SMITH & NEPHEW PLC Debt Securities UNDERWRITING AGREEMENT
Exhibit 1.1
EXECUTION VERSION
XXXXX & NEPHEW PLC
Debt Securities
October 7, 2020
BofA Securities, Inc.
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
as representatives of the several Underwriters named in Schedule I to the Pricing Agreement (defined below)
Ladies and Gentlemen:
Xxxxx & Nephew plc, a company organized under the laws of England and Wales (the “Company”), proposes to enter into a Pricing Agreement (“Pricing Agreement”), substantially in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and subject to the terms and conditions stated herein, to issue and sell to the firms named in Schedule I to the Pricing Agreement (such firms constituting the “Underwriters” with respect to such Pricing Agreement and the securities specified therein), certain of its debt securities (the “Securities”) specified in Schedule II to the Pricing Agreement (with respect to such Pricing Agreement, the “Designated Securities”).
The terms and rights of the Designated Securities shall be as specified in the Pricing Agreement and pursuant to the Indenture, to be dated on or around of October 14, 2020, as amended or supplemented from time to time (the “Indenture”), between the Company and The Bank of New York Mellon, as Trustee (the “Trustee”).
This underwriting agreement (the “Agreement”) supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any Underwriter, with respect to the subject matter hereof.
| 1. | Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom you will act as representatives (the “Representatives”). The term “Representatives” also refers to the firm(s) acting as Underwriters and to Underwriters who act without any firm being designated as their representative. This Underwriting Agreement shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase the Securities. The obligation of the Company to issue and sell any of the |
Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. The Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters and the principal amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also specify the terms of such Designated Securities. The Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic or electronic communications or any other rapid transmission device designed to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
| 2. | The Company represents and warrants to, and agrees with, each of the Underwriters that: |
| (a) | The registration statement on Form F-3 (Registration No. 333-249255) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”); such registration statement and any amendments thereto filed prior to the date of the applicable Pricing Agreement, excluding exhibits to such registration statement, but including all documents incorporated by reference in the prospectus contained therein, became effective on filing with the Commission in such form; the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of the applicable Pricing Agreement, is hereafter called the “Basic Prospectus”; any preliminary prospectus relating to the Designated Securities (including any preliminary prospectus supplement) included in such registration statement or filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Securities Act of l933, as amended (the “Act”), being hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto and the documents incorporated by reference in the prospectus contained in such registration statement, at the time such parts became effective, but excluding Form T-1 and including any prospectus supplement relating to the Designated Securities that is filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective being hereinafter called the “Registration Statement”; “Applicable Time” is the time specified as such in the applicable Pricing Agreement; “Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendments or amendments thereto became or becomes effective; any reference herein to the Basic Prospectus, any Preliminary Prospectus or the Prospectus (as defined below) shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Act, as of the date of such Basic Prospectus, any Preliminary Prospectus or Prospectus, as the case may be, and any post-effective amendments to the Registration Statement; any |
reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Basic Prospectus, any Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference in such Basic Prospectus, any Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date of the Registration Statement that is incorporated by reference in the Registration Statement; the Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Designated Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof, including any documents incorporated by reference therein as of the date of such filing, is hereinafter called the “Prospectus ”; and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission and no order preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package (as defined below) together with any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Designated Securities (an “Issuer Free Writing Prospectus”) has been issued and no proceeding for that purpose has been initiated or threatened by the Commission;
| (b) | The documents incorporated by reference in the Pricing Disclosure Package and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the applicable rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Pricing Disclosure Package or the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Pricing Disclosure Package or the Prospectus as amended or supplemented relating to such Securities; and no such documents will have been filed with the Commission following the Commission's close of business on the business day immediately prior to the date of the applicable Pricing Agreement and prior to the execution of the applicable Pricing Agreement, except as set forth on Schedule III to the applicable Pricing Agreement; |
| (c) | The Registration Statement and the Prospectus conform, and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects, to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder; the Registration Statement and any amendment thereto do not and will not, as of the applicable Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, not misleading; and the Prospectus and any amendment or supplement thereto do not and will not, as of its date and as of the Time of Delivery (as defined below), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to (i) any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Registration Statement or the Prospectus as amended or supplemented relating to such Securities or (ii) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act; |
| (d) | The (i) Basic Prospectus, the Preliminary Prospectus, if any, used most recently prior to the Applicable Time, as supplemented by the final term sheet prepared and filed pursuant to Section 5(a) hereof as of the Applicable Time and listed on Schedule IV to the applicable Pricing Agreement together with the Issuer Free Writing Prospectus listed in Schedule III (if any) to the applicable Pricing Agreement and any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Pricing Disclosure Package (collectively, the “Pricing Disclosure Package”) and (ii) each electronic road show, if any, when taken together as a whole with the Pricing Disclosure Package, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule III (if any) to the applicable Pricing Agreement will not conflict with the information contained in the Registration Statement, the Basic Prospectus, the Preliminary Prospectus, if any, used most recently prior to the Applicable Time or the Prospectus; provided, however, that this representation and warranty shall not apply to (i) any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in any such Issuer Free Writing Prospectus or the Pricing Disclosure Package or (ii) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act; |
| (e) | Each of the Company and its Significant Subsidiaries (as defined in Regulation S-X under the Exchange Act) has been duly incorporated and is validly existing under the law of the jurisdiction of its incorporation, with power and authority (corporate and other) to own, lease and operate its properties and conduct its |
business as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus. The Company is not, and at the time of the Pricing Agreement, will not be an “ineligible issuer,” as defined in Rule 405 under the Act;
| (f) | The Designated Securities have been duly authorized and, when executed and authenticated in accordance with the Indenture and delivered to and paid for by the Underwriters, will constitute valid and binding obligations of the Company entitled to the benefits provided by the Indenture; each of this Agreement, the Pricing Agreement and the Indenture has been or will be duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Trustee, the Indenture will constitute a valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effects of applicable bankruptcy, insolvency and similar laws affecting the enforcement of creditors' rights generally and equitable principles of general applicability; the Indenture has been duly qualified under the Trust Indenture Act; and the Designated Securities conform in all material respects to the description thereof contained in the Pricing Disclosure Package and the Prospectus as amended or supplemented; |
| (g) | The issue and sale of the Designated Securities and the compliance by the Company with the Indenture, this Agreement and the Pricing Agreement relating to the Designated Securities and the consummation by the Company of the transactions contemplated herein and therein will not contravene (i) any of the terms or provisions of any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument to which the Company is a party or by which the Company is bound (collectively, “Agreements and Instruments”), or (ii) the memorandum or articles of association of the Company (the “Charter”), or (iii) any statute of the United States or the United Kingdom or any political subdivision thereof, or any order, rule or regulation known to the Company of any court or of any governmental agency or body in the United States or the United Kingdom or any political subdivision thereof (collectively, “Governmental Requirements”), except in the case of clause (i) above for such contraventions which would not, singly or in the aggregate, (A) affect the validity or binding nature of the Designated Securities or (B) have a material adverse effect on the financial position, shareholders’ equity or results of operations of the Company and its consolidated subsidiaries considered as a whole (clauses (A) and (B) together, a “Material Adverse Effect”); the Company is not in violation of (i) any Agreements and Instruments, or (ii) its Charter, or (iii) any Governmental Requirements, except for such violations as would not, singly or in the aggregate, have a Material Adverse Effect; |
| (h) | No consent, approval, authorization, order, registration or qualification of or with any court or any governmental agency or body described in (g) above is required for the issue and sale of the Designated Securities by the Company in the manner contemplated herein or the consummation of the other transactions contemplated by this Agreement, the Pricing Agreement or the Indenture except as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Designated Securities; |
| (i) | The Company is not, and after giving effect to the offering and sale of the Designated Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended; |
| (j) | KPMG LLP, which has audited the financial statements of the Company and its subsidiaries and the Company's internal controls over financial reporting as specified under the heading “Experts” in the Registration Statement, the Pricing Disclosure Package and the Prospectus is an independent registered public accounting firm with respect to the Company as required by the Act and the applicable rules and regulations of the Commission thereunder; |
| (k) | The financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Company and its consolidated subsidiaries at the dates indicated and the results of operations, shareholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with International Financial Reporting Standards as adopted by the European Union (“IFRS-EU”) and International Financial Reporting Standards as issued by the International Accounting Standards Board (“IFRS-IASB”) applied on a consistent basis throughout the periods involved. IFRS-EU differs in certain respects from IFRS-IASB, however, the differences have no impact for the periods specified. Except as included or incorporated by reference therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus under the Act, the Exchange Act or the rules and regulations of the Commission thereunder. All disclosures contained or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, if any, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G under the Exchange Act, to the extent applicable, in all material respects; |
| (l) | The Company maintains a system of internal controls over financial reporting (as defined under Rule 13a-15 and Rule 15d-15 under the Exchange Act) sufficient to provide reasonable assurances that: (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS-EU, IFRS-IASB or applicable local generally accepted accounting principles and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, at the end of the Company’s most recent audited fiscal year, there was (1) no material weakness in the Company’s internal control over financial reporting |
(whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. The Company maintains an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) that is designed to ensure that the information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure;
| (m) | Since the date of the most recent consolidated financial statements included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there has not been any material adverse change in the consolidated shareholders’ equity or consolidated long-term debt of the Company and its subsidiaries taken as a whole, or any material adverse change, or any development reasonably likely to result in a prospective material adverse change in or affecting the financial position, shareholders’ equity or results of operations of the Company and its consolidated subsidiaries considered as a whole, otherwise than as set forth therein; |
| (n) | The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with, in all material respects, applicable financial recordkeeping and reporting requirements, money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), insofar as they apply, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened; |
| (o) | None of the Company or any of its subsidiaries or, to the knowledge of the Company, any director, officer or employee of the Company or any of its subsidiaries is currently subject to any sanctions administered by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions that broadly prohibits dealings with that country or territory (each, a “Sanctioned Country”); and the Company will not directly or, knowingly, indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is |
the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country (except, in the case of (i) or (ii), to the extent permissible for a person required to comply with Sanctions) or (iii) in any other manner that will result in a violation by any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise of Sanctions. It is acknowledged and agreed that the representations and warranties in this clause (o) are only sought and given to the extent that to do so would not result in a violation of, or conflict with, Regulation (EC) 2271/96 or any implementing measures, or any related or associated regulation implemented in the United Kingdom;
| (p) | For the past five years, none of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer or employee of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation in any material respect by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), the U.K. Xxxxxxx Xxx 0000 (the “Bribery Act”), the U.K. Criminal Finances Xxx 0000 (the “Criminal Finances Act”) or any other applicable anti-bribery or anti-corruption law or regulation; the Company, its subsidiaries and, to the knowledge of the Company, its other affiliates have conducted their businesses in compliance with the FCPA, the Bribery Act, the Criminal Finances Act and such applicable laws and regulations and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith in all material respects; |
| (q) | Other than as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no legal or governmental or regulatory proceedings pending or threatened to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described and there are no statutes or regulations that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described; |
| (r) | The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its subsidiaries therein, and which infringement or conflict, if the subject of an unfavorable decision, ruling or finding, or invalidity or inadequacy, could, singly or in the aggregate have a Material Adverse Effect; |
| (s) | The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate governmental entities necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect. The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, if the subject of an unfavorable decision, ruling or finding, would, singly or in the aggregate, result in a Material Adverse Effect; |
| (t) | To the best of the Company’s knowledge, there has been no material security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company and its subsidiaries, and any such data processed or stored by third parties on behalf of the Company and its subsidiaries), equipment or technology (collectively, “IT Systems and Data”); (ii) neither the Company nor any of its subsidiaries have been notified of, and have no knowledge of any event or condition that could result in, any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data; and (iii) the Company and its subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards; |
| (u) | Assuming the Designated Securities are listed on a recognised stock exchange (as defined in Section 1005 of the United Kingdom Income Tax Xxx 0000 (the “ITA”)) at the relevant time, all payments of principal, premium, if any, and interest on the Designated Securities may be made free and clear of and without withholding taxes or deduction on account of taxes in the United Kingdom; no stamp or other issuance or transfer taxes or similar duties are payable by or on behalf of the Underwriters in the United Kingdom (or to any political subdivision thereof) in connection with the initial issuance, initial sale and delivery of the Designated Securities in the manner contemplated herein (provided that no election is made by DTC (as defined below) or any other relevant clearance service under section 97A of the Finance Act 1986). |
| 3. | Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the Representatives of the release of such Designated Securities, |
the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Prospectus as amended or supplemented.
