendered pursuant to a Terms Agreement) and that the Trustee's
certificate of authentication of such Note will be manually signed by one of the
Trustee's authorized officers; such counsel may also assume that at the time of
the issuance, sale and delivery of each particular Security there will not have
occurred any change in law affecting the validity, legally binding character or
enforceability of such Security or the
- 18 -
corresponding Guarantee and that the issuance, sale and delivery of such
Security and such Guarantee, all of the terms of such Security and such
Guarantee and the performance by the Issuers and the Guarantor of their
respective obligations thereunder will comply with applicable law and with each
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Issuers or the Guarantor and will not result in a default
under or a breach of any agreement or instrument then binding upon the Issuers
or the Guarantor;
(viii) this Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the U.S. Issuer and assuming this
Agreement and any applicable Terms Agreement have been duly authorized, executed
and delivered by the Scottish Issuer insofar as the laws of Scotland are
concerned, have been duly executed and delivered by the Scottish Issuer and,
assuming this Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Dutch Issuer insofar as the laws of
the Netherlands are concerned, have been duly authorized, executed and delivered
by the Dutch Issuer and, assuming this Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered by the Guarantor
insofar as the laws of England are concerned, have been duly executed and
delivered by the Guarantor;
(ix) the execution and delivery by the Issuers and the Guarantor
of the Indentures and the Distribution Agreement do not, and the completion,
execution and issuance of each particular Security and Guarantee in accordance
with the Indentures and the sale by the applicable Issuer of such Security in
accordance with this Agreement and any applicable Terms Agreement and the
performance by such Issuer and the Guarantor of their respective obligations
under the Indentures, the Agreement and any applicable Terms Agreement, the
Securities, and the Guarantees will not, in the case of the U.S. Issuer, violate
the U.S. Issuer's Certificate of Incorporation or By-laws, or violate any
Federal law of the United States, the law of the State of New York or, in the
case of the U.S. Issuer, the General Corporation Law of the State of Delaware,
applicable to such Issuer or the Guarantor; provided, however, that, with
respect to this paragraph VI(a)(ix), such counsel need express no opinion with
respect to Federal or state securities laws, other anti-fraud laws, fraudulent
transfer laws and laws that restrict transactions between United States persons
and citizens or residents of certain foreign countries or specifically
designated nationals and organizations; provided, further, that insofar as
performance by each of the Issuers and the Guarantor of their respective
obligations under the Indentures, this Agreement, any applicable Terms
Agreement, the Securities, and the Guarantees is concerned, such counsel need
express no opinion as to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights;
(x) the applicable Issuer 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 rendering such opinion, such counsel may state that their opinion is
limited to
- 19 -
the Federal laws of the United States, the laws of the State of New York and the
General Corporation Law of the State of Delaware and such counsel may (i) note
that, as to matters of English law, the Agents have received the opinion of
Xxxxxxxxx and May, English counsel for the Guarantor, rendered pursuant to
Section VI(b), the opinion of Xxxxxx Xxxxxx, Scottish counsel to the Scottish
Issuer rendered pursuant to Section VI(c) and the opinion of Houthoff Buruma,
Dutch counsel to the Dutch Issuer rendered pursuant to Section VI(d); (ii)
assume that the Scottish Issuer has been duly incorporated and is an existing
company under the laws of Scotland; (iii) assume that the Dutch Issuer has been
duly incorporated and is an existing company under the laws of the Netherlands;
(iv) assume that the Guarantor has been duly incorporated and is an existing
public limited company under the laws of England and Wales; (v) each Security
issued by the Scottish Issuer or the Dutch Issuer will be duly executed and
delivered in accordance with the laws of Scotland or The Netherlands, as
applicable; and (vi) assume that the Guarantees have been authorized in
accordance with the laws of England and Wales and the Guarantee corresponding to
each Security will be duly executed and delivered in accordance with the laws of
England and Wales.
Such counsel may also state that, with your approval, they have relied
as to certain matters or information obtained from public officials, officers of
the Issuers and the Guarantor and other sources believed by them to be
responsible, and that they have assumed that the Indentures have been duly
authorized, executed and delivered by the Trustee and that the signatures on all
documents examined by them are genuine, assumptions which they have not
independently verified.
Such counsel shall also state that they have reviewed the Registration
Statement, the Basic Prospectus and the Prospectus Supplement and participated
in discussions with representatives of the applicable Issuer and the Guarantor
and their English and, if applicable, Scottish and/or Dutch law counsel,
representatives of the accountants for the applicable Issuer and the Guarantor
and representatives of the Agents and their U.S. counsel; and on the basis of
the information that they gained in the course of the performance of such
services, considered in the light of their understanding of the applicable law
and the experience they have gained through their practice in this field, such
counsel shall confirm to the Agents that 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 to the requirements of the Securities Act, the Trust Indenture
Act of 1939 and the applicable rules and regulations of the Commission
thereunder; and nothing that has come to the attention of such counsel has
caused them to believe (a) that 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 material fact or omitted to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances in which they were made, not misleading or (b) that,
in the course of specified procedures performed by them
- 20 -
subsequent to the effective date of the Registration Statement, the Basic
Prospectus, as supplemented by a Prospectus Supplement, as of the date of such
opinion 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. Such
opinion may state (1) that such counsel do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, Basic Prospectus or the Prospectus Supplement except for
those made under the captions "Description of Debt Securities and Guarantees"
and "Taxation--United States Taxation" in the Basic Prospectus and "Description
of Notes" and "Plan of Distribution" in the Prospectus Supplement insofar as
they relate to the provisions of documents therein described and (2) that they
do not express any opinion or belief as to the financial statements or other
financial data or as to any statement made by English counsel to the Guarantor
with respect to English law, any statement made by the Scottish counsel to the
Scottish Issuer with respect to Scottish law or any statement made by the Dutch
counsel to the Dutch Issuer with respect to Dutch law, in each case, contained
in the Registration Statement, the Basic Prospectus or any Prospectus
Supplement, or documents incorporated by reference therein, or as to the
statement of the eligibility and qualification of the Trustee under the
Indentures under which the Securities are being issued.
(b) Xxxxxxxxx and May, English counsel for the Guarantor, or other
English counsel for the Guarantor satisfactory to such Agent, shall have
furnished to such Agent their written opinion, dated the Commencement Date and
each applicable date referred to in Section V(i)(B) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect that:
(i) the Guarantor is a public limited company duly incorporated
under the laws of England and Wales and is a validly existing company;
(ii) the execution and delivery of the Indentures, the Guarantees,
this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency
Agreement, and any applicable Terms Agreement have been duly authorized by the
Guarantor and the Indentures, the Guarantees, this Agreement, and any applicable
Terms Agreement will have been duly executed and delivered by the Guarantor;
(iii) the choice of the laws of the State of New York as the
governing law of each Indenture, the Guarantees, this Agreement, the Calculation
Agency Agreement, the Exchange Rate Agency Agreement, and any applicable Terms
Agreement is a valid choice of law; the validity and binding nature of the
obligations contained in each Indenture, the Guarantees, this Agreement, the
Calculation Agency Agreement, and any applicable Terms Agreement are expressed
to be governed by New York law;
(iv) on the assumption that the Indentures, the Guarantees, this
Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement,
and any applicable Terms Agreement create valid and binding obligations of the
parties under
- 21 -
New York law, English law will not prevent any provisions of the Indentures, the
Guarantees, this Agreement, the Calculation Agency Agreement, or any applicable
Terms Agreement from being valid and binding obligations of the Guarantor;
(v) the execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under, the Indentures, the
Guarantees, this Agreement, the Calculation Agency Agreement, the Exchange Rate
Agency Agreement, and any applicable Terms Agreement will not contravene (i) any
law of England and Wales in a manner which would render such performance,
insofar as it relates to the Guarantor's payment obligations, unlawful; or (ii)
the Memorandum and Articles of Association of the Guarantor;
(vi) there are no required authorizations, approvals or consents
of, or registration or filing with, any court, governmental or regulatory
authority of or with the United Kingdom required in connection with the
execution, delivery and performance of this Agreement, the Calculation Agency
Agreement, the Exchange Rate Agency Agreement, any applicable Terms Agreement,
the Guarantees, and the Indentures by the Guarantor;
(vii) a final and conclusive judgment against the Guarantor for a
definite sum of money entered by any Federal or State court in the United States
of America in any suit, action or proceeding arising out of or in connection
with either Indenture, the Guarantees, this Agreement, the Calculation Agency
Agreement, the Exchange Rate Agency Agreement, or any applicable Terms Agreement
would be enforced by the English courts, without re-examination or re-litigation
of the matters adjudicated upon, by the English courts, provided that:
(a) the judgment was not obtained by fraud;
(b) the enforcement of the judgment would not be contrary to
English public policy;
(c) the judgment was not obtained in proceedings contrary to
natural justice;
(d) the judgment is not inconsistent with an English
judgment in respect of the same matter;
(e) the judgment is not for multiple damages; and
(f) enforcement proceedings are instituted within six years
after the date of the judgment;
(viii) assuming that the submission to the non-exclusive
jurisdiction of any Federal or State court in the Borough of Manhattan, The City
of New York (the "New York Courts") contained in each Indenture, this Agreement,
and any applicable Terms Agreement is valid and binding under New York law, (a)
English law will not prevent the same from being valid and binding upon the
Guarantor, (b) the Guarantor is not prevented by its Memorandum and Articles of
Association or any overriding principles of English law from agreeing to waive
any objection, pursuant to the Indentures, this
- 22 -
Agreement, or any applicable Terms Agreement to the venue of proceedings in the
New York Courts and (c) such waiver is valid and binding under the laws of
England and Wales;
(ix) service of process effected in the manner set forth in
Section XIII of this Agreement and Section 115 of each Indenture, assuming its
validity and effectiveness under New York law, will be effective, insofar as the
laws of England and Wales are concerned, to confer valid jurisdiction over the
Guarantor;
(x) the Guarantor has the power to submit, and has taken all
necessary corporate action to submit, to the jurisdiction of any New York Court,
and to appoint Diageo North America, Inc. as its authorized agent for the
purposes and to the extent described in Section XIII of this Agreement and in
Section 115 of each Indenture; and
(xi) the statements in the "Enforceability of Certain Civil
Liabilities", "Description of Debt Securities and Guarantees --Payment of
Additional Amounts" and "Taxation--United Kingdom Taxation" sections of the
Prospectus, insofar as they are summaries of tax considerations or refer to
statements of law or legal conclusions, in all material respects present fairly
the information shown.