| 4. | Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours' prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of such Underwriter at the office of Sidley Austin LLP, 00 Xx Xxxx Xxx, Xxxxxx, Xxxxxxx, against payment by such Underwriter or on its behalf of the purchase price therefor in same day funds, payable to the order of the Company in the funds specified in such Pricing Agreement, all at the place and time and date specified in such Pricing Agreement or at such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the “Time of Delivery” for such Securities. The Securities will be delivered by the Company to the Representatives in the form of one or more global Securities, representing all of the Securities, which will be registered in the name of a nominee for The Depository Trust Company (“DTC”) and deposited on behalf of the Underwriters with Cede & Co. as custodian for DTC, for credit to the respective participant accounts of the Underwriters unless otherwise directed by you. Such global Securities will be made available for checking at least twenty-four hours prior to the Time of Delivery. |
| 5. | The Company agrees with each of the Underwriters of any Designated Securities: |
| (a) | To prepare in consultation with the Representatives the Prospectus, as amended and supplemented in relation to the applicable Designated Securities, in a form approved by the Representatives, which approval the Representatives agree they will not unreasonably withhold, and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of the Pricing Agreement relating to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement, the Pricing Disclosure Package or Prospectus (as each may have been amended or supplemented) after the date of the Pricing Agreement relating to such Designated Securities and prior to the Time of Delivery without prior consultation with the Representatives for such Designated Securities; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; if requested by the Representatives prior to the Applicable Time, to prepare a final term sheet, containing solely a description of the Designated Securities, in a form substantially as set forth in Schedule V to the applicable Pricing Agreement and which shall be attached to the applicable Pricing Agreement and approved by the Representatives, and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus (or, in lieu thereof, the |
notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of such Designated Securities, and during such same period to advise the Representatives, promptly after the Company receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Securities, of the suspension of the qualification of such Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Securities or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
| (b) | Promptly from time to time to use its reasonable best efforts to qualify such Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably request and to pay all expenses (including reasonable fees and disbursements of counsel to the Underwriters) in connection with such qualification and in connection with the determination of the eligibility of such Securities for investment under the laws of such jurisdictions as the Representatives may designate and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of such Securities; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or to take any other action which would subject it to service of process in suits in any jurisdiction or subject it to taxation in any jurisdiction other than those arising out of the offering or sale of the Designated Securities in such jurisdiction; |
| (c) | To furnish the Underwriters, without charge, with a copy of the Registration Statement, with copies of the Prospectus as amended or supplemented, including the exhibits and materials, if any, incorporated by reference therein, in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of a prospectus is required (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Designated Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives and upon their request to file such document and to |
prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; provided, however, if any Underwriter is required to deliver a prospectus in connection with sales of any of the Designated Securities at any time nine months or more after the time of issue of the Prospectus, upon their request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as the Representatives may request of an amended or supplemented Prospectus complying with Section 10(a) (3) of the Act;
| (d) | To make generally available to the Company's security holders and to the Representatives as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158); and |
| (e) | During the period beginning from the date of the Pricing Agreement for such Designated Securities and continuing to and including the completion of the distribution of such Designated Securities, as notified to the Company by the Representatives, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company which mature more than one year after the Time of Delivery and which are denominated in U.S. dollars and substantially similar to such Designated Securities, without the prior written consent of the Representatives, which consent shall not be unreasonably withheld. |
| (f) | To pay on behalf of the Underwriters (on an after-tax basis) the amount of all stamp, issue, registration, documentary and other similar taxes payable in the United Kingdom upon or in connection with the creation, issue, offering and initial resale of the Designated Securities in the manner contemplated herein and the execution and delivery of this Agreement and to reimburse the Underwriters (on an after-tax basis, including any interest or penalties) the amount of all stamp, issue, registration, documentary and other similar taxes paid by the Underwriters in any jurisdiction upon or in connection with the creation, issue, offering and initial resale of the Designated Securities and the execution and delivery of this Agreement and the Company agrees to indemnify the Underwriters against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, legal and other advisory fees (and any value added tax thereon)) which the Underwriters may incur as a result of or arising out of or in relation to any failure to pay or delay in paying any of the same. |
| (g) | To use its reasonable best efforts to (i) list the Designated Securities, and ensure the Designated Securities remain listed, on the New York Stock Exchange (or another “recognised stock exchange” as defined in Section 1005 of the ITA) (the “Relevant Stock Exchange”) as promptly as practicable, but, in any event, prior to the first interest payment date in relation to such Designated Securities. |
| (h) | To ensure that neither the Company nor any of its affiliates will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Designed Securities. |
| (i) | To cooperate with the Representatives and use its reasonable best efforts to permit the Designated Securities to be eligible for clearance and settlement through DTC. |
| 6. | (a) | Each Underwriter represents and agrees that it shall not use, refer to or distribute any “free writing prospectus” (as defined in Rule 405 under the Act, a “Free Writing Prospectus”) except: |
| (i) | a Free Writing Prospectus that (1) is not an Issuer Free Writing Prospectus, and (2) contains only information describing the preliminary terms of the Securities or their offering or otherwise permitted under Rule 134 under the Act; |
| (ii) | a Free Writing Prospectus as shall be agreed in writing with the Company that is not distributed, used or referenced by such Underwriter in a manner reasonably designed to lead to its broad unrestricted dissemination (including any electronic road show) unless the Company consents to such dissemination and such Free Writing Prospectus is listed on Schedule VI to the applicable Pricing Agreement; provided that an Underwriters' internal communications with its own sales force shall not be covered by this clause (ii); and |
| (b) | Notwithstanding Section 6(a) above, the Company hereby agrees that the Underwriters may distribute to investors one or more Free Writing Prospectuses that contain only the final terms of the Designated Securities (including, for the avoidance of doubt, in the format of Bloomberg communications) substantially in the form set forth in Schedule V to the applicable Pricing Agreement and that any such Free Writing Prospectus substantially in the form set forth in Schedule V to the applicable Pricing Agreement will be filed by the Company in accordance with Rule 433(d) under the Act and shall be considered an Issuer Free Writing Prospectus for purposes of this Agreement. |
| (c) | The Company agrees that, unless it has obtained or will obtain the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Act, provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectus included in Schedule III to the applicable Pricing Agreement. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus (including the final terms of the Designated Securities as set forth in Schedule V to the applicable Pricing Agreement) as an Issuer Free Writing Prospectus and (ii) it |
has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
| (d) | The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein. |
| 7. | The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) except as provided in the proviso contained in Section 5(c) hereof, the fees, disbursements and expenses of counsel and accountants of the Company in connection with the registration of the Designated Securities under the Act and the qualification of any indenture related to the Designated Securities under the Trust Indenture Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Prospectus and amendments and supplements thereto, the Pricing Disclosure Package and any Issuer Free Writing Prospectus and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Pricing Disclosure Package, the Indenture and any other documents in connection with the offering, purchase, sale and delivery of the Designated Securities; (iii) all expenses in connection with the qualification of the Designated Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the reasonable fees, disbursements and expenses of counsel for the Underwriters in connection with such qualification and in connection with any Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Designated Securities; (v) any filing fees incident to any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Designated Securities; (vi) the cost of preparing the Securities and of the delivery of the Designated Securities to the Underwriters, excluding any stamp, issue, registration, documentary or other similar taxes compensated for by Section 5(f); (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with any Indenture and the Securities; (viii) the fees and expenses incurred in connection with listing of the Securities on the Relevant Stock Exchange; (ix) except as provided in the proviso contained in Section 5(c) hereof all reasonable other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; and (x) to the extent any of the aforementioned costs, fees and expenses are reimbursed to the Underwriters, such |
reimbursement shall be on an after-tax basis and include the amount of any applicable irrecoverable value added tax. It is understood, however, that, except as provided in this Section 7, Section 9 and Section 13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel and transfer taxes on any resale, other than initial resale, of any of the Designated Securities by them.
| 8. | The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the Time of Delivery for such Designated Securities, true and correct, the condition that the Company shall have performed all, of its obligations hereunder theretofore to be performed, and the following additional conditions: |
| (a) | The final term sheet contemplated by Section 5(a) hereof in relation to the applicable Designated Securities, and any other material required to be filed pursuant to Rule 433 under the Act in relation to the applicable Designated Securities shall have been filed within the applicable time period prescribed for such filings by Rule 433 under the Act and the Prospectus as amended or supplemented in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no order suspending or preventing the use of the Basic Prospectus, any Preliminary Prospectus, any documents which are part of the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives' reasonable satisfaction; |
| (b) | Sidley Austin LLP, United States counsel for the Underwriters, shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the validity of the Indenture, the Designated Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus as amended or supplemented and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters (such counsel being entitled to state that they have assumed that any document referred to in their opinion and executed by the Company has been duly authorized, executed and delivered pursuant to English law and, as to all matters of English law, their opinion is given in reliance upon, and is subject to the qualifications set forth in, the opinion of counsel for the Company required by subsection (c) of this Section 8); |
| (c) | Xxxxx Xxxx & Xxxxxxxx London LLP, English solicitors for the Company shall have furnished to the Representatives a written opinion, dated the Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives, substantially to the effect as set forth in Exhibit A hereto. |
| (d) | The Chief Legal and Compliance Officer of the Company shall have furnished to the Representatives a written opinion, dated the Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Exhibit B hereto. |
| (e) | Xxxxx Xxxx & Xxxxxxxx London LLP, United States counsel for the Company, shall have furnished to the Representatives their written opinion and disclosure letter, dated the Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives, substantially to the effect set forth in Exhibit C hereto. |
| (f) | On the date of the applicable Pricing Agreement and at the Time of Delivery for such Designated Securities, KPMG LLP, the independent registered public accountants of the Company, which has audited the financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement as specified under the heading “Experts” in the Registration Statement, shall have furnished to the Representatives a letter or letters, dated as of each such date and in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants' “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus as amended or supplemented and as to such other matters as the Representatives may reasonably request; and |
| (g) | The Company shall have furnished or caused to be furnished to the Representatives a certificate or certificates, dated the Time of Delivery for the Designated Securities, of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company in this Agreement and the Pricing Agreement at and as of the Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed prior to such Time of Delivery, and as to the matters set forth in Sections 8(a) and 12(i) hereof. |
| 9. | (a) | The Company agrees to indemnify and hold harmless each Underwriter from and against any and all losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (including without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) that arise out of, or are based upon, (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material |
fact contained in the Basic Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, the Pricing Disclosure Package, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, including the information in the final term sheet filed in accordance with Section 5(a) of this Agreement and any other prospectus relating to the Securities, or any amendment or supplement thereto, or the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except to the extent that any such loss, claim, damage or liability arises out of or is based upon written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus as amended or supplemented relating to such Securities.
| (b) | Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company to the same extent as the indemnity to each Underwriter set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or alleged untrue statement or omission or alleged omission in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, the Pricing Disclosure Package, or any Issuer Free Writing Prospectus and any other prospectus relating to the Securities, or any amendment or supplement made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein. The Company acknowledges that the only information which has been so provided by the Underwriters includes: (i) the names of the Underwriters at the bottom of the front and back cover pages of the Prospectus and (iii) the sixth, seventh and eighth paragraphs of text under the caption “Underwriting” on pages S-30 and S-31 of the Prospectus relating to over-allotment, stabilization and penalty bids. |
| (c) | Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action (including any governmental action), such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, promptly notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection, except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure. In case any such action shall be brought or asserted against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall retain counsel reasonably satisfactory to the indemnified party (who shall not, without the consent of the indemnified party, be counsel to the indemnifying party) to represent the indemnified party and any others entitled to indemnification pursuant to this Section that the indemnifying party may designate in such proceedings and shall pay the fees and expenses of such proceeding, as incurred. In any such proceeding, any indemnified person shall have the right to retain its own counsel, but the fees and expenses of such |
counsel shall be at the expense of such indemnified person unless (i) the indemnifying person and indemnified person shall have mutually agreed to the contrary; (ii) the indemnifying person has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified person; (iii) the indemnified person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying person; or (iv) the named parties in such proceeding (including any impleaded parties) include both the indemnifying person and the indemnified person and representation of both parties by the same counsel would be inappropriate due to actually or potential differing interests between them. It is understood and agreed that the indemnifying person shall not, in connection with any suit, action or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all indemnified persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Underwriter and any related indemnified person shall be designated in writing by the Representatives and any such separate firm for the Company and any other related indemnified person shall be designated in writing by the Company. The indemnifying person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be any final judgment for the plaintiff, the indemnifying person agrees to indemnify each indemnified person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified person shall have requested that an indemnifying person reimburse the indemnified person for fees and expenses of counsel as contemplated by this paragraph, the indemnifying person shall be liable for any settlement of any proceeding affected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the indemnifying person of such request and (ii) the indemnifying person shall not have reimbursed the indemnified person in accordance with such request prior to the date of such settlement. No indemnifying person shall, without the written consent of the indemnified person, effect any settlement of any pending or threatened claim in respect of which any indemnified person is or could have been a party and indemnification could have been sought hereunder by such indemnified person, unless such settlement (x) includes an unconditional release of such indemnified person, in form and substance reasonably satisfactory to such indemnified person, from all liability arising out of such actions or claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of indemnified person.
| (d) | To the extent that the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which loss, claim, |
damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same respective proportions as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters, in each case as set forth in the table on the cover page of the Prospectus as amended and supplemented. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint.
| (e) | The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act and to the Underwriters' affiliates, directors and officers; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company, the duly authorized representative of the Company in the United States, and to each person, if any, who controls the Company within |
the meaning of the Act or the Exchange Act. To the extent any of the aforementioned costs, fees and expenses are reimbursed to the Underwriters or any related indemnified person, such reimbursement shall be on an after tax basis and include the amount of any applicable irrecoverable value added tax.
| 10. | (a) | If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties reasonably satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that the Representatives have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities. |
| (b) | If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives, the Company as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. |
| (c) | If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of the Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities, as |
referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
| 11. | The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter or the Company, the duly authorized representative of the Company in the United States or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Designated Securities. |
| 12. | Any Pricing Agreement shall be subject to termination in the absolute discretion of the Representatives, after consultation with the Company, if, since the respective dates as of which information is given in the Pricing Disclosure Package in the case of clause (i) below, or subsequent to the Applicable Time and prior to the Time of Delivery of the Designated Securities, in the case of clauses (ii) through (vii) below, (i) there shall have been a material adverse change, or any development which could reasonably be expected to result in a material adverse change, in the business, properties or financial condition of the Company and its consolidated subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Pricing Disclosure Package; (ii) there shall have occurred a downgrading in the rating accorded the Company's senior debt securities by Xxxxx'x Investor Services, Inc. (“Moody's”) or Standard & Poor's Corporation (“S&P”) or, in the event that the Company's senior debt securities are not rated by either Moody's or S&P, by another “nationally recognized statistical rating organization” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act; (iii) such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other senior debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading); (iv) there shall have been a change or development involving a prospective change in United States or United Kingdom taxation affecting the Designated Securities or the imposition of exchange controls by the United States or the United Kingdom affecting the Designated Securities or the transfer thereof, otherwise than as set forth or contemplated in the Pricing Disclosure Package; (v) trading in any securities of the Company or trading in securities generally on the New York Stock Exchange or the London Stock Exchange or any other exchange where the Designated Securities are listed or intended to be listed shall have been suspended or materially limited; (vi) a general moratorium on commercial banking activities in the State of New York shall have been declared by either U.S. Federal or New York State authorities or a general moratorium on commercial banking activities in the United Kingdom shall have been declared by authorities in the United Kingdom; (vii) there shall have occurred the outbreak or escalation of hostilities involving the United States or the United Kingdom or the declaration by the United States or the |
United Kingdom of a national emergency or war; or (viii) there shall have occurred any change in financial markets or other national or international calamity or crisis of such magnitude and severity in its effect on the financial markets, as, in any such case described in clauses (i) through (viii) above, in the judgment of the Representatives, after consultation with the Company, to make it impracticable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus, as amended or supplemented relating to such Securities.
| 13. | If any Pricing Agreement shall be terminated by the Underwriters of the Designated Securities pursuant to clause (i) of Section 12 hereof or because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of the Pricing Agreement, or if for any reason the Company shall be unable to perform its obligations under the Pricing Agreement, the Company will reimburse the Underwriters of such Securities for all out-of-pocket expenses (including the fees and disbursements of counsel) reasonably incurred by the Underwriters in connection with the Designated Securities. |
Notwithstanding the termination of any Pricing Agreement, the provisions of Section 9, Section 10 and Section 11 hereof shall remain in effect.
| 14. | In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the Pricing Agreement. |
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, e-mail or facsimile transmission as directed in the applicable Pricing Agreement; and if to the Company shall be delivered or sent by mail, e-mail or facsimile transmission to its address set forth in the Registration Statement, Attention: Company Secretary, or such other address as the Company shall notify in writing to the Representatives; provided, however, that any notice to an Underwriter of Designated Securities pursuant to Section 9(c) hereof shall be delivered or sent by mail, e-mail or facsimile transmission to such Underwriter at its address set forth in its Underwriters' questionnaire, or e-mail constituting such questionnaire, which address will be supplied to the Company by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the underwriters to properly identify their respective clients.
| 15. | This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Section 9 and Section 11 hereof, the officers and directors of the Company and each person who |
controls the Company or any Underwriter and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any of the Designated Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
| 16. | The Company acknowledges and agrees that (i) the purchase and sale of any Designated Securities pursuant to this Agreement is an arm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as principal and not as an agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. |
| 17. | (a) | In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States. |
| (b) | In the event that any Underwriter that is a Covered Entity or a Covered Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States. |
“Covered Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
| (i) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (ii) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (iii) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the U.S. Federal Deposit Insurance Act, as amended and the regulations promulgated thereunder and (ii) Title II of the U.S. Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, as amended and the regulations promulgated thereunder.
| 18. | Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understandings between the Underwriters and the Company, the Company acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by: |
| (a) | the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of an Underwriter to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof; |
| (b) | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| (c) | the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant Underwriter or another person, and the issue to, or conferral on, the Company of such shares, securities or obligations; |
| (d) | the cancellation of the BRRD Liability; or |
| (e) | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and |
| (f) | the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority. |
For purposes of this Section 18, the following terms shall have the respective meanings set out below:
“Bail-in Legislation” shall mean, in relation to the United Kingdom and a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
“Bail-in Powers” shall mean any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
“BRRD” shall mean Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“BRRD Liability” shall mean a liability in respect of which the relevant Write-down and Conversion Powers in the applicable Bail-in Legislation may be exercised.
“EU Bail-in Legislation Schedule” shall mean the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at xxxx://xxx.xxx.xx.xxx/.