In giving such opinion, such counsel may state that such opinion is
confined to and given on the basis of English law as currently applied by the
English courts and on the basis that it will be governed by and construed and
have effect in accordance with English law. Such opinion also may state that
nothing therein is to be taken as indicating that the remedy of an order for
specific performance or the issue of an injunction would be available in an
English court in respect of the obligations arising under either Indenture, the
Guarantees, this Agreement, the Calculation Agency Agreement, the Exchange Rate
Agency Agreement, or any applicable Terms Agreement in that such remedies are
available only at the discretion of the court and are not usually granted where
damages would be an adequate remedy. Also in giving such opinion, such counsel
may rely upon the opinion or opinions of counsel named in paragraph (a) of this
Section VI as to matters of New York and United States federal law.
(c) If applicable, Xxxxxx Xxxxxx, Scottish counsel for the
Scottish Issuer and the Guarantor, or other counsel for the Scottish Issuer and
the Guarantor satisfactory to such Agent, shall have furnished to such Agent
their written opinion, dated the Commencement Date and each applicable date
referred to in Section V(i)(C) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, in form and substance satisfactory
to such Agent, to the effect that:
(i) the Scottish Issuer is a public limited company, duly
incorporated, validly existing and registered under the laws of Scotland, and
has the full corporate power and authority to execute, deliver and perform its
obligations under the Scottish Indenture, the Securities, this Agreement, the
Calculation Agency Agreement, the Exchange Rate Agency Agreement, and any
applicable Terms Agreement;
- 23 -
(ii) the Scottish Indenture, the Calculation Agency Agreement, and
the Exchange Rate Agency Agreement, have been duly authorized, executed and
delivered by the Scottish Issuer and, on the assumption that the Scottish
Indenture and the Calculation Agency Agreement create valid and binding
obligations of the parties under New York law, Scottish law will not prevent any
provision of the Scottish Indenture, the Calculation Agency Agreement, or the
Exchange Rate Agency Agreement from being a valid and binding obligation of the
Scottish Issuer, subject to all limitations resulting from bankruptcy,
insolvency, liquidation, receivership, administration, reorganization of the
Scottish Issuer and court schemes, moratoria and similar laws of general
application affecting the enforcement of creditors' rights applicable to the
Scottish Issuer;
(iii) the Securities have been duly authorized, executed,
authenticated and issued and delivered by the Scottish Issuer and, on the
assumption that the Securities create valid and binding obligations of the
parties thereto under New York law, Scottish law will not prevent any provision
of the Securities from being a valid and binding obligation of the Scottish
Issuer subject to all limitations resulting from bankruptcy, insolvency,
liquidation, receivership, administration and reorganization of the Scottish
Issuer and court schemes, moratoria and similar laws of general application
affecting the enforcement of creditors' rights applicable to the Scottish
Issuer;
(iv) this Agreement and any applicable Terms Agreement have been
duly authorized, executed, and delivered by the Scottish Issuer and, on the
assumption that this Agreement and any applicable Terms Agreement create valid
and binding obligations of the parties hereto under New York law, Scottish law
will not prevent any provision of this Agreement or any applicable Terms
Agreement from being a valid and binding obligation of the Scottish Issuer
subject to all limitations resulting from bankruptcy, insolvency, liquidation,
receivership, administration and reorganization of the Scottish Issuer and court
schemes, moratoria and similar laws of general application affecting the
enforcement of creditors' rights applicable to the Scottish Issuer;
(v) the execution and delivery by the Scottish Issuer of, and the
performance by the Scottish Issuer of its obligations under, this Agreement, any
applicable Terms Agreement, the Securities, the Calculation Agency Agreement,
the Exchange Rate Agency Agreement, and the Indenture will not contravene any
provision of Scottish law or the Memorandum and Articles of Association of the
Scottish Issuer or any agreement or other instrument binding upon the Scottish
Issuer or any of its subsidiaries that, in each case, is material to the
Scottish Issuer or any of its subsidiaries, taken as a whole, or any material
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Scottish Issuer or any such subsidiary;
(vi) there are no required authorizations, approvals or consents
of, or registration or filing with, any governmental or regulatory authority of
or with the United Kingdom required in connection with the execution, delivery
and performance of the Securities by the Scottish Issuer, or of this Agreement,
any applicable Terms Agreement, the Scottish Indenture, the Calculation Agency
Agreement, and the Exchange Rate Agency Agreement by the Scottish Issuer;
- 24 -
(vii) the choice of law of the State of New York to govern the
Scottish Indenture, the Calculation Agency Agreement, the Exchange Rate Agency
Agreement, this Agreement, any applicable Terms Agreement and the Securities is
competent in terms of Scottish law and will be recognized and given effect to by
the courts in Scotland; the validity and binding nature of the obligations
contained in the Scottish Indenture, the Calculation Agency Agreement, the
Exchange Rate Agency Agreement, this Agreement, any applicable Terms Agreement
and the Securities are governed by New York law;
(viii) a judgment duly obtained in the courts of New York or
Federal courts of the United States of America sitting in New York in respect of
the Scottish Indenture, the Calculation Agency Agreement, the Exchange Rate
Agency Agreement, this Agreement, any applicable Terms Agreement or the
Securities will be enforceable in Scotland, provided that such judgment:
(a) is based on the exercise of personal jurisdiction by the
court issuing the judgment;
(b) is for a debt or an ascertained sum of money;
(c) is final and conclusive;
(d) is not inconsistent with a decree of a Scottish court in
respect of the same matter;
(e) is sought to be enforced by properly instituted and
served proceedings within five years of the date of such
judgment; and is not challengeable on the grounds of:
(1) absence of jurisdiction;
(2) fraud;
(3) public policy;
(4) natural justice;
(5) being a fine or penalty; or
(6) res judicata;
(ix) the submission to the non-exclusive jurisdiction of any
Federal or State court in the Borough of Manhattan, The City of New York (the
"New York Courts") contained in this Agreement, the Scottish Indenture, and any
applicable Terms Agreement is valid under Scottish law, and the Scottish Issuer
is not prevented by its Memorandum and Articles of Association or any overriding
principles of Scottish law from agreeing to waive any objection, pursuant to
this Agreement, the Scottish Indenture, or any applicable Terms Agreement to the
venue of proceedings in the New York Courts, and such waiver is valid and
binding under the laws of Scotland;
(x) service of process effected in the manner set forth in Section
XIII of this Agreement and Section 115 of the Scottish Indenture, assuming its
validity and
- 25 -
effectiveness under New York law, will be effective, insofar as the laws of
Scotland are concerned, to confer valid jurisdiction over the Scottish Issuer;
(xi) the Scottish Issuer has the power to submit, and has taken
all necessary corporate action to submit, to the jurisdiction of any New York
Court, and to appoint Diageo North America, Inc. as its authorized agent for the
purposes and to the extent described in Section XIII of this Agreement and in
Section 115 of the Scottish Indenture; and
In rendering such opinion, such counsel may state that they do not
express any opinion concerning any law other than the laws operative for the
time being in Scotland and that their opinion is based on the laws of Scotland
in force on the date thereof and is addressed to the Agents solely for their own
benefit in relation to the offering of the Securities and, except with their
prior written consent, is not to be transmitted or disclosed to or used or
relied upon by any other person or used or relied upon by the Agents or other
addresses thereof for any other purpose.
Such opinion may also state that nothing therein is to be taken as
indicating that the remedy of a decree of specific implement or the grant of the
prayer of a petition for interdict would be available in a Scottish court in
respect of the obligations arising under the Scottish Indenture, the Guarantee,
this Agreement, or any applicable Terms Agreement in that such remedies are
available only at the discretion of the court and are not usually granted where
damages would be an adequate remedy. Also in giving such opinion, such counsel
may rely upon the opinion or opinions of counsel named in paragraph (a) of this
Section VI to matters of New York and United States federal law.
(d) If applicable, Houthoff Buruma, Dutch counsel for the Dutch
Issuer and the Guarantor, or other counsel for the Dutch Issuer and the
Guarantor satisfactory to such Agent, shall have furnished to such Agent their
written opinion, dated the Commencement Date and each applicable date referred
to in Section V(i)(D) hereof that is on or prior to such Solicitation Time or
Time of Delivery, as the case may be, in form and substance satisfactory to such
Agent, to the effect that:
(i) the Dutch Issuer has been incorporated and is existing as a
legal entity (rechtspersoon) in the form of a private company with limited
liability (besloten vennootschap met beperkte aansprakelijkheid) under
Netherlands law;
(ii) the Dutch Issuer has the corporate power to enter into and
perform the Dutch Indenture, this Agreement, the Calculation Agency Agreement,
the Exchange Agency Agreement and any applicable Terms Agreement and to issue
and perform the Securities;
(iii) the Dutch Issuer has taken all necessary corporate action to
authorize its entry into, and performance of, the Dutch Indenture, this
Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any
applicable Terms Agreement and the Securities;
- 26 -
(iv) the Dutch Issuer has validly signed the Dutch Indenture, this
Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any
applicable Terms Agreement and the Securities;
(v) under Netherlands law, the choice of New York law as the
governing law of the Dutch Indenture, this Agreement, the Calculation Agency
Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the
Securities is recognized as a valid choice of law;
(vi) the Dutch Indenture, this Agreement, the Calculation Agency
Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the
Securities will, according to the courts of the Netherlands correctly applying
New York law as the law expressed to be governing the Dutch Indenture, this
Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any
applicable Terms Agreement and the Securities, constitute valid, binding and
enforceable obligations of the Dutch Issuer;
(vii) no governmental or regulatory consents, approvals or
authorizations are required by the Dutch Issuer under Netherlands law in
connection with its entry into or performance of the Dutch Indenture, this
Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any
applicable Terms Agreement or for the issue and performance of the Securities;
(viii) under Netherlands law, there are no registration, filing or
similar formalities required to ensure the validity, binding effect and
enforceability of the Dutch Indenture, this Agreement, the Calculation Agency
Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the
Securities against the Dutch Issuer, except for the purpose of complying with
the Dutch Securities Act;
(ix) under Netherlands law, there exists no requirement as to the
form of the Dutch Indenture, this Agreement, the Calculation Agency Agreement,
the Exchange Agency Agreement, any applicable Terms Agreement and the Securities
if they satisfy the formal requirements of New York law;
(x) the entry into and performance of the Dutch Indenture, the
Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement and
any applicable Terms Agreement, and the issue and performance of the Securities,
by the Dutch Issuer does not conflict with or result in a violation of the
Articles of Association of the Dutch Issuer or Netherlands law which would
affect the validity, binding effect and enforceability of the Dutch Indenture,
this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement,
any applicable Terms Agreement and the Securities against the Dutch Issuer;
(xi) under Netherlands law, the Agents are permitted to commence
proceedings against the Dutch Issuer in a Netherlands court of competent
jurisdiction for claims arising under this Agreement;
- 27 -
(xii) a judgment rendered by a court in the State of New York will
not be recognized and enforced by the Netherlands courts. However, if a person
has obtained a final and conclusive judgment for the payment of money rendered
by a court in the State of New York (the "foreign court") which is enforceable
in the United States of America (the "foreign judgment") and files his claim
with the Netherlands court of competent jurisdiction, the Netherlands court will
generally give binding effect to the foreign judgment insofar as it finds that
the jurisdiction of the foreign court has been based on grounds which are
internationally acceptable and that proper legal procedures have been observed,
unless the foreign judgment contravenes Netherlands public policy;
(xiii) no payment by the Dutch Issuer under the Dutch Indenture or
the Securities is subject to Netherlands withholding tax (bronbelasting); and
(xiv) the statements in the Basic Prospectus under the heading
"Taxation - Netherlands Taxation", to the extent that they are statements as to
Netherlands law, are correct in all material respects.
In giving such opinion, such counsel may state that such opinion is
confined to and given on the basis of Dutch law as currently applied by the
Dutch courts and on the basis that it will be governed by and construed and have
effect in accordance with Dutch law. Such opinion also may state that nothing
therein is to be taken as indicating that the remedy of an order for specific
performance or the issue of an injunction would be available in a Dutch court in
respect of the obligations arising under the Dutch Indenture, the Guarantee,
this Agreement or any applicable Terms Agreement in that such remedies are
available only at the discretion of the court and are not usually granted where
damages would be an adequate remedy. Also in giving such opinion, such counsel
may rely upon the opinion or opinions of counsel named in paragraph (a) of this
Section VI as to matters of New York and United States federal law.
(e) Xxxxx Xxxx & Xxxxxxxx, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the Commencement
Date, covering certain of the matters referred to in subparagraph (ii), (iii),
(iv), (v), (vi), and (vii) and the last paragraph of clause (a) of this Section
VI, and (ii) if and to the extent requested by such Agent, with respect to each
applicable date referred to in Section V(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, an opinion or
opinions, dated such applicable date, to the effect that such Agent may rely on
the opinion or opinions which were last furnished to such Agent pursuant to this
Section VI(e) to the same extent as though it or they were dated the date of
such letter authorizing reliance (except that the statements in such last
opinion or opinions shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in any case, in
lieu of such an opinion or opinions, an opinion or opinions of the same tenor as
the opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters; in giving such opinion, such counsel may rely upon the opinion or
opinions of counsel named in
- 28 -
paragraph (b) of this Section VI as to matters of English law, of counsel named
in paragraph (c) of this Section VI as to matters of Scottish law and of counsel
named in paragraph (d) of this Section VI as to matters of Dutch law.
(f) On the Commencement Date and on each applicable date referred
to in Section V(j) hereof that is on or prior to such Solicitation Time or Time
of Delivery, as the case may be, the independent auditors who have audited the
financial statements of the Issuers and the Guarantor and their subsidiaries
included in the Registration Statement and the Prospectus shall have furnished
to such Agent a letter, dated the Commencement Date or such applicable date, as
the case may be, in form and substance reasonably satisfactory to such Agent,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to agents or underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus, both as amended or supplemented.
(g) There shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations, of the Guarantor and its subsidiaries,
taken as a whole, from that set forth in the Registration Statement and
Prospectus, as amended or supplemented, that, in the reasonable judgment of each
applicable Agent, is material and adverse and that makes it, in the reasonable
judgment of such applicable Agent, after consultation with the applicable Issuer
and the Guarantor, impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus and Prospectus Supplement.
(h) There shall not have been any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the applicable Issuer's or the Guarantor's
securities by any "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(i) There shall not have occurred any of the following: (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of The New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of any of the Issuers or the Guarantor
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the reasonable judgment of
the applicable Agent, is material and adverse and, in the case of any of the
events specified in clauses (i) through (iv), such event singly or together with
any other such event, makes it, in the reasonable judgment of such Agent, after
consultation with the Issuers and the Guarantor, impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus as
amended or supplemented.
- 29 -
(j) The applicable Issuer or Issuers and the Guarantor shall have
furnished or caused to be furnished to such Agent certificates of officers of
such Issuer and the Guarantor dated the Commencement Date and each applicable
date referred to in Section V(k) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, in such form and executed by such
officers of such Issuer and the Guarantor as shall be reasonably satisfactory to
such Agent, as to the accuracy of the representations and warranties of such
Issuer and the Guarantor herein at and as of the Commencement Date or such
applicable date, as the case may be, as to the performance in all material
respects by such Issuer and the Guarantor of all of their obligations hereunder
to be performed at or prior to the Commencement Date or such applicable date, as
the case may be, as to the matters set forth in subsection (g) and (h) of this
Section VI, and as to such other matters as such Agent may reasonably request.
(k) The applicable Prospectus Supplement shall have been filed
with the Commission pursuant to Rule 424 within the applicable time period
prescribed for such filing by the rules and regulations under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement
shall be in effect.
(l) With respect to the Securities issued by the Scottish Issuer,
the Securities and the Guarantees to be delivered shall have been approved for
listing on The New York Stock Exchange, Inc. or any other internationally
recognized stock exchange that is recognized within the meaning of Section 841
of the United Kingdom Income and Corporation Taxes Xxx 0000, as amended (or any
successor provision thereto).
VII.
Each Issuer and the Guarantor jointly and severally agree to indemnify
and hold harmless each Agent and each person, if any, who controls any Agent
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other expenses
incurred in connection with any suit, action or proceeding on any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the applicable Issuer or the Guarantor shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Agents furnished to an Issuer or
the Guarantor in writing by any Agent expressly for use therein; provided,
however, the foregoing indemnity with respect to any untrue statement or
omission or alleged untrue statement or omission made in a preliminary
prospectus shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such loss, liability,
claim, damage or expense purchased any of the Securities that are the subject
thereof if such person was not sent or given a copy of the Prospectus (or the
Prospectus as amended or supplemented) (if the applicable Issuer
- 30 -
or the Guarantor shall have furnished any amendments or supplements thereto to
the Agents), at or prior to the written confirmation of the sale of such
Securities to such person and the untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented).
Each Agent agrees, severally and not jointly, to indemnify and hold
harmless each of the Issuers and the Guarantor, their respective directors,
their respective officers who sign the Registration Statement and each person,
if any, who controls each of the Issuers or the Guarantor within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Issuers and the Guarantor to
each Agent, but only with reference to information relating to such Agent
furnished to the Issuers or the Guarantor in writing by such Agent expressly for
use in the Registration Statement, any preliminary prospectus, the Prospectus,
or any amendment or supplement thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (hereinafter called the "indemnifying party") in
writing (or by facsimile and confirmed in writing) and the indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties, and that
all such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by Xxxxxx Xxxxxxx or, if Xxxxxx Xxxxxxx is not an
indemnified party and is not reasonably likely to become an indemnified party,
by the Agents that are indemnified parties, in the case of parties indemnified
pursuant to the second preceding paragraph and by the applicable Issuer or
Issuers and the Guarantor in the case of parties indemnified pursuant to the
first preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there shall be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
- 31 -
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceedings.