“Relevant Resolution Authority” shall mean the resolution authority with the ability to exercise any Bail-in Powers in relation to any of the Underwriters.”
| 19. | The Company agrees that any suit, action or proceeding arising out of or relating to this Agreement or the Pricing Agreement or the transactions contemplated hereby or thereby may be instituted in the courts of the State of New York in The City and County of New York and of the United States for the Southern District of New York, and waives to the fullest extent it may do so any objection which it may now or hereafter have to the laying of venue or any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The Company hereby appoints Xxxxx & Nephew Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 as its authorized agent (the “Authorized Agent”) upon which process may be served in any suit, action or proceeding based on this Agreement or the Pricing Agreement which may be instituted in any such court by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or any person who controls any Underwriter. Such appointment shall be irrevocable so long as any of the Designated Securities remain outstanding unless and until a successor Authorized Agent shall be appointed and such successor shall accept such appointment. The Company 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 Company (mailed or delivered as aforesaid) shall be deemed, in every respect, effective service of process upon the Company. Notwithstanding the foregoing, any action based on this Agreement or any Pricing Agreement may be instituted by any Underwriter against the Company in any competent court in the United Kingdom. |
| 20. | Each reference in this Agreement and any Pricing Agreement to U.S. dollars (the “relevant currency”), including by use of the symbol “$”, is of the essence. To the fullest extent permitted by law, the obligation of each party in respect of any amount due under this Agreement or any Pricing Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the business day immediately following the day on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls short of the amount originally due, the applicable party will pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall. Any obligation of the applicable party not discharged by such payment will, to the fullest extent |
permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.
| 21. | To the extent the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, to the fullest extent permitted by applicable law, the Company hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Agreement or any Pricing Agreement. |
| 22. | Time shall be of the essence of each Pricing Agreement. As used herein, the term “business day” shall mean any day when the Commission's office in Washington, D.C. is open for business. |
| 23. | THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. EACH OF THE COMPANY AND THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRICING AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. |
| 24. | This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. The exchange of copies of this Agreement and each Pricing Agreement and of the signature pages thereto that are executed by manual signatures that are scanned, photocopied or faxed or by other electronic signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign) shall constitute effective execution and delivery of this Agreement and each Pricing Agreement for all purposes. |
[Signature Pages to Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of October 7, 2020.
| XXXXX & NEPHEW PLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx Xxxxxxxx Xxxxxx Title: Company Secretary | ||
[Signature page to the Underwriting Agreement]
| BOFA SECURITIES, INC. | ||
| By: | /s/ Xxxxxx X. Xxxx | |
| Name: Xxxxxx Xxxx | ||
| Title: Managing Director | ||
| X.X. XXXXXX SECURITIES LLC | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx Title: Executive Director | ||
| For themselves and as Representatives of the several Underwriters. |
[Signature page to the Underwriting Agreement]
ANNEX I
PRICING AGREEMENT
October 7, 2020
BofA Securities, Inc.
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
as representatives of the several Underwriters named in Schedule I hereto
Ladies and Gentlemen:
Xxxxx & Nephew plc (the “Company”) proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement dated October 7, 2020, a copy of which is attached hereto as Annex A (the “Underwriting Agreement”), to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the “Notes”). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Basic Prospectus, Pricing Disclosure Package or the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Basic Prospectus (as defined therein) as amended or supplemented as of the date of the Underwriting Agreement and also a representation and warranty as of the date of this Pricing Agreement in relation to the Basic Prospectus, Pricing Disclosure Package or the Prospectus, as amended or supplemented, relating to the Notes which are the subject of this Pricing Agreement. Each reference to the “Representatives” herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of each of the Underwriters of the Notes pursuant to Section 14 of the Underwriting Agreement and the address of the Representatives referred to in such Section 14 are set forth at the end of Schedule II hereto. Schedule III sets forth each Issuer Free Writing Prospectus that is part of the Pricing Disclosure Package and any additional documents incorporated by reference that were filed with the Commission subsequent to the Commission's close of business on the business day immediately prior to the date of the execution of this Pricing Agreement. Schedule IV sets forth all documents that the Company and the Representatives agree are to be included in the Pricing
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Disclosure Package. The final term sheet prepared in accordance with Section 5(a) of the Underwriting Agreement are attached hereto as Schedule V.
The “Applicable Time” means 2.43 p.m. New York time on the date hereof.
An amendment of the Registration Statement, or a supplement to the Basic Prospectus, as the case may be, relating to the Notes, in the form heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Notes set forth opposite the name of such Underwriter in Schedule I hereto.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, e-mail or facsimile transmission to you as the Representatives in care of: BofA Securities, Inc., Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, Attention: High Grade Debt Capital Markets Transaction Management / Legal, Tel: x0 000 000 0000, Fax: x0 (000) 000 0000 and X.X. Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, Attention: Investment Grade Syndicate Desk, Tel: x0 (000) 000 0000, Fax: x0 (000) 000 0000; and if to the Company shall be delivered or sent by mail, e-mail or facsimile transmission to its address set forth in the Registration Statement, Attention: Company Secretary, or such other address as the Company shall notify in writing to the Representatives at their respective foregoing addresses; provided, however, that any notice to an Underwriter of Notes pursuant to Section 9(c) of the Underwriting Agreement shall be delivered or sent by mail, e-mail or facsimile transmission to such Underwriter at its address set forth in its Underwriters’ questionnaire, or e-mail constituting such questionnaire, which address will be supplied to the Company by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
If the foregoing is in accordance with your understanding, please sign and return to us counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof. The exchange of copies of this Agreement and of the signature pages hereto that are executed by manual signatures that are scanned, photocopied or faxed or by other electronic signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign) shall constitute effective execution and delivery of this Agreement for all purposes.
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Very truly yours,
XXXXX & NEPHEW PLC | ||
| By: | ||
| Title: | ||
| Name: | ||
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Accepted as of the date hereof:
| BOFA SECURITIES, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| X.X. XXXXXX SECURITIES LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| For themselves and as Representatives of the several Underwriters. |
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SCHEDULE I
| Principal Amount of Notes to be Purchased | |
| $[·] | |
| BofA Securities, Inc. | $[·] |
| X.X. Xxxxxx Securities LLC | $[·] |
| SMBC Nikko Securities America, Inc. | $[·] |
| Mizuho Securities USA LLC | $[·] |
| Bank of China Limited, London Branch | $[·] |
| HSBC Securities (USA) Inc. | $[·] |
| SG Americas Securities, LLC | $[·] |
| Xxxxx Fargo Securities, LLC | $[·] |
| Total: | $[·] |
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SCHEDULE II
Title of Notes:
[•]% Notes due 2030
Aggregate Principal Amount:
$[•] principal amount of the Notes
Price to Public:
[•]% of the principal amount of the Notes, plus accrued interest, if any, from October [•], 2020
Purchase Price by Underwriters:
[•]% of the principal amount of the Notes
Specified funds for payment of purchase price:
New York Clearing House funds
Indenture:
Indenture to be dated on or around October 14, 2020 between the Company and The Bank of New York Mellon, London Branch
Maturity:
October 14, 2030
Interest Rate:
[•]% per annum
Interest Payment Dates:
Interest on the Notes will be paid semi-annually in arrears on [•] and [•] of each year, commencing [•], 2021, to (and including) maturity
Redemption Provisions:
The Notes may be redeemed at any time at the Company’s option, in whole or in part, at the redemption prices described in the Prospectus Supplement and the Issuer Free Writing Prospectus
Make Whole
At any time prior to [•] at a discount rate of Treasury rate plus [•] bps
Par Call
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On or after [•], 100%
Tax Redemption
100%
Repurchase upon Change of Control Repurchase Event:
101%
Sinking Fund Provisions:
No sinking fund provisions
Defeasance provisions:
The defeasance and covenant defeasance provisions of the Indenture apply to the Notes
Time of Delivery:
October 14, 2020
Closing Location for Delivery of Securities:
The offices of Xxxxx Xxxx & Xxxxxxxx London LLP, 0 Xxxxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx
Names and addresses of Representatives:
Designated Representatives:
BofA Securities, Inc.
X.X. Xxxxxx Securities LLC
Address for Notices:
BofA Securities, Inc.
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Facsimile: x0 (000) 000 0000
Attention: High Grade Debt Capital Markets Transaction Management / Legal
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Facsimile: x0 (000) 000 0000
Attention: Investment Grade Syndicate Desk
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SCHEDULE III
| (a) | Issuer Free Writing Prospectus, if any: None |
| (b) | Additional Documents Incorporated by Reference, if any: None |
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SCHEDULE IV
Pricing Disclosure Package:
Basic Prospectus
Preliminary Prospectus
Issuer Free Writing Prospectus dated October 7, 2020 containing the final terms of the Notes
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SCHEDULE V
FINAL TERM SHEET
V-1
| Free Writing Prospectus dated October 7, 2020 | Filed pursuant to Rule 433 |
| (to Prospectus dated October 2, 2020 and | Registration Statement No. 333-249255 |
| Preliminary Prospectus Supplement dated October 7, | |
| 2020) |
$[•] [•]% Notes due 20[•] (the “Notes”)
Final Term Sheet
October 7, 2020
| Issuer: | Xxxxx & Nephew plc (the “Issuer”) |
| Security Description: | [Senior] Notes |
| Trade Date: | October 7, 2020 |
| Settlement Date*: | October 14, 2020 (T+4) |
| Maturity Date: | October 14, 0000 |
| Xxxxxxxxx Xxxxxxxxx Xxxxxx: | $[·] (the “Aggregate Principal Amount”) |
| Price to Public: | [·]% of the Aggregate Principal Amount |
| Coupon: | [·]% |
| Interest Payment Dates: | [·], and [·], commencing [·], 2021 |
| Benchmark Treasury: | [·]% due [·], 20[·] |
| Benchmark Treasury Price and Yield: | [·], [·]% |
| Spread to Benchmark Treasury: | [·] basis points |
| Yield to Maturity: | [·]% |
| Make Whole Call: | At any time prior to [·] at a discount rate of Treasury rate plus [·] bps |
| Par Call: | On or after [·], 100% |
| Tax Redemption: | 100% |
| Change of Control Repurchase Event: | Put at 101% |
| Gross Proceeds to Issuer: | $[·] |
| Underwriting Discount: | [·]% of the Aggregate Principal Amount |
| Net Proceeds to Issuer (before expenses): | $[·] |
| Day Count Fraction: | 30/360 (following, unadjusted) |
| Business Days: | New York and London |
| Governing Law: | New York |
| Listing: | Application will be made for the Notes to be listed on the New York Stock Exchange. |
| CUSIP: | 83192P AA6 |
| ISIN: | US83192PAA66 |
| Denominations/Multiple: | Minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. |
| Ratings**: |
Baa2 (Xxxxx’x) BBB+ (S&P)
|
| Joint Book-Running Managers: |
BofA Securities, Inc.
X.X. Xxxxxx Securities LLC
|
| Bookrunners: |
Bank of China Limited, London Branch HSBC Securities (USA) Inc. Mizuho Securities USA LLC SG Americas Securities, LLC SMBC Nikko Securities America, Inc. Xxxxx Fargo Securities, LLC
|
* Pursuant to Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market are generally required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes prior to the delivery of the Notes will be required to specify alternative settlement arrangements to prevent a failed settlement. Such purchasers should consult their own advisors.