If the indemnification provided for in the first or second paragraph of
this Section VII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the applicable Issuer and the Guarantor, on the one hand,
and such Agent, on the other hand, from the offering of the Securities to which
such loss, claim, damage, liability or action in respect thereof relates or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
applicable Issuer and the Guarantor, on the one hand, and of such Agent, on the
other hand, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the applicable Issuer and the
Guarantor, on the one hand, and such Agent, on the other hand, shall be deemed
to be in the same respective proportions as the net proceeds from such offering
(before deducting expenses) received by the applicable Issuer and the total
discounts and commissions received by such Agent, in respect thereof. The
relative fault of the applicable Issuer and the Guarantor, on the one hand, and
of such Agent, on the other hand, 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 such Issuer and the Guarantor, on the one hand, or by
such Agent, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The applicable Issuer, the Guarantor and each Agent agree that it would
not be just and equitable if contribution pursuant to this Section VII were
determined by pro rata allocation (even if the Agents were treated as one entity
for such purpose) or by any other method or allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the
- 32 -
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, 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 Section VII, no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities referred to in the preceding paragraph and
purchased by it or through it were sold exceeds the amount of any damages that
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Agents' respective obligations
to contribute pursuant to this Section VII are several in proportion to the
respective principal amounts of Securities purchased by them or through them to
which such loss, claim, damage, liability or action in respect thereof relates,
and not joint. The remedies provided for in this Section VII are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
VIII.
Each Agent, in soliciting offers to purchase Securities from the
Issuers and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the applicable Issuer or
Issuers and the Guarantor and not as principal. Each Agent will make reasonable
efforts to assist each Issuer in obtaining performance by each purchaser whose
offer to purchase Securities from such Issuer was solicited by such Agent and
has been accepted by such Issuer, but such Agent shall not have any liability to
such Issuer or the Guarantor in the event such purchase is not consummated for
any reason. If any of the Issuers shall default on its obligation to deliver
Securities to a purchaser whose offer it has accepted, such Issuer and the
Guarantor shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by such Issuer or the Guarantor and
(ii) notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
IX.
The respective indemnities, agreements, representations, warranties and
other statements of the Agents, the Issuers and the Guarantor contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement or any applicable Terms Agreement, (ii) any
investigation made by or on behalf of any Agent or any person controlling any
Agent or by or on behalf of any of the Issuers, the Guarantor, their respective
officers or directors or any other person controlling the Issuers or the
Guarantor and (iii) acceptance of and payment for any of the Securities.
- 33 -
X.
The provisions of this Agreement authorizing the solicitation of offers
to purchase Securities from any of the Issuers may be suspended or terminated at
any time by such Issuer and the Guarantor as to any Agent or by any Agent upon
the giving of written notice of such suspension or termination to such Agent or
such Issuer, as the case may be. In the event of such suspension or termination
with respect to any Agent, (x) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (y) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously accrued
or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination and
(z) in any event, this Agreement shall remain in full force and effect insofar
as the fourth paragraph of Section II(a) with respect to solicitations made
prior to such suspension or termination, Section V(e), Section V(m), Section
VII, Section VIII and Section IX are concerned.
XI.
Except as otherwise specifically provided herein or in the Procedures,
all statements, requests, notices and advices hereunder shall be in writing, or
by telephone if promptly confirmed in writing, and if to Xxxxxx Xxxxxxx shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager,
Credit Department (telefax: 212-703-4575) with a copy to 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Managing Director, Debt Syndicate (telefax:
212-764-7490); if to Xxxxxxx, Sachs & Co., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Medium Term Note Department (telefax: 212-816-5831); if
to Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Fixed Income Syndicate/Medium Term Note Desk (telefax: 212-526-0943);
if to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 000 Xxxxx Xxxxxx,
World Financial Tower (North Tower), 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Transaction Management Group; if to X.X. Xxxxxx Securities Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MTN Trading Desk (telefax:
212-834-6081); if to Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Medium-Term Note Department (telefax:
212-816-0949); and if to Diageo Capital plc, Diageo Finance B.V., Diageo
Investment Corporation or Diageo plc, 0 Xxxxxxxxx Xxxxx, Xxxxxx X0X 0XX,
Attention: Company Secretary (telefax: 011-44-20-7927-4637).
XII.
This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, the parties hereto or thereto, respectively, and to
the extent provided in Section VII and Section VIII hereof, the officers and
directors of each of the Issuers and the Guarantor and any person who controls
any Agent or any of the Issuers or the Guarantor, and their respective personal
representatives, successors and assigns, and
- 34 -
no other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities through
or from any Agent hereunder shall be deemed a successor or assign by reason
merely of such purchase.
XIII.
Each of the Scottish Issuer, the Dutch Issuer and the Guarantor has
appointed Diageo North America, Inc. as its authorized agent (the "Authorized
Agent") upon which process may be served in any action based on this Agreement
that may be instituted in any state or federal court in the City, County and
State of New York by any Agent or by any person controlling any Agent, and
expressly accepts the jurisdiction of any such court in respect of such action.
Unless otherwise agreed by the Agents and their counsel, such appointment shall
be irrevocable for a period of three years from and after the completion of sale
of all the Securities unless and until a successor Authorized Agent shall be
appointed and such successor shall accept such appointment for the remainder of
such three-year period. Each of the Scottish Issuer, the Dutch Issuer and the
Guarantor represents to each of the Agents that it has notified the Authorized
Agent of such designation and appointment and that Authorized Agent has accepted
the same in writing. The Scottish Issuer, the Dutch Issuer and the Guarantor
will take any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment or appointments
in full force and effect as aforesaid. Service of process upon the Authorized
Agent and written notice of such service to the Scottish Issuer, the Dutch
issuer or the Guarantor (mailed or delivered as aforesaid) shall be deemed, in
every respect, effective service of process upon the Scottish Issuer, the Dutch
Issuer or the Guarantor (as the case may be). Notwithstanding the foregoing, any
action based on this Agreement may be instituted by any Agent against the
Scottish Issuer, the Dutch Issuer or the Guarantor in any competent court in
Scotland, the Netherlands or England and Wales (as the case may be).
XIV.
Time shall be of the essence in this Agreement and any Terms Agreement.
As used herein, the term "business day" shall mean any day when the office of
the Commission in Washington, D.C. is normally open for business and when
banking institutions are not generally authorized or required by law or
regulation to close in London.
XV.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
XVI.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
- 35 -
If the foregoing is in accordance with your understanding, please sign
and return to us ten counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
each of the Issuers and the Guarantor and each of you in accordance with its
terms.
Very truly yours,
DIAGEO CAPITAL PLC
By /s/ X.X. Xxxx
-----------------------------------
Name X.X. Xxxx
Title Director
DIAGEO FINANCE B.V.
By /s/ D.M.F. Xxxxx
-----------------------------------
Name D.M.F. Xxxxx
Title Director
By /s/ M.C.T.M. Gerichhausen
-----------------------------------
Name M.C.T.M. Gerichhausen
Title Director
DIAGEO INVESTMENT CORPORATION
By /s/ Aren Xxxxx
-----------------------------------
Name Aren Xxxxx
Title Director
DIAGEO PLC
By /s/ N.C. Rose
-----------------------------------
Name N.C. Rose
Title Finance Director
- 36 -
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
XXXXXXX, SACHS & CO.
By /s/ Xxxxxxx, Xxxxx & Co.
----------------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
- 37 -
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxx X. Xxxxxxx Xx.
------------------------------------------
Name: Xxxx X. Xxxxxxx Xx.
Title: Vice President
CITIGROUP GLOBAL MARKETS INC.
By /s/ Xxxxxx Xxxxxx
------------------------------------------
Name:/ Xxxxxx Xxxxxx
Title: Senior Vice President
- 38 -
Annex I
[DIAGEO CAPITAL PLC]
[DIAGEO FINANCE B.V.]
[DIAGEO INVESTMENT CORPORATION]
Up to U.S.[$2,000,000,000]
MEDIUM-TERM NOTES
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
DIAGEO PLC
TERMS AGREEMENT
Date: ___________
[Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx, 00xx Xxxxx
World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
Ladies and Gentlemen:
[Diageo Capital plc] [Diageo Finance B.V.] [Diageo Investment
I-1
Corporation] (the "Issuer") and Diageo plc (the "Guarantor") propose, subject to
the terms and conditions stated herein and in the Amended and Restated
Distribution Agreement, dated December 8, 2003 (the "Distribution Agreement"),
among the Issuer, the Guarantor and the other issuer thereunder on the one hand
and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co., Xxxxxx Brothers
Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities
Inc. and [Citigroup Global Markets Inc.] (the "Agents") on the other, to issue
and sell to [purchasers] the securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the Distribution Agreement
not specifically related to the solicitation by the Agents, as agents of the
Issuer and the Guarantor, of offers to purchase Securities is incorporated
herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein, and each capitalized term herein that is not defined herein and is
defined in the Distribution Agreement shall have the meaning set forth in the
Distribution Agreement. Nothing contained herein or in the Distribution
Agreement shall make any party hereto an agent of the Issuer or the Guarantor or
make such party subject to the provisions therein relating to the solicitation
of offers to purchase securities from the Issuer, solely by virtue of its
execution of this Terms Agreement. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of
this Terms Agreement, except that each representation and warranty in Section I
of the Distribution Agreement which makes reference to the Prospectus shall be
deemed to be a representation and warranty as of the date of the Distribution
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Terms Agreement in relation
to the Prospectus as amended and supplemented to relate to the Purchased
Securities.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Purchased 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 provisions of the Distribution Agreement incorporated herein by reference,
the Issuer agrees to issue and sell to [purchasers], and [each severally]
agree[s] to purchase from the Issuer, the Purchased Securities, at the time and
place, in the principal amount and (notwithstanding the commission schedule set
forth in the Distribution Agreement) at the purchase price set forth in the
Schedule hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us _______ counterparts hereof, whereupon this letter,
including those provisions of the Distribution Agreement incorporated herein by
reference, and the acceptance by [each of] you thereof shall constitute a
binding agreement between [each of] you and the Issuer and the Guarantor.
I-2
[DIAGEO CAPITAL PLC]
[DIAGEO FINANCE B.V.]
[DIAGEO INVESTMENT CORPORATION]
By:
-----------------------------------
Name:
Title:
[By:
-----------------------------------
Name:
Title:]
DIAGEO PLC
By:
-----------------------------------
Name:
Title:
I-3
Accepted:
[XXXXXX XXXXXXX & CO. INCORPORATED
By
----------------------------------------
Name:
Title:]
[XXXXXXX, SACHS & CO.
By
----------------------------------------
Name:
Title:]
[XXXXXX BROTHERS INC.
By
----------------------------------------
Name:
Title:]
[XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By
----------------------------------------
Name:
Title:]
I-4
[X.X. XXXXXX SECURITIES INC.
By
----------------------------------------
Name:
Title:]
[CITIGROUP GLOBAL MARKETS INC.
By
----------------------------------------
Name:
Title:]
I-5
Schedule to Annex I
Issuer of Purchased Securities:
Title of Purchased Securities:
[ %] Medium-Term Notes, Due [ ]
Aggregate Principal Amount:
[U.S. $ or units of other specified currency]
[Price to Public:]
Purchase Price by:
[Purchasers and Amounts for Each]
[ %] of the principal amount of the Purchased Securities [, plus
accrued interest from to ] [and accrued
amortization if any, from to ]
Method of and Specified Funds for Payment of Purchase Price:
[By wire transfer to a bank account specified by the Issuer in
immediately available funds]
Indenture:
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[If fixed: [ %] per annum]
[If floating, state formula]
Interest Payment Dates:
each [months and dates], commencing [date]
Interest Accrual Date:
I-6
Settlement:
[book entry] [certified form]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the closing:
[(1) The reliance letter or opinion or opinions of counsel to
the Agents referred to in Section V(h).]
[(2) The reliance letter or opinion of counsel to the Issuers
and the Guarantor referred to in Section V(i)(A).]
[(3) The reliance letter or opinion of counsel to the
Guarantor referred to in Section V(i)(B).]
[(4) The reliance letter or opinion of counsel to the Scottish
Issuer and the Guarantor referred to in Section V(i)(C).]
[(5) The reliance letter or opinion of counsel to the Dutch
Issuer and the Guarantor referred to in Section V(i)(D).]
[(6) The accountants' letter referred to in Section V(j).]
[(7) The officers' certificate or certificates referred to in
Section V(k).]
Other Provisions (including Book-Entry Depositary and syndicate provisions, if
applicable):
[If Diageo Finance B.V.: Appropriate Dutch selling restriction.]
I-7
Annex II
Administrative Procedures
These Procedures relate to the Securities defined in the Amended and
Restated Distribution Agreement, dated December 8, 2003 (the "DISTRIBUTION
AGREEMENT"), among Diageo Capital plc (the "SCOTTISH ISSUER"), Diageo Finance
B.V. (the "DUTCH ISSUER"), Diageo Investment Corporation (the "U.S. ISSUER")
(each of the Scottish Issuer and the U.S. Issuer being referred to herein as an
"ISSUER" and, together, the "ISSUERS"), Diageo plc (the "GUARANTOR") and Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co., Xxxxxx Brothers Inc., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc. and
Citigroup Global Markets Inc. (together, the "AGENTS"), to which these
Procedures are attached as Annex II.
Defined terms used herein and not defined herein shall have the
meanings given such terms in the Distribution Agreement, in the Prospectus (as
defined in the Distribution Agreement) as amended or supplemented or in the
Indentures (as defined in the Distribution Agreement).
The procedures to be followed with respect to the settlement of sales
of Securities directly by either of the Issuers to purchasers solicited by an
Agent, as agent, are set forth below. The terms and settlement details related
to a purchase of Securities by an Agent, as principal, from either of the
Issuers will be set forth in a Terms Agreement pursuant to the Distribution
Agreement, unless such Issuer, the Guarantor and such Agent otherwise agree as
provided in Section II(b) of the Distribution Agreement, in which case the
procedures to be followed in respect of the settlement of such sale will be as
set forth below. An Agent, in relation to a purchase of a Security by a
purchaser solicited by such Agent, is referred to herein as the "SELLING AGENT"
and, in relation to a purchase of a Security by such Agent as principal other
than pursuant to a Terms Agreement, as the "PURCHASING AGENT".
Each of the Issuers will advise each Agent in writing of those persons
with whom such Agent is to communicate regarding offers to purchase Securities
and the related settlement details.
Each Security will be represented by a global security in registered
form (each a "GLOBAL Security") or by a certificate issued in definitive
registered form (a "CERTIFICATED SECURITY"). Each Security will be authenticated
by the Trustee, pursuant to the terms if the Indentures. Thereafter,
o if the Security is a Global Security in registered form, it will
be delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded, in the book-entry system maintained
by DTC (and as so recorded, is referred to herein as a "BOOK-ENTRY
SECURITY"); and
o if the Security is a Certificated Security, it will be delivered
to a person
II-1
designated by an Agent, as set forth in the applicable Pricing
Supplement.
An owner of a Book-Entry Security will not be entitled to receive a
certificate representing such a Security, except as provided in the Indentures.
Each Global Security of the Scottish Issuer or the Dutch Issuer shall
be listed by the Scottish Issuer or the Dutch Issuer, as applicable, on The New
York Stock Exchange (the "NYSE") or any other internationally recognized stock
exchange that is recognized within the meaning of Section 841 of the United
Kingdom Income and Corporation Taxes Xxx 0000, as amended (or any successor
provision thereto). The Scottish Issuer and the Dutch Issuer have executed and
delivered an application to list the Securities on the NYSE and such application
has been approved by the NYSE, subject to the condition that the Securities
represented by each Global Security must meet the NYSE's listing requirements,
including a minimum principal amount requirement, which, as of the date of the
Distribution Agreement is U.S.$5,000,000. The procedures for effecting the
listing of each Global Securities are described below.
Part I hereof contains procedures applicable to both Certificated
Securities and Book-Entry Securities. Certificated Securities will be issued in
accordance with the further procedures set forth in Part II hereof, and
Book-Entry Securities will be issued in accordance with the further procedures
set forth in Part III hereof.
I. Procedures Generally Applicable
Posting Rates by Issuer:
Each of the Issuers and the Agents will discuss from time to time the
rates of interest per annum to be borne by and the maturity of Securities that
may be sold as a result of the solicitation of offers by an Agent. Each of the
Issuers may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If an Issuer decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Issuer:
Subject to Section IV(b) of the Distribution Agreement, each Agent will
promptly advise the applicable Issuer by telephone or other appropriate means of
all reasonable offers to purchase Securities, other than those rejected by such
Agent. Each Agent may, in its discretion reasonably exercised, reject any offer
received by it in whole or in part. Each Agent also may make offers to either of
the Issuers to purchase Securities as a Purchasing Agent. Each Issuer will have
the sole right to accept offers to purchase Securities and may reject any such
offer in whole or in part.
The applicable Issuer will promptly notify the Selling Agent or
Purchasing Agent, as the case may be, of its acceptance or rejection of an offer
to purchase Securities. If such Issuer accepts an offer to purchase Securities,
it and the Guarantor will confirm such acceptance in writing to the Selling
Agent or Purchasing Agent, as the case may be, and
II-2
will promptly notify the Trustee and (in the case of an acceptance by the
Scottish Issuer that will result in the issuance of a Scottish Book-Entry
Security and in the case of an acceptance by the Dutch Issuer that will result
in a Dutch Book-Entry Security) the Book-Entry Depositary, with written
confirmation following thereafter.
Communication of Sale Information to Issuer by Selling Agent:
After the acceptance of an offer by either of the Issuers and the
Guarantor, the Selling Agent or Purchasing Agent, as the case may be, will
communicate the following details of the terms of such offer (the "Sale
Information") to such Issuer by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means:
(1) Principal amount of Securities to be purchased;
(2) If a Fixed Rate Security, the interest rate and the initial
Interest Payment Date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the Exchange Rate Agent;
(5) Index Currency, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(8) Net proceeds to the Issuer;
(9) Settlement Date;
(10) If a redeemable Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of
the Redemption Commencement Date, and
(iv) Other applicable provisions;
(11) If a Floating Rate Security, such of the following as are
applicable:
(i) Base Rate,
II-3
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates with respect to Securities
issued by the U.S. Issuer,
(xii) Calculation Agent, and
(xiii) Reporting Service, Designated LIBOR Telerate Page,
Designated CMT Telerate Page or Designated Telerate
Maturity Index, if applicable;
(12) If the amount of principal and/or interest payable on a
Security will be determined by reference to an index or
formula, a full description of such index or formula and all
other applicable terms;
(13) If an Original Issue Discount ("OID") Security:
(i) Total Amount of OID,
(ii) Yield to Maturity, and
(iii) Initial Accrual Period OID;
(14) Name, address and taxpayer identification number of the
registered owners, if applicable;
(15) Denomination of certificates to be delivered at settlement;
(16) Book-Entry Security or Certificated Security; and
(17) Such other terms as are necessary to complete the applicable
terms of the Security.