**A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
The Issuer has filed a registration statement (including the Prospectus) with the U.S. Securities and Exchange Commission (the “SEC”) for this offering. Before you invest, you should read the Preliminary Prospectus Supplement and the Prospectus in that registration statement, and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by searching the SEC online database (XXXXX®) at xxx.xxx.xxx. Alternatively, you may obtain a copy of the Prospectus and Preliminary Prospectus Supplement from BofA Securities, Inc. by calling toll free x0-000-000-0000 or X.X. Xxxxxx Securities LLC by calling collect x0-000-000-0000.
If this document has been distributed by electronic transmission, such as e-mail, then such transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this document, which may arise as a result of electronic transmission.
MiFID II product governance / Professional investors and ECPs only target market: Solely for the purposes of the manufacturer’s product approval process, the target market assessment in respect of the Notes has led to the conclusion that: (i) the target market for the Notes is eligible counterparties and professional clients only, each as defined in Directive 2014/65/EU, as amended (“ MiFID II”); and (ii) all channels for distribution of the Notes to eligible counterparties and professional clients are appropriate. Any person subsequently offering, selling or recommending the Notes (a “distributor”) should take into consideration the manufacturer’s target market assessment; however, a distributor subject to MiFID II is responsible for undertaking its own target market assessment in respect of the Notes (by either adopting or refining the manufacturer’s target market assessment) and determining appropriate distribution channels.
SCHEDULE VI
| (a) | Issuer Free Writing Prospectus not contained in Pricing Disclosure Package: Electronic road show |
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ANNEX A
UNDERWRITING AGREEMENT
EXHIBIT A
[•], 2020
BofA Securities, Inc.
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
as representatives of the several Underwriters named in Schedule I to the Pricing Agreement (as defined below)
Dear Sir or Madam
U.S.$[●] [●]% Notes due 20[●] to be issued by Xxxxx & Nephew plc
We have acted as advisers as to English law to Xxxxx & Nephew plc, a public limited company organised under the laws of England and Wales (the “Issuer”), in connection with the issue by the Issuer of U.S.$[●] [●]% Notes due 20[●] (the “Notes”) under its automatic shelf Registration Statement on Form-3 filed with the United States Securities and Exchange Commission on [●], 2020 (the “Registration Statement”) for the purposes of registering, under the United States Securities Act of 1933, as amended, the Notes to be issued, from time to time, pursuant to the Indenture referred to below (the offer and issue of the Notes being referred to in this opinion as the “Transaction”).
We have been asked to deliver this opinion to you as contemplated by Section [8(c)] of the underwriting agreement dated [●], 2020 between, inter alia, you and the Issuer (the “Notes Underwriting Agreement”).
The Notes will be issued by the Issuer pursuant to the provisions of an indenture dated [●], 2020 (the “Notes Indenture”) between the Issuer and The Bank of New York Mellon, London Branch as trustee.
For the purposes of this opinion, we have examined the documents listed in Schedule 1 to this opinion.
Capitalised terms used in this opinion shall, unless otherwise defined, have the meaning given to them in Schedule 1 and paragraphs 14 and 15 of Schedule 2 to this opinion, provided that the terms “Disclosure Package” and “Prospectus” shall have the meanings given to them
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in the separate opinion of Xxxxx Xxxx & Xxxxxxxx London LLP as to the laws of the State of New York and the federal laws of the United States of America of even date herewith.
This opinion is confined to matters of English law as at the date of this opinion, and this opinion and any non-contractual obligations arising out of or in relation to it are governed by and shall be construed in accordance with English law. Accordingly, we express no opinion with regard to any system of law other than English law as currently applied by the English courts. In particular, we express no opinion on European Union law as it applies to any jurisdiction other than England and Wales. To the extent that the laws of New York or of any other jurisdiction may be relevant, we have made no independent investigation thereof and our opinion is subject to the effect of such laws.
Statements relating to United Kingdom taxation are based on English law as applied by the English courts and on the generally published practice of HM Revenue and Customs, as at the date of this opinion. This opinion does not extend to (A) any law relating to tax made by the Scottish Parliament, the National Assembly for Wales or the Northern Irish Assembly, (B) any other law relating to any law so made, or (C) any practice relating to any such law, and we express no opinion on any such matters.
We assume no obligation to notify you of any future changes in law or the practice of HM Revenue and Customs, including any changes occurring as a result of the United Kingdom withdrawing from the European Union, which may affect the opinions expressed herein, or otherwise to update this opinion in any respect.
Opinions
On the basis of our examination of the documents listed in Schedule 1 to this opinion and the other matters referred to above, and subject to the assumptions set out in Schedule 2 to this opinion, the qualifications set out in Schedule 3 to this opinion and any matters not disclosed to us, we are of the opinion that:
| 1. | Corporate existence: The Issuer is a company that has been duly incorporated in Great Britain and registered in England and Wales as a public company limited by shares and the Company Search and Central Registry Search revealed no application, petition, order or resolution for the administration or winding up of the Issuer and no notice of appointment of, or intention to appoint, a receiver or administrator in respect of the Issuer. |
| 2. | Corporate power: The Issuer has the requisite corporate capacity to enter into the Opinion Documents and to issue the Notes and, in each case, to perform its obligations thereunder. |
| 3. | Corporate action: All corporate action required to be taken by the Issuer to authorise the execution by it of, and the performance of its obligations under, the Opinion Documents, and to issue the Notes, has been duly taken and each of the Opinion Documents and the Notes has been duly executed by or on behalf of the Issuer. |
| 4. | No violation: The execution and delivery by the Issuer of the Opinion Documents, the issuance by the Issuer of the Notes, and, in each case, the performance of its obligations thereunder do not of themselves result in any violation by the Issuer of any law or |
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regulation having the force of law in England and applicable to companies generally, or of any term of its articles of association.
| 5. | Consents etc.: No consents, licences, approvals or authorisations of, or registrations or filings with, any governmental or regulatory authority or agency in the United Kingdom are required by law applicable to companies generally by the Issuer as a condition to the execution or delivery by the Issuer of, or the performance by the Issuer of its obligations under, the Opinion Documents or the Notes, provided that offers and sales of the Notes in the United Kingdom are made only in the circumstances set out in section 86 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”). |
| 6. | Choice of foreign law: The choice of New York law to govern (i) the Notes Underwriting Agreement, pursuant to Section [23] thereof, (ii) the Notes Indenture, pursuant to Section [10.08] thereof and (iii) the Pricing Agreement and the Notes pursuant to the terms thereof, would be recognised and upheld by the English courts (if the English courts were to take jurisdiction). |
| 7. | Enforcement of Foreign Judgments: There are no arrangements currently in force for the reciprocal enforcement of judgments between the United Kingdom and the United States. However, a final judgment of a relevant court sitting in the State of New York in relation to the obligations of the Issuer under (i) the Notes Underwriting Agreement, (ii) the Notes Indenture, (iii) the Pricing Agreement and (iv) the Notes should be capable of indirect enforcement by action in the English courts without retrial or re-examination of the matters thereby adjudicated. |
| 8. | Fair summary: The statements made under the section “Enforcement of Certain Civil Liabilities” in the Registration Statement, the Disclosure Package and the Prospectus, insofar as such section purports to constitute matters of English law is, in all material respects, a fair summary of the matters it purports to summarise. |
| 9. | Certain United Kingdom Tax Considerations. The statements included in the Registration Statement, the Disclosure Package and the Prospectus under the caption “Certain United Kingdom and United States Tax Considerations – United Kingdom Taxation”, to the extent that they purport to describe provisions of United Kingdom tax law or legal conclusions with respect thereto, are, in all material respects, a fair summary of the matters they purport to summarise. |
| 10. | Stamp duties: No United Kingdom stamp duty or stamp duty reserve tax is required to be paid on the execution of any Opinion Document or on the issue or initial delivery or initial transfer of the Notes. |
This opinion is addressed to you solely for your own benefit in relation to the Transaction and may not be disclosed or furnished to, or used or relied upon by, any other person (including, without limitation, any offeree or holder of Notes) or used or relied upon by you for any other purpose without, in any such case, our prior written consent. This opinion may, however, without our further written consent, be used by you and, if necessary, furnished, where it is reasonable to do so and without prior notice to us (to the extent notice is impracticable) (i) for the purpose of responding to requests to review the opinion by governmental, regulatory or judicial authorities having competent jurisdiction over you and (ii) in connection with the defence of any legal or regulatory proceeding or investigation arising out of the Transaction.
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We have not advised or assisted you in any way in connection with the Issue Documents or the Transaction, and you have instead been advised on such matters by your own legal adviser, Sidley Austin LLP. Accordingly, beyond the matters expressly opined on in this opinion, the giving of this opinion must not be taken to create or imply any duty of care on our part to you in connection with the Issue Documents or the Transaction. The provision of this opinion to you does not create any client relationship between you and this firm, we shall have no obligation to advise you in relation to any of the matters referred to herein, and we expressly reserve the right to represent or advise the Issuer or any of its affiliates at any time in the future in connection with any matters in any way relating to the Issue Documents or the Transaction, and the existence of this opinion shall not be deemed to have caused us any conflict of interest in relation thereto.
Yours faithfully
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SCHEDULE 1
DOCUMENTS EXAMINED
For the purposes of this opinion, we have examined the following documents:
| 1. | a copy of the Registration Statement; |
| 2. | a copy of the executed New York law governed Notes Underwriting Agreement; |
| 3. | a copy of the executed New York law governed Notes Indenture; |
| 4. | a copy of the executed New York law governed pricing agreement dated [●], 2020 (the “Pricing Agreement”); |
| 5. | a copy of the preliminary prospectus supplement dated [●], 2020 and a copy of the final prospectus supplement dated [●], 2020 (the “Prospectus Supplement”), each relating to the Notes; |
| 6. | an officer’s certificate establishing the issue of the Notes pursuant to the Indenture dated [●], 2020; |
| 7. | a certificate from [●], in [his/her] capacity as [a Director/Company Secretary] of the Issuer, dated [●], 2020 (the “Officer’s Certificate”) having attached to it, inter alia: |
| (a) | a copy of the certificate of incorporation in respect of the Issuer certified to be a true and correct copy; |
| (b) | a copy of each certificate of incorporation on change of name in respect of the Issuer each certified to be a true and correct copy; |
| (c) | a copy of the certificate of incorporation on re-registration as a public limited company in respect of the Issuer certified to be a true and correct copy; |
| (d) | a copy of the articles of association of the Issuer certified to be a true and correct copy as at: (i) the date of the meeting of the Board of Directors of the Issuer held on [●], 2020 (the “Board Meeting”); (ii) the date of the meeting of the committee of the Board of Directors of the Issuer held on [●], 2020 (the “Committee Meeting”) and (iii) the date hereof; |
| (e) | a copy of the minutes of the Board Meeting (the “Board Minutes”) and a copy of the minutes of the Committee Meeting (the “Committee Minutes”) each certified to be a true and correct copy; and |
| (f) | a list of persons duly appointed as directors of the Issuer (who duly remain as directors of the Issuer), certified to be a true and correct copy. |
The Notes Underwriting Agreement, the Notes Indenture and the Pricing Agreement are referred to in this opinion letter collectively as the “Opinion Documents” and each as an “Opinion Document”. The Opinion Documents and the Notes are together referred to in
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this opinion letter collectively as the “Issue Documents” and each as an “Issue Document”.