II-4
Preparation of Pricing Supplement by Issuer:
If either of the Issuers accepts an offer to purchase a Security, it
will prepare a Pricing Supplement, substantially in the form attached hereto,
along with a transmittal letter, as Annex II-A (Annex II-A-1 in respect of Fixed
Rate Securities and Annex II-A-2 in respect of Floating Rate Securities). Such
Issuer will supply at least one copy of such Pricing Supplement to each
applicable Selling Agent or Purchasing Agent, as the case may be, not later than
5:00 p.m., New York City time, on the business day following the date of
acceptance of such offer, or if such Issuer and the purchaser agree to
settlement on the date of such acceptance, not later than Noon, New York City
time, on such date. Such Issuer will arrange to have ten Pricing Supplements
filed with the Commission in accordance with the applicable paragraph of Rule
424(b) under the Securities Act.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will promptly deliver to the purchaser of a Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Security prior to or together with the earlier of the delivery
to such purchaser or its agent of (a) the confirmation of sale or (b) the
Security.
II. Procedures Applicable to Certificated Securities
Date of Settlement
All offers solicited by a Selling Agent or made by a Purchasing Agent
and accepted by either of the Issuers will be settled on a date (the "Settlement
Date") which is the third business day after the date of acceptance of such
offer (or the fourth business day thereafter, if on the date of acceptance such
acceptance is made after 4:30 p.m., New York City time), unless such Issuer and
the purchaser agree to settlement (a) on any other business day after the
acceptance of such offer or (b) with respect to an offer accepted by such Issuer
prior to 10:00 a.m., New York City time, on the date of such acceptance.
Instruction from Issuer to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the applicable Issuer will communicate
such Sale Information (together with the name of the Selling Agent or Purchasing
Agent, as applicable) to the Trustee by telephone (confirmed in writing by such
Issuer and the Guarantor) or, in conjunction with the Guarantor, by facsimile
transmission or other acceptable written means.
Such Issuer and the Guarantor will instruct the Trustee by facsimile
transmission or other acceptable written means to authenticate and deliver the
Certificated Securities no later than 2:15 p.m., New York City time, on the
Settlement Date. Such instruction will be given by such Issuer and the Guarantor
prior to 3:00 p.m., New York City time,
II-5
on the business day prior to the Settlement Date unless the Settlement Date is
the date of acceptance by such Issuer of the offer to purchase Certificated
Securities in which case such instruction will be given by such Issuer by 11:00
a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser
solicited by an Agent, the Trustee will, by 2:15 p.m., New York City time, on
the Settlement Date, deliver the securities to the Selling Agent for the benefit
of the purchaser of such Certificated Securities against delivery by the Selling
Agent of a receipt therefor. On the Settlement Date the Selling Agent will
deliver payment for such Certificated Securities in immediately available funds
to such Issuer in an amount equal to the issue price of the Certificated
Securities less the Selling Agent's commission; provided that the Selling Agent
reserves the right to withhold payment for which it has not received funds from
the purchaser. Such Issuer shall not use any proceeds advanced by a Selling
Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent,
the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date,
deliver the certificated Securities to the Purchasing Agent against delivery of
payment for such Certificated Securities in immediately available funds to such
Issuer in an amount equal to the issue price of the Certificated Securities less
the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the applicable Issuer thereof by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means. The
Selling Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, such
Issuer will return to the Selling Agent an amount equal to the amount previously
paid to such Issuer in respect of such Certificated Security. If such failure
shall have occurred for any reason other than default by the Selling Agent to
perform its obligations hereunder or under the Distribution Agreement, such
Issuer will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of
such Issuer, provided that the Selling Agent promptly notifies such Issuer that
such reimbursement is due and provided further that the Selling Agent reimburses
such Issuer for any amounts previously paid to the Selling Agent by such Issuer
for such loss of use of funds if the Selling Agent is also so reimbursed by such
purchaser for such loss of use of funds.
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by such
II-6
Issuer, destroy the Certificated Security.
III. Procedures Applicable to Book-Entry Securities
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the U.S. Issuer and the Trustee to DTC, dated as of March 26, 2002 (the
"U.S. LETTER OF REPRESENTATIONS"), a Letter of Representations from the Scottish
Issuer and the Trustee to DTC, dated as of March 26, 2002 (the "SCOTTISH LETTER
OF REPRESENTATIONS") and a letter of Representations from the Dutch Issuer and
the Trustee to DTC, dated as of o, 2003 (the "DUTCH LETTER OF REPRESENTATIONS"),
as well as under a Medium-Term Note Certificate Agreement between the Trustee
and DTC, dated as of October 31, 1988 (the "CERTIFICATE AGREEMENT"), and the
Trustee's obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System.
Settlement Procedures
After the acceptance of an offer by either of the Issuers and the
Guarantor, the Selling Agent or Purchasing Agent, as the case may be, will
communicate promptly, but in no event later than 3:00 p.m. New York City time on
the business day following the acceptance of an offer by the applicable Issuer
or 10:00 a.m. on the business day prior to the settlement date whichever is
earlier, the Sale Information to such Issuer by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means.
A. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, the applicable Issuer and the Guarantor will communicate such
Sale Information (together with the name of the Selling Agent or Purchasing
Agent, as applicable) to the Trustee by facsimile transmission or other
acceptable written means. The Trustee will assign a CUSIP number to the Global
Security from a list of CUSIP numbers previously delivered to the Trustee by
such Issuer representing such Book-Entry Security and then advise such Issuer
and the Selling Agent or Purchasing Agent, as the case may be, of such CUSIP
number.
B. If applicable, the Scottish Issuer shall file with the Commission a
registration statement on Form 8-A, substantially in the form attached hereto,
relating to the Securities represented by such Global Security. The Scottish
Issuer shall copy the applicable Agents on such application and on all
correspondence with the Commission relating to such registration statement. The
parties agree that there shall be no settlement with respect to such Global
Security prior to such registration statement becoming effective pursuant to the
regulations of the Commission.
C. If applicable, the Dutch Issuer shall file with the Commission a
registration statement on Form 8-A, substantially in the form attached hereto,
relating to the Securities represented by such Global Security. The Dutch Issuer
shall copy the
II-7
applicable Agents on such application and on all correspondence with the
Commission relating to such registration statement. The parties agree that there
shall be no settlement with respect to such Global Security prior to such
registration statement becoming effective pursuant to the regulations of the
Commission.
In the case of a Global Security issued by the Scottish Issuer or the
Dutch Issuer, the Scottish Issuer or the Dutch Issuer, as applicable, shall send
to the NYSE a copy of the Pricing Supplement and the Form 8-A relating to the
Securities represented by each Global Security in order to effect the listing of
such Securities on the NYSE. The relevant Issuer may also execute and deliver an
application to list the Securities represented by such Global Security on
another internationally recognized stock exchange that is recognized within the
meaning of Section 841 of the United Kingdom Income and Corporation Taxes Xxx
0000, as amended (or any successor provision thereto). To be eligible for
listing on The New York Stock Exchange, the Securities represented by such
Global Security must meet such exchange's listing requirements, including a
minimum principal amount requirement, which, as of the date of the Distribution
Agreement, is U.S.$5,000,000. The Scottish Issuer or the Dutch Issuer, as
applicable, shall copy the applicable Agents on such application and on all
correspondence with the relevant stock exchange relating to such application,
including the listing approval by such stock exchange. The parties agree that
there shall be no settlement with respect to such Global Security prior to the
relevant stock exchange approving such listing subject only to official notice
of issuance.
D. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement information to
DTC and DTC shall forward such information to such Agent:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) Number of participant accounts maintained by DTC on behalf of
the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period;
(6) Initial Interest Payment Date for such Book-Entry Security,
the number of days by which such date succeeds the record date
for DTC's purposes (which, in the case of Floating Rate
Securities which reset daily or weekly, shall be the date five
calendar days immediately preceding the applicable Interest
Payment Date and in the case of all other Book-Entry
Securities shall be the Regular Record Date, as defined in the
Security) and, if calculable at that time, the amount of
interest payable on such Interest
II-8
Payment Date; and
(7) Whether such Security is an amortizing Security (by an
appropriate notation in the comments field of DTC's
Participant Terminal System).
The Trustee shall additionally inform DTC as to whether the Book-Entry
Security is being submitted to DTC pursuant to the U.S. Letter of
Representations (relating to Global Securities issued by the U.S. Issuer), the
Scottish Letter of Representations (relating to Global Securities issued by the
Scottish Issuer) or the Dutch Letter of Representations (relating to the Global
Securities issued by the Dutch Issuer)).
E. The Trustee will complete and authenticate the Global Security
previously delivered by such Issuer representing such Book-Entry Security.
F. DTC will credit such Book-Entry Security to the Trustee's
participant account at DTC.
G. The Trustee will enter a Same Day Funds Settlement System ("SDFS")
deliver order through DTC's Participant Terminal System instructing DTC to (i)
debit such Book-Entry Security to the Trustee's participant account and credit
such Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the Trustee to DTC that (a) the Global Security representing
such Book-Entry Security has been issued and authenticated and (b) the Trustee
is holding such Global Security pursuant to the Certificate Agreement.
H. Such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Book-Entry
Security to such Agent's participant account and credit such Book-Entry Security
to the participant accounts of the relevant participants with respect to such
Book-Entry Security and (ii) to debit the settlement accounts of such relevant
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
J. Upon confirmation of receipt of funds, the Trustee will transfer to
the account of such Issuer maintained at the Trustee, New York, New York, or
such other account as such Issuer may have previously specified to the Trustee,
funds available for immediate use in the amount transferred to the Trustee in
accordance with Settlement Procedure "F".
K. Upon request, the Trustee will send to such Issuer a statement
setting forth the principal amount of Book-Entry Securities outstanding as of
that date under the
II-9
Indentures.
L. Such Agent will confirm the purchase of such Book-Entry Security to
the purchaser either by transmitting to the relevant participants with respect
to such Book-Entry Security a confirmation order or orders through DTC's
institutional delivery system or by mailing a written confirmation to such
purchaser.
M. DTC will at any time, upon request of such Issuer or the Trustee,
promptly furnish to the Issuer or the Trustee a list of the names and addresses
of the participants for whom DTC has credited Book-Entry Securities.
Date of Settlement:
The receipt by the applicable Issuer of immediately available funds in
payment for a Book-Entry Security and the authentication and issuance of the
Global Security representing such Book-Entry Security shall constitute
"settlement" with respect to such Book-Entry Security. All offers accepted by
such Issuer will be settled on the third business day (or the fourth business
day if on the date of acceptance such acceptance is made after 4:30 p.m. New
York City time) pursuant to the timetable for settlement set forth below unless
such Issuer and the purchaser agree to settlement on another day which shall be
no earlier than the next business day.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by an Agent, as agent,
and accepted by the applicable Issuer for settlement on the first business day
after the sale date, Settlement Procedures "A" through "I" set forth above shall
be completed as soon as possible but not later than the respective times (New
York City time) set forth below:
SETTLEMENT
PROCEDURE TIME
--------- ----
A 12:00 noon on the sale date
B 2:00 p.m. on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F 2:00 p.m. on settlement date
G-H 4:45 p.m. on settlement date
I 5:00 p.m. on settlement date
If a sale is to be settled more than one business day after the sale
date, Settlement Procedures "A", "B" and "C" shall be completed as soon as
practicable but not later than
II-10
2:00 p.m. on the first business day after the sale date. If the initial interest
rate for a Floating Rate Book-Entry Security has not been determined at the time
that the Selling Agent or Purchasing Agent, as the case may be, communicates the
Sale Information to the applicable Issuer, Settlement Procedures "A", "B" and
"C" shall be completed as soon as such rate has been determined but no later
than 2:00 p.m. on the business day after the sale date. Settlement Procedure "H"
is subject to extension in accordance with any extension of fedwire closing
deadlines and in the other events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to DTC, through DTC's
Participation Terminal System, a cancellation message to such effect by no later
than 2:00 p.m. New York City time on the business day immediately preceding the
scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to DTC, through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit such Book-Entry
Security to the Trustee's participant account, provided that the Trustee's
participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
xxxx such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in DTC, acting
on behalf of such purchaser), such participants and, in turn, the Agent for such
Book-Entry Security may enter deliver orders through DTC's Participant Terminal
System debiting such Book-Entry Security to such participant's account and
crediting such Book-Entry Security to such Agent's account and then debiting
such Book-Entry Security to such Agent's participant account and crediting such
Book-Entry Security to the Trustee's participant account and shall notify the
applicable Issuer and the Trustee thereof. Thereafter, the Trustee will (i)
immediately notify such Issuer of such order and such Issuer shall transfer to
such Agent funds available for immediate use in an amount equal to the price of
such
II-11
Book-Entry Security which was credited to the account of such Issuer maintained
at the Trustee in accordance with Settlement Procedure "I", and (ii) deliver the
withdrawal message and take the related actions described in the preceding
paragraph. If such failure shall have occurred for any reason other than default
by the applicable Agent to perform its obligations hereunder or under the
Distribution Agreement, such Issuer will reimburse such Agent on an equitable
basis for the loss of its use of funds during the period when the funds were
credited to the account of such Issuer.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Securities to have been
represented by a Global Security, the Trustee will provide, in accordance with
Settlement Procedure "D", for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records.
The Issuers will, from time to time, furnish the Trustee with a
sufficient quantity of Securities.
II-12
Pricing Supplement No. Dated
Rule 424(b)[(2)]
(To Prospectus dated December 8, 2003 and
File No. 333-110804
Prospectus Supplement dated December 8, 2003) CUSIP:
Diageo [Capital plc/Finance B.V./Investment Corporation]
Medium-Term Notes - Fixed Rate
--------------------------------------------------------------------------------
Principal Amount: Interest Rate:
Agents Discount or Commission: Stated Maturity Date:
Nets Proceeds to Issuer: Issue Date:
--------------------------------------------------------------------------------
Interest Payment Dates:
Redemption:
[ ] The Notes cannot be redeemed prior to the Stated Maturity Date,
[ ] The Notes may be redeemed prior to the Stated Maturity Date.
Redemption Commencement Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction: % until Redemption Percentage is
100% of the principal amount.
Optional Repayment:
[ ] The Notes cannot be repaid prior to the Stated Maturity Date
[ ] The Notes can be repaid prior to the Stated Maturity Date at the option of
the holder of the Notes.
Option Repayment Dates:
Repayment Price: %
Currency:
Specified Currency: Exchange Rate Agent: Citibank, N.A.
Minimum Denominations:
Original Issue Discount: [ ] Yes [ ] No
Total Amount of OID: Yield to Maturity:
Initial Accrual Period:
Form: [X] Book-Entry [ ] Certificated
Agent: [ ] [Xxxxxx Xxxxxxx & Co. Incorporated]
[ ] Other
Agent acting in the capacity as indicated below:
[ ] Agent [ ] Principal
If as principal:
[ ] The Notes are being offered at varying prices related to
prevailing market prices at the time of resale.
[ ] The Notes are being offered at a fixed initial public offering
price of % of principal amount.
If as Agent:
The Notes are being offered at a fixed initial public offering price of
% of Principal Amount.
Trustee: Citibank, N.A.
Other Provisions: [If Diageo Finance B.V.: Appropriate Dutch selling
restriction.]
Terms not defined above have the meanings given to such terms in the
Prospectus Supplement, dated December 8, 2003.
II-13
Pricing Supplement No. Dated
Rule 424(b) [(2)]
(To Prospectus dated December 8, 2003 and
File No. 333-110804
Prospectus Supplement dated December 8, 2003) CUSIP:
Diageo [Capital plc/Finance B.V./Investment Corporation]
Medium-Term Notes - Floating Rate
--------------------------------------------------------------------------------
Principal Amount: Initial Interest Rate:
Agent's Discount or Commission: Original Issue Date:
Net Proceeds to Issuer: Stated Maturity Date:
--------------------------------------------------------------------------------
Calculation Agent: Citibank, N.A. Calculation Dates:
Interest Rate Basis:
[ ] CD Rate [ ] EURIBOR [ ] Prime Rate
[ ] CMT Rate [ ] Federal Funds Rate [ ] Treasury Rate
[ ] Commercial Paper Rate [ ] LIBOR [ ] Other (see attached)
If LIBOR, Designated LIBOR Page: [ ] LIBOR Reuters, Reuters Page:
[ ] LIBOR Moneyline Telerate,
Moneyline Telerate Page:
If CMT Rate, Designated CMT Maturity Index:
Designated CMT Moneyline Telerate Page:
Interest Reset Dates: Spread (+/-)
Interest Reset Period: Spread Multiplier:
Interest Payment Dates: Maximum Interest Rate:
Index Maturity: Minimum Interest Rate:
Index Currency: Interest Determination Dates:
Redemption:
[ ] The Notes cannot be redeemed prior to the Stated Maturity Date.
[ ] The Notes may be redeemed prior to Stated Maturity Date.
Redemption Commencement Date:
Initial Redemption Percentage: %
Annual Redemption Percentage Reduction: % until Redemption
Percentage is 100% of the Principal Amount.
Repayment:
[ ] The Notes cannot be repaid prior to the Stated Maturity Date.
[ ] The Notes can be repaid prior to the Stated Maturity Date at the option
of the holder of the Notes.
Optional Repayment Date(s):
Repayment Price: %
Currency:
Specified Currency: Exchange Rate Agent: Citibank, N.A.
Minimum Denominations:
Original Issue Discount: [ ] Yes [ ] No
Total Amount of OID: Yield to Maturity:
Initial Accrual Period:
Form: [X] Book-Entry [ ] Certificated
Agent: [ ] [Xxxxxx Xxxxxxx & Co. Incorporated]
[ ] Other
II-14
Agent acting in the capacity as indicated below:
[ ] Agent [ ] Principal
If as principal:
[ ] The Notes are being offered at varying prices related to prevailing
market prices at the time of resale.
[ ] The Notes are being offered at a fixed initial public offering price of
% of principal amount.
If as Agent:
The Notes are being offered at a fixed initial public offering price of %
of principal amount.
Trustee: Citibank, N.A.
Other Provisions: [If Diageo Finance B.V.: Appropriate Dutch selling
restriction.]
Terms not defined above have the meanings given to such terms in the
Prospectus Supplement, dated December 8, 2003.
II-15
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
[DIAGEO CAPITAL PLC/DIAGEO FINANCE B.V.]