Except as stated above we have not examined any contracts, instruments or other documents entered into by any party to any of the Opinion Documents or any corporate records of any party to any of the Opinion Documents and have not made any other enquiries, other than the Company Search and Central Registry Search, concerning any of the Opinion Documents or the parties thereto.
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SCHEDULE 2
ASSUMPTIONS
For the purposes of this opinion, we have assumed:
| 1. | all documents submitted to us as originals are authentic and complete; |
| 2. | all documents submitted to us as copies, whether in physical or electronic form, conform to authentic, complete originals and, where a document has been examined by us in draft or specimen form, it will be or has been executed in the form of that draft or specimen; |
| 3. | all signatures (whether in physical or electronic form), stamps and seals on all documents that we reviewed are genuine and the person who affixed any signature (whether in physical or electronic form) to any document is the person whose signature it purports to be or a person who had the authority of the person whose signature it purports to be to do so; |
| 4. | all signatures which purport to have been attested were made in the presence of the purported witness. Each of the Opinion Documents and the Notes has been signed by a person or persons identified in the Board Minutes or the Committee Minutes of the Issuer as a prospective signatory of that Opinion Document or of the Notes. Each signatory for whom an office or position or special authority is specified by his or her signature does in fact hold the specified office or position or special authority; |
| 5. | each of the Issue Documents is valid and binding on each party to it under the laws of the State of New York by which each of the Issue Documents is expressed to be governed, and that the words and phrases used in each of the Issue Documents have the same meaning and effect as they would have if it were governed by English law; |
| 6. | the capacity, power and authority to execute, deliver and perform each of the Opinion Documents by or on behalf of each of the parties (other than the Issuer) thereto; |
| 7. | the Notes have been duly authenticated and issued in accordance with the provisions of the Opinion Documents, the name of each holder of a Note has been correctly registered in the register maintained for that purpose; |
| 8. | each of the Opinion Documents has been duly authorised, executed and delivered by each of the parties thereto in accordance with all applicable laws (other than, in the case of the Issuer, the laws of England); |
| 9. | in any case where the legal adviser of a party to an Issue Document or other person has attached and released the signature page of such party’s counterpart of that Issue Document, that such legal adviser or other person had all necessary authority from such party to do so; |
| 10. | in relation to the Issuer: |
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| (a) | the certificate of incorporation in the form referred to in paragraph 7(a) of Schedule 1 to this opinion and each of the certificates of incorporation on change of name in the forms referred to in paragraph 7(b) of Schedule 1 to this opinion and the certificate of incorporation on re-registration as a public limited company referred to in paragraph 7(c) of Schedule 1 to this opinion are in force on the date hereof; |
| (b) | the articles of association of the Issuer, in the form referred to in paragraph 7(d) of Schedule 1 to this opinion, were in force at the date and time of authorisation and execution of each of the Issue Documents and are in force on the date hereof; |
| (c) | each of the Board Minutes and the Committee Minutes, in the form referred to in paragraph 7(e) of Schedule 1 to this opinion, are complete and correct, and that no amendment has been made thereto; and |
| (d) | (i) that the meetings of the board of directors of the Issuer and the meetings of a committee of the board of directors of the Issuer referred to in the Board Minutes and the Committee Minutes, respectively, were properly constituted and convened; (ii) that all relevant policies and procedures of the Issuer, including the terms of any delegation of authority to the committee of the board of directors of the Issuer were complied with; (iii) that a quorum of properly appointed directors of the Issuer (holding the necessary offices and meeting the other requirements for the purposes of forming a quorum) was present throughout and that the resolutions referred to therein were properly passed at such meetings and (iv) that all relevant provisions of the Companies Xxx 0000 and the articles of association of the Issuer were duly observed; (v) and that such resolutions have not been amended, revoked or rescinded and are in full force and effect; |
| 11. | each of the statements contained in the Officer’s Certificate is true and correct as at the date hereof; |
| 12. | the directors of the Issuer acted in good faith and in accordance with their duties under all applicable laws and the articles of association of the Issuer in authorising the execution of each of the Issue Documents; |
| 13. | the execution and delivery of each of the Issue Documents by the Issuer and the exercise of its rights and performance of its obligations under each of the Issue Documents will sufficiently benefit, and are in the interests of, the Issuer; |
| 14. | the information revealed by our search of the entries shown on the Companies House Direct online service on [●], 2020 with respect to the Issuer (the “Company Search”) (i) was accurate in all respects and has not since the time of such search been altered, and (ii) was complete and included all relevant information which should properly have been submitted to the Registrar of Companies; |
| 15. | the information revealed by the results of a telephone search with the Companies Court in London of the Central Registry of Winding Up Petitions on [●], 2020 with respect to the Issuer (the “Central Registry Search”) was accurate in all respects and has not since the time of such enquiry been altered; |
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| 16. | no foreign law which may apply with respect to any Issue Document or the transactions and matters contemplated thereby would be such as to affect any of the conclusions stated herein; |
| 17. | all consents, licences, approvals, authorisations, registrations, notices or filings which are necessary under any applicable laws (other than, in the case of the Issuer, the laws of England) in order to permit the execution, delivery or performance of each Issue Document, or otherwise in connection therewith, have been made or obtained; |
| 18. | each Issue Document was delivered by each party thereto on the date of execution of such agreement and none of the Issue Documents is subject to any escrow or other similar arrangement; |
| 19. | each of the parties to each of the Issue Documents validly authorised the attachment of its signature page to the final text of each of the Issue Documents to which it is a party; |
| 20. | each of the Issue Documents has been performed in accordance with its terms and none of them has been amended or modified in any way, and there are no other arrangements nor any course of dealings which modify, supersede or otherwise affect any of the terms thereof, and no unknown facts or circumstances which are not apparent from the face of any of the Issue Documents which may affect the conclusions in this opinion; |
| 21. | none of the parties to any Opinion Document or the Notes is restricted by contract or any other arrangement binding on it from entering into any of the Opinion Documents to which it is a party or any offer or issue of Notes in connection therewith and that none of the parties to any of the Opinion Documents or the Notes has entered into any documents other than those referred to in this opinion or other arrangements which could affect the validity of this opinion; |
| 22. | each of the Issue Documents reflects the commercial intentions of the parties thereto and was entered into in good faith on arm’s length terms, that each party has made its own independent decision to enter into each of the Issue Documents to which it is a party and that, in respect of any party to any of the Issue Documents and its respective directors, employees, agents and advisers, there is no bad faith, fraud, coercion, duress or undue influence; |
| 23. | all statements made as to matters of fact and all representations and warranties given by the respective parties in the documents that we have reviewed were and are true, accurate and complete; |
| 24. | each person who is a party to any of the Opinion Documents or otherwise involved in the Transaction has complied with and will comply with all applicable provisions of Regulation (EU) No. 596/2014 on market abuse (“MAR”), Regulation (EU) 1129/2017 (the “Prospectus Regulation”), the Financial Services and Markets Xxx 0000, as amended (the “FSMA”) and the Financial Services Xxx 0000 (the “FSA”) and any regulations made under any of MAR, the Prospectus Regulation, the FSMA and the FSA with respect to anything done or to be done by it in connection with the Notes, any of the Opinion Documents or the Transaction in, from, or otherwise |
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involving the United Kingdom including, without limitation, Article 14 (prohibition of insider dealing etc) and Article 15 (prohibition of market manipulation) of MAR, section 19 (the general prohibition) and section 21 (restrictions on financial promotion) of the FSMA, and section 89 (misleading statements), section 90 (misleading impressions) and section 91 (misleading statements etc in relation to benchmarks) of the FSA, and in particular:
| (a) | that each person involved in the Transaction or dealing with the Issuer in connection with the Transaction which is carrying on, or purporting to carry on, a regulated activity (within the meaning of section 19 of the FSMA) is an authorised person or exempt person for the purposes of the FSMA; |
| (b) | that each of the Registration Statement and the Prospectus Supplement, including any draft or preliminary version thereof, and any other invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) in connection with the Transaction has only been and will only be communicated or caused to be communicated in circumstances in which there has been and will be no breach of section 21(1) of the FSMA; |
| (c) | that none of the Notes has been or will be offered to the public in the United Kingdom except in circumstances which do not require the publication of a prospectus pursuant to Part VI of the FSMA, and that no circumstances have occurred or will occur requiring the submission and publication of a prospectus relating thereto in accordance with Part VI of the FSMA; |
| (d) | that no advertisement (as defined in the Prospectus Regulation) relating to the Notes has been or will be issued otherwise than in compliance with the Prospectus Regulation and any regulations made under the Prospectus Regulation; and |
| (e) | that any act done and any conduct engaged in for the purpose of stabilising the price of the Notes will be, and has been, done or engaged in in conformity with Article 5 of MAR and any directly applicable EU regulation made under MAR and the rules made under section 137Q of the FSMA; |
| 25. | no Notes will be offered in the European Economic Area or in the United Kingdom to any “retail investor” within the meaning given to that term in Regulation (EU) No 1286/2014 on key information documents for packaged retail and insurance-based investment products (PRIIPS); |
| 26. | each person who is a party to any of the Issue Documents or is otherwise involved in the Transaction has complied and will continue to comply with all applicable anti-corruption, anti-money laundering, anti-terrorism, sanctions and human rights laws and regulations and that the performance and enforcement of each Issue Document is consistent therewith; |
| 27. | neither the Notes, nor an interest in the Notes, will be transferred by an instrument of transfer, and the Notes will not carry the right to subscribe for, convert into or otherwise acquire a share or other security (or an interest in, or right arising out of, a share or other security); |
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| 28. | the Notes constitute loan capital falling within any of paragraphs (a) to (c) (inclusive) of section 78(7) of the Finance Xxx 0000 and do not carry and will not at any time carry a right to interest the amount of which exceeds a reasonable commercial return on the nominal amount of the capital, or which falls to be determined to any extent by reference to the results of, or of any part of, a business or to the value of any property; and |
| 29. | the Notes do not carry and will not at any time carry a right on repayment to an amount which exceeds the nominal amount of the capital and is not reasonably comparable with what is generally repayable (in respect of a similar nominal amount of capital) under the terms of issue of loan capital listed in the Official List of the Financial Conduct Authority acting in its capacity as the competent authority for the purposes of Part VI of the FSMA. |
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SCHEDULE 3
QUALIFICATIONS
Our opinion is subject to the following qualifications:
| 1. | The Company Search is not capable of revealing conclusively whether or not, inter alia, (i) a winding-up order has been made or a resolution passed for the winding up of a company; or (ii) an administration order has been made; or (iii) a receiver, administrative receiver, administrator or liquidator has been appointed; or (iv) a court order has been made under the Cross Border Insolvency Regulations 2006, since notice of these matters may not be filed with the Registrar of Companies immediately and, when filed, may not be entered on the electronic records of the relevant company immediately. In addition, the Company Search is not capable of revealing, prior to the making of the relevant order or the appointment of an administrator otherwise taking effect, whether or not a winding-up petition or an application for an administration order has been presented or notice of intention to appoint an administrator under paragraphs 14 or 22 of Schedule B1 to the Insolvency Xxx 0000 has been filed with the court. |
| 2. | The Central Registry Search relates only to the presentation of (i) a petition for the making of a winding-up order or the making of a winding-up order by the Court; (ii) an application to the High Court of Justice in London for the making of an administration order and the making by such court of an administration order; and (iii) a notice of intention to appoint an administrator or a notice of appointment of an administrator filed at the High Court of Justice in London. It is not capable of revealing conclusively whether or not such a winding-up petition, application for an administration order, notice of intention or notice of appointment has been presented or winding-up or administration order granted. |
| 3. | Except as expressly set out in our opinion above, we express no opinion in respect of the tax treatment of, or the transactions contemplated by, any of the Issue Documents or any other documentation entered into in connection therewith or in connection with the Transaction or any other legal issue including (without limitation) whether any of the Issue Documents or any such other documentation is effective for any commercial, accounting, tax or legal objectives or purposes of the parties thereto or any other person. We express no opinion on the applicability of Schedule 17 to the Finance Xxx 0000. We also express no opinion as to matters of fact. |
| 4. | We have not been responsible for verifying whether any statement of fact (including foreign law), opinion or intention in any documents referred to in this opinion, in any related documents or otherwise in connection with the Transaction, is accurate, complete or reasonable or that no material facts have been omitted therefrom. We express no opinion as to whether the Registration Statement or the Prospectus Supplement contains all information it is required to contain. |
| 5. | The English courts will not apply New York law in relation to any Issue Document if (i) it is not pleaded or proved; or (ii) to do so would be contrary to the mandatory rules of English law or New York law, or manifestly incompatible with English public policy. |
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| 6. | We express no opinion as to whether or not a foreign court (applying its own conflict of law rules) will act in accordance with the parties’ agreement as to jurisdiction or choice of law. |
| 7. | Article 3(1) of Regulation (EC) No. 593/2008 (“Rome I”) provides that a contract shall be governed by the law chosen by the parties. Although the express choice of New York law as the governing law of (i) the Notes Underwriting Agreement, (ii) the Notes Indenture, (iii) the Pricing Agreement and (iv) the Notes is a choice of law within the terms of Article 3(1), Rome I does provide for circumstances where Article 3(1) will not be applicable or could be modified or overridden. We express no opinion as to the choice of the laws of New York law to govern contractual obligations falling outside the scope of Rome I. We also express no opinion on the law governing non-contractual obligations. |
| 8. | A final judgment of a court sitting in the State of New York (a “Foreign Judgment”) may only be relied upon as establishing a cause of action in respect of which proceedings may be issued in the English courts, provided (i) the court sitting in the State of New York (a “Foreign Court”) is recognised by the English court as having jurisdiction to give the Foreign Judgment and (ii) the Foreign Judgment finally and conclusively on the merits establishes a debt or definite sum of money between the parties. |
| 9. | Enforcement of a Foreign Judgment will not be direct enforcement. In any enforcement proceedings relating to a Foreign Judgment, (i) the defendant may be able to raise a counterclaim that would have been available to it had the matter been heard in the English courts and (ii) the Issuer may have defences open to it and enforcement of a Foreign Judgment may not be permitted in certain circumstances including, without limitation, if the Foreign Judgment was obtained by fraud, enforcement of the Foreign Judgment would be contrary to public policy of English law, the Foreign Judgment relates to foreign penal or revenue laws or multiple damages, the Foreign Judgment was obtained in proceedings contrary to natural justice, the Foreign Judgment amounts to judgment on a matter previously determined by an English court or conflicts with a judgment on the same matter given by a court other than a Foreign Court, the judgment is given in proceedings brought in breach of an agreement for the settlement of disputes, or enforcement proceedings are not commenced within six years of the date of such Foreign Judgment. |
| 10. | In the event of proceedings being brought in respect of a monetary obligation expressed to be payable in a currency other than Sterling, any judgment or award may only be given in, or be required to be converted into, Sterling, and the benefit of a currency conversion or indemnity clause may not be enforced and, with respect to bankruptcy, insolvency, liquidation, moratorium, reorganisation, reconstruction or similar proceedings, English law may require that all claims or debts are converted into Sterling at an exchange rate determined at a date related thereto, such as the date of commencement of a winding-up. |
| 11. | In certain circumstances, a claimant in an action may be ordered to provide security for costs. |
| 12. | Any provision of any of the Issue Documents requiring any person to pay amounts imposed in circumstances of breach or default (whether expressed by way of penalty, |
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additional interest, liquidated damages or otherwise) may be unenforceable on the grounds that it is a penalty.
| 13. | Any provision of any agreement or deed which amounts to an indemnity in respect of the costs of litigation or arbitration or any provision which would involve the enforcement of foreign revenue, public or penal laws or which would be inconsistent with English public policy may not be given effect. |
| 14. | To the extent that any operative provision in any of the Issue Documents is reliant on another contract or a provision in another contract and such other contract or provision is held to be void or otherwise unenforceable, then such operative provision would also be unenforceable, to the extent of such reliance. |
| 15. | The effectiveness of contractual terms exculpating a party from liabilities or duties otherwise owed is limited by law. |
| 16. | This opinion is subject to all applicable laws relating to bankruptcy, insolvency, liquidation, administration, voluntary arrangement, scheme of arrangement, moratorium, reorganisation, rescheduling, fraudulent transfer, preference, transactions at undervalue or other laws of general application relating to or affecting the rights of creditors. |
| 17. | A claim pursuant to an indemnity or contribution provision may not be given effect insofar as the subject matter of such claim relates to penalties imposed under any provision of the FSMA or of the rules made under it, and any indemnity obligations imposed under any agreement may not be legal, valid, binding or enforceable insofar as they relate to fines or penalties arising out of matters of civil or criminal liability. |
| 18. | Any provision of any of the Issue Documents which constitutes, or purports to constitute, a restriction on the exercise of any statutory power by any party to any of the Issue Documents or any other person may be ineffective. |
| 19. | We express no opinion on whether a right of set-off against contingent, unascertained or unmatured obligations would be effective. |
| 20. | We express no opinion on whether any Issue Document may result in the breach of any restrictions imposed on any of the parties by its constitutional documents but, in the case of the Issuer, without prejudice to paragraph 4 (No Violation) of our opinion or by any instrument to which any such person is a party or by which it may be bound. |
| 21. | Legislation, treasury rules and other laws and regulations in England and Wales restrict or prohibit payments, transactions and dealings with assets and individuals or entities having a proscribed connection with certain countries or subject to international sanctions or associated with terrorism. |
| 22. | The laws of another country which cannot under the laws of the relevant country be derogated from by contract may be applied, regardless of the fact that the parties have chosen the laws of a country other than the relevant country as the applicable law, where all the other elements pertaining to the situation are connected to the relevant country. |
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| 23. | We express no opinion as to whether any United Kingdom stamp duty or stamp duty reserve tax is required to be paid on or in relation to any assignment or other transfer of any right or interest under any Opinion Document, to a person not originally a party thereto. Other than opinion 9 (Certain United Kingdom Tax Considerations) and opinion 10 (Stamp duties), we express no opinion on any aspect of United Kingdom taxation. |
| 24. | Any undertaking or indemnity given in relation to United Kingdom stamp duty may be void under section 117 of the Stamp Xxx 0000. |
| 25. | The term “filing” as used in paragraph 5 of this opinion shall not be taken to refer to any filings which could be said to be required as a result of provisions of United Kingdom tax law which may require the reporting of information to the relevant tax authorities in certain circumstances. Without prejudice to the generality of the prior sentence, the term “filing” shall exclude any obligations that may arise under or in connection with any of: Part 7 of the Finance Xxx 0000, Schedule 11A to the Value Added Tax Xxx 0000, section 18B of the Taxes Management Xxx 0000, Schedule 23 to the Finance Xxx 0000, the Reporting of Savings Income Information Regulations 2003 (S.I. 2003/3297) and any regulations made in exercise of the powers conferred by sections 135 or 136 of the Finance Xxx 0000, section 222 of the Finance Xxx 0000 or section 84 of the Finance Xxx 0000. |
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EXHIBIT B
[Letterhead of Xxxxx & Nephew plc]
BofA Securities, Inc.
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
As Representatives of the several
Underwriters named in Schedule I to
the Pricing Agreement
[●], 2020
Dear Ladies and Gentlemen
I am Chief Legal and Compliance Officer for Xxxxx & Nephew plc (the Company) and, as such, I am familiar with its affairs.
Reference is made to the Underwriting Agreement dated [●], 2020 (the Shelf Underwriting Agreement) and the related Pricing Agreement dated [●], 2020 among the Company, and you, as Underwriters (the Pricing Agreement, and together with the Shelf Underwriting Agreement, referred to as the Underwriting Agreement). Words used as defined terms in this letter shall have the same meaning as that given to them in the Underwriting Agreement.
In connection with the Pricing Disclosure Package, the Prospectus and the Registration Statement, I give my opinion as follows:
| i. | To the best of my knowledge, after due inquiry, and other than as set forth in the Pricing Disclosure Package and the Prospectus, there are no material legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described and there are no statutes or regulations that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus and are not so described. |
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| ii. | The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Indenture and the Underwriting Agreement and the consummation by the Company of the transactions contemplated therein will not contravene any of the terms or provisions of any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument known to me to which the Company is a party or by which the Company is bound, except for such contraventions which would not affect the validity or binding nature of the Designated Securities or have a material adverse effect on the financial position, shareholders’ equity or results of operations of the Company and its consolidated subsidiaries considered as a whole. |
In giving this opinion, I have made no investigation of the laws of any country other than England and this opinion is confined to matters of English law and, as to all matters governed by the laws of the United States and the State of New York, this opinion is given in reliance upon, and is subject to the qualifications set forth in, the opinion required by Section [8(d)] of the Underwriting Agreement.
[The rest of this page has been intentionally left blank.]
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Yours faithfully
Xxxxxxxx X’Xxxxxx
[Signature Page to Company Opinion]
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EXHIBIT C
[•], 2020
BofA Securities, Inc.