--------------------------------------------------------------------------------
(Exact name of Registrant as Specified in Its Charter)
[Scotland/The Netherlands] None
---------------------------------------- -------------------
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
[Edinburgh Park, 0 Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx] [XX00 0XX]
[Molenwerf 00-00, Xxxxxxxxx, Xxx Xxxxxxxxxxx] [1014 BG]
----------------------------------------------------- ------------
(Address of Principal Executive Office) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form relates:
No. 333-110804 (If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
[ o % Medium-Term Notes due o ] The New York Stock Exchange
================================================================================
Securities to be registered pursuant to Section 12(g) of the Act:
None
--------------------------------------------------------------------------------
(Title of Class)
II-16
INFORMATION REQUIRED IN REGISTRATION STATEMENT
The Registrant has filed with the Securities and Exchange Commission
(the "Commission") pursuant to Rule 424(b) under the Securities Act of 1933
("Rule 424(b)") a pricing supplement dated [o] (the "Pricing Supplement") and a
prospectus supplement dated December 8, 2003 (the "Prospectus Supplement") to
a prospectus dated December 8, 2003 (the "Prospectus"), relating to the
Securities to be registered hereunder included in the Registrant's Registration
Statement on Form F-3 (File No. 333-110804), as amended, declared effective by
the Commission on December 8, 2003. The Registrant incorporates by reference
the Prospectus, the Prospectus Supplement and the Pricing Supplement to the
extent set forth below.
Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Reference is made to the information set forth in the Pricing
Supplement and under the headings "Description of Notes" in the Prospectus
Supplement and "Description of Debt Securities and Guarantees" and "Taxation" in
the Prospectus, which information is incorporated herein by reference.
Item 2. EXHIBITS.
Pursuant to the Instructions as to Exhibits with respect to Form 8-A,
the following exhibits are being filed with the Commission in connection with
this Registration Statement:
(A) Prospectus, Prospectus Supplement and Pricing Supplement
(incorporated herein to the extent provided above by reference
to the Registrant's above-referenced filings with the
Securities and Exchange Commission).
(B) 1.1 [Indenture, among the Registrant, Diageo plc, as
Guarantor (the "Guarantor"), and Citibank, N.A., as
Trustee, dated as of August 3, 1998 (the "Indenture")
(incorporated by reference to Exhibit 4.1 filed in the
Registrant's Registration Statement No. 333-8874)]
[Indenture, among the Registrant, Diageo plc, as
Guarantor (the "Guarantor") and Citibank, N.A., as
Trustee, dated as of December 8, 2003 (the "Indenture")
(incorporated by reference to o ].
1.2 Form of Global Security and Guarantees relating thereto
(included in Exhibit 1.1 hereof).
1.3 Officer's Certificate of the Registrant and the
Guarantor pursuant to Section 301 of the Indenture
setting forth the terms of the Securities.
II-17
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
[Diageo Capital plc] [Diageo Finance B.V.]
(Registrant)
Date: By:
-------------------------------------
Name:
Title:
[Date: By:
-------------------------------------
Name:
Title:]
II-18
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
1.1 [Indenture, among the Registrant, Diageo plc, as Guarantor
(the "Guarantor"), and Citibank, N.A., as Trustee, dated as of
August 3, 1998 (the "Indenture") (incorporated by reference to
Exhibit 4.1 filed in Registrant's Registration Statement No.
333-8874)] [Indenture, among the Registrant, Diageo plc, as
Guarantor (the "Guarantor") and Citibank, N.A., as Trustee,
dated as of December 8, 2003 (the "Indenture") (incorporated
by reference to o)].
1.2 Form of Global Security and Guarantees relating thereto
(included in Exhibit 1.1 hereof).
1.3 Officer's Certificate of the Registrant and the Guarantor
pursuant to Section 301 of the Indenture setting forth the
terms of the Securities.
II-19
Annex III
Form of Dealer Accession Agreement
[Date]
[Name of Dealer]
[Address]
Re: Diageo Capital plc, Diageo Finance B.V. and Diageo Investment Corporation -
Medium-Term Notes Program
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Distribution
Agreement, dated December 8, 2003 (the "Distribution Agreement"), among Diageo
Capital plc ("Diageo Capital"), Diageo Finance B.V. ("Diageo Finance") and
Diageo Investment Corporation ("Diageo Investment", and together with Diageo
Capital and Diageo Finance, the "Issuers"), Diageo plc (the "Guarantor"), on the
one hand, and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co., Xxxxxx
Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx
Securities Inc. and Citigroup Global Markets Inc. (the "Agents"), on the other,
in connection with the issue and sale of the Issuers' Medium-Term Notes Due 18
Months to 30 Years from Date of Issue (the "Securities") guaranteed as to
payment of principal, premium (if any) and interest by the Guarantor. A copy of
the Distribution Agreement has been previously delivered to you and, to the
extent applicable, the provisions thereof are incorporated by reference herein
and deemed to be part of this Agreement to the same extent as if such provisions
had been set forth in full herein.
Also, copies of the following additional documents have been delivered
to you:
(1) the [U.S.] [Dutch] [Scottish] Indenture, as amended or
supplemented as of the date hereof;
(2) the Prospectus as amended or supplemented as of the date
hereof, in such numbers of copies as you have reasonably requested; and
(3) a copy of each of the most recently delivered documents
referred to in Section VI of the Distribution Agreement.
In accordance with Section II of the Distribution Agreement we hereby
confirm that, with effect from the date hereof, you shall become a party to the
Distribution Agreement and shall be entitled to all the rights and the benefits
of the Distribution Agreement (including the benefits of any Term Agreement
attached thereto) to the same
III-1
extent and on the same terms as if you were originally appointed as an Agent
pursuant to the Distribution Agreement. You agree that, with effect from the
date hereof, you shall be subject to all the obligations of an Agent under the
Distribution Agreement.
Terms used but not defined herein shall have the meaning assigned to
them in the Distribution Agreement.
This Agreement is governed by, and shall be construed in accordance
with, New York law.
Please confirm your acceptance of the foregoing by signing this letter
and returning it to us, whereupon this letter, including those provisions of the
Distribution Agreement incorporated by reference herein, shall constitute a
binding agreement between you and [Diageo Investment], [Diageo Finance], [Diageo
Capital] and the Guarantor.
[DIAGEO INVESTMENT CORPORATION]
By:_____________________________
Name:
Title:
[DIAGEO FINANCE B.V.]
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
[DIAGEO CAPITAL PLC]
By:_____________________________
Name:
Title:
[DIAGEO PLC]
By:_____________________________
Name:
Title:
III-2
Agreed as of the date first above written:
[DEALER]
By:________________________________
cc: [TRUSTEE]
III-3
Annex IV
Form of One-Time Appointment Agreement
[Date]
[Name of Dealer]
[Address]
Re: [Diageo Investment Corporation] [Diageo Finance B.V.] [Diageo Capital plc] -
o Medium-Term Notes due o (the "Notes")
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Distribution
Agreement, dated December 8, 2003 (the "Distribution Agreement"), among Diageo
Capital plc ("Diageo Capital"), Diageo Finance B.V. ("Diageo Finance") and
Diageo Investment Corporation ("Diageo Investment", and together with Diageo
Capital and Diageo Finance, the "Issuers"), Diageo plc (the "Guarantor"), on the
one hand, and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co., Xxxxxx
Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx
Securities Inc. and Citigroup Global Markets Inc. (the "Appointed Agents"), on
the other, in connection with the issue and sale of the Issuers' Medium-Term
Notes Due 18 Months to 30 Years from Date of Issue (the "Securities") guaranteed
as to payment of principal, premium (if any) and interest by the Guarantor. For
purposes of this Agreement, the Securities include the Notes. A copy of the
Distribution Agreement has been previously delivered to you and, to the extent
applicable, the provisions thereof are incorporated by reference herein and
deemed to be part of this Agreement to the same extent as if such provisions had
been set forth in full herein.
Also, copies of the following additional documents have been delivered
to you:
(1) the [U.S.] [Dutch] [Scottish] Indenture, as amended or
supplemented as of the date hereof;
(2) the Prospectus as amended or supplemented as of the date
hereof, in such numbers of copies as you have reasonably requested; and
(3) a copy of each of the most recently delivered documents
referred to in Section VI of the Distribution Agreement.
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In accordance with Section II of the Distribution Agreement we hereby
confirm that, solely for the purpose of offering and selling the Notes, you are
hereby entitled to all the rights and the benefits of the Distribution Agreement
(including the benefits of any Term Agreement attached thereto) to the same
extent and on the same terms as if you were an Appointed Agent pursuant to the
Distribution Agreement. You agree that you shall be subject to all the
obligations that an Appointed Agent would have under the Distribution Agreement
for purposes of the offer and sale of the Notes.
Terms used but not defined herein shall have the meaning assigned to
them in the Distribution Agreement.
This Agreement is governed by, and shall be construed in accordance
with, New York law.
Please confirm your acceptance of the foregoing by signing this letter
and returning it to us, whereupon this letter, including those provisions of the
Distribution Agreement incorporated by reference herein, shall constitute a
binding agreement between you and [Diageo Investment] [Diageo Finance] [Diageo
Capital] and the Guarantor.
[DIAGEO INVESTMENT CORPORATION]
[DIAGEO FINANCE B.V.]
[DIAGEO CAPITAL PLC]
By:___________________________________
Name:
Title:
[By:__________________________________
Name:
Title: ]
[DIAGEO PLC]
By:___________________________________
Name:
Title:
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Agreed as of the date first above written:
[DEALER]
By:________________________________
cc: [TRUSTEE]
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