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
As Representatives of the several
Underwriters named in Schedule I to the
Pricing Agreement
Ladies and Gentlemen:
We have acted as special United States counsel for Xxxxx & Nephew plc, a public limited company organized under the laws of England and Wales (the “Company”), in connection with the Underwriting Agreement dated [•], 2020 (the “Shelf Underwriting Agreement”) and the Pricing Agreement dated [•], 2020, each with you and the other several Underwriters named in Schedule I thereto (the “Pricing Agreement” and, together with the Shelf Underwriting Agreement, the “Underwriting Agreement”), under which you and such other Underwriters have severally agreed to purchase from the Company US$[•] aggregate principal amount of the Company’s [•]% Notes due 20[•] (the “Securities”). The Securities are to be issued pursuant to the provisions of the Indenture dated as of [•], 2020 (the “Indenture”) between the Company and The Bank of New York Mellon, London Branch, as trustee, (the “Trustee”).
We have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
We have also participated in the preparation of the registration statement of the Company on Form F-3ASR (File No. 333-249255) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company and have participated in the preparation of the preliminary prospectus supplement dated [•], 2020 relating to the Securities (the “Preliminary Prospectus Supplement”), the pricing term sheet set forth in Schedule [V] to the Pricing Agreement dated [•], 2020 relating to the Securities (the “Pricing Term Sheet”) and the prospectus supplement dated [•], 2020 relating to the Securities (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act and the Indenture qualified under the Trust Indenture Act of 1939, as amended, upon the filing of
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the registration statement with the Commission on [•], 2020 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated [•], 2020 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the Preliminary Prospectus Supplement, together with the Pricing Term Sheet, are hereinafter referred to as the “Disclosure Package.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Securities (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Securities under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.”
In rendering the opinions expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed with or submitted to the Commission through its Electronic Data Gathering, Analysis and Retrieval (“XXXXX”) system (except for required XXXXX formatting changes) conform to the versions of such documents reviewed by us prior to such formatting, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company as to matters of fact in the documents that we reviewed or otherwise made to us were and are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we are of the opinion that:
| 1. | Assuming that the Underwriting Agreement has been duly authorized, executed and delivered by the Company insofar as English law is concerned, the Underwriting Agreement has been duly executed and delivered by the Company. |
| 2. | Assuming that the Indenture has been duly authorized, executed and delivered by the Company insofar as English law is concerned, the Indenture has been duly executed and delivered by the Company, and the Indenture is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that we express no opinion as to the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest. |
| 3. | Assuming that the Securities have been duly authorized, executed and delivered by the Company insofar as English law is concerned, the Securities are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, will be valid and |
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binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and may be subject to possible judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors' rights, and will be entitled to the benefits of the Indenture pursuant to which the Securities are to be issued, provided that we express no opinion as to the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.
| 4. | Assuming that each of the Underwriting Agreement and the Indenture has been duly authorized, executed and delivered by the Company insofar as English law is concerned, under the laws of the State of New York relating to personal jurisdiction, the Company has, pursuant to Section [19] of the Underwriting Agreement and Section [10.11] of the Indenture, validly and irrevocably submitted to the non-exclusive personal jurisdiction of any state or United States federal court located in the Borough of Manhattan, the City of New York, New York (each a “New York Court”) in any action arising out of or relating to the Indenture and the Underwriting Agreement or the transactions contemplated thereby, has validly and irrevocably waived to the fullest extent it may effectively do so any objection to the venue of a proceeding in any such New York Court, and has validly and irrevocably appointed Xxxxx & Nephew Inc. as its authorized agent for the purpose described in Section [19] of the Underwriting Agreement and Section [10.11] of the Indenture; and service of process effected on such agent in the manner set forth in Section [19] of the Underwriting Agreement and Section [10.11] of the Indenture will be effective to confer valid personal jurisdiction on the Company. |
| 5. | The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. |
| 6. | The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Securities (collectively, the “Documents”) will not contravene any provision of the statutory laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated thereby, provided that we express no opinion as to federal or state securities laws. |
| 7. | No consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents is required for the execution, delivery and performance by the Company of its obligations under the Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion. |
We have considered the statements included in the Disclosure Package under the captions “Description of Notes” and “Description of Debt Securities”, as supplemented by the information set forth in the Pricing Term Sheet, and in the Prospectus under the captions
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“Description of Notes” and “Description of Debt Securities” insofar as they summarize provisions of the Indenture and the Securities. In our opinion, such statements fairly summarize these provisions in all material respects. The statements included in the Disclosure Package and the Prospectus under the caption “Certain United Kingdom and United States Federal Tax Considerations—United States Federal Income Taxation”, insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, in our opinion fairly and accurately summarize the matters referred to therein in all material respects.
In rendering the opinions in paragraphs (1), (2), (3) and (4) above, we have assumed that each party to the Documents has been duly incorporated and is validly existing and, where applicable, in good standing under the laws of the jurisdiction of its organization. In addition, we have assumed that (i) the execution, delivery and performance by each party thereto of each Document to which it is a party (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption to the extent that we have specifically opined as to such matters with respect to the Company, and (ii) each Document (other than the Underwriting Agreement) is a valid, binding and enforceable agreement of each party thereto (other than as expressly covered above in respect of the Company).
We are members of the Bar of the State of New York, and the foregoing opinion is limited to the laws of the State of New York and the federal laws of the United States of America, except that we express no opinion as to any law, rule or regulation that is applicable to the Company or the Documents or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.
With respect to all matters of English law, you have received, and we understand that you are relying upon, the separate opinion of Xxxxx Xxxx & Xxxxxxxx London LLP and the opinion of the Chief Legal and Compliance Officer of the Company, delivered pursuant to Section [8(c)] and Section [8(d)], respectively, of the Underwriting Agreement.
This opinion is rendered solely to you and the other several Underwriters in connection with the Underwriting Agreement. This opinion may not be relied upon by you or the other several Underwriters for any other purpose or relied upon by any other person (including any person acquiring Securities from the several Underwriters) or furnished to any other person without our prior written consent. This opinion may, however, without our further written consent, be used and, if necessary, furnished, where it is reasonable to do so and without prior notice to us (to the extent notice is impracticable) (i) for the purpose of responding to requests to review the opinion by governmental, regulatory or judicial authorities having competent jurisdiction over the relevant Underwriter and (ii) in connection with the defense of any legal or regulatory proceeding or investigation arising out of the offer and sale of the Securities.
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Very truly yours,
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[•], 2020
BofA Securities, Inc.
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
As Representatives of the several
Underwriters named in Schedule I to
the Pricing Agreement
Ladies and Gentlemen:
We have acted as special United States counsel for Xxxxx & Nephew plc, a public limited company organized under the laws of England and Wales (the “Company”), in connection with the Underwriting Agreement dated [•], 2020 (the “Shelf Underwriting Agreement”) and the Pricing Agreement dated [•], 2020, each with you and the other several Underwriters named in Schedule I thereto (the “Pricing Agreement” and, together with the Shelf Underwriting Agreement, the “Underwriting Agreement”), under which you and such other Underwriters have severally agreed to purchase from the Company US$[ •] aggregate principal amount of the Company’s [•]% Notes due 20[•] (the “Securities”). The Securities are to be issued pursuant to the provisions of the Indenture dated as of [ •], 2020 (the “Indenture”) between the Company and The Bank of New York Mellon, London Branch, as trustee, (the “Trustee”).
We have also participated in the preparation of the registration statement of the Company on Form F-3ASR (File No. 333-249255) (other than the documents incorporated by reference therein (the “Incorporated Documents”)) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the provisions of the Securities Act of 1933, as amended (the “Act”), relating to the registration of securities (the “Shelf Securities”) to be issued from time to time by the Company, and have participated in the preparation of the preliminary prospectus supplement dated [•], 2020 (the “Preliminary Prospectus Supplement”) relating to the Securities, the free-writing prospectus dated [•], 2020 relating to the Securities and the prospectus supplement dated [•], 2020 relating to the Securities (the “Prospectus Supplement”), and have reviewed the Incorporated Documents. The registration statement became effective under the Act and the Indenture qualified under the Trust Indenture Act of 1939, as amended, upon the filing of the registration statement with the Commission on [•], 2020 pursuant to Rule 462(e) under the Act. The registration statement at the date of the Underwriting Agreement, including the Incorporated Documents and the information deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as the “Registration Statement,” and the related prospectus (including the Incorporated Documents) dated [•], 2020 relating to the Shelf Securities is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by
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the Preliminary Prospectus Supplement, together with the free writing prospectus set forth in Schedule [V] to the Pricing Agreement, are hereinafter referred to as the “Disclosure Package.” The Basic Prospectus, as supplemented by the Prospectus Supplement, in the form first used to confirm sales of the Securities (or in the form first made available by the Company to the Underwriters to meet requests of purchasers of the Securities under Rule 173 under the Act), is hereinafter referred to as the “Prospectus.”
We have, without independent inquiry or investigation, assumed that all documents filed with or submitted to the Commission through its Electronic Data Gathering, Analysis and Retrieval (“XXXXX”) system (except for required XXXXX formatting changes) conform to the versions of such documents reviewed by us prior to such formatting.
The primary purpose of our professional engagement was not to establish or confirm factual matters or financial, accounting or quantitative information. Furthermore, many determinations involved in the preparation of the Registration Statement, the Disclosure Package and the Prospectus are of a wholly or partially non-legal character or relate to legal matters outside the scope of our opinion separately delivered to you today in respect of certain matters under the laws of the State of New York and the federal laws of the United States of America. As a result, we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, and we have not ourselves checked the accuracy, completeness or fairness of, or otherwise verified, the information furnished in such documents (except to the extent expressly set forth in our opinion letter separately delivered to you today as to statements included in the Disclosure Package and the Prospectus under the captions “Description of Notes”, “Description of Debt Securities” and “Certain United Kingdom and United States Federal Tax Considerations—United States Federal Income Taxation”). However, in the course of our acting as counsel to the Company in connection with the review of the Registration Statement, the Disclosure Package and the Prospectus, we have generally reviewed and discussed with your representatives and your counsel and with certain officers and employees of, and independent public accountants for, the Company the information furnished, whether or not subject to our check and verification. We have also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants and oral and written statements of officers and other representatives of the Company and others as to the existence and consequence of certain factual and other matters.
On the basis of the information gained in the course of the performance of the services rendered above, but without independent check or verification except as stated above:
| (i) | the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable rules and regulations of the Commission thereunder; and |
| (ii) | nothing has come to our attention that causes us to believe that, insofar as relevant to the offering of the Securities: |
| (a) | on the date of the Underwriting Agreement, the Registration Statement contained any untrue statement of a material fact or omitted to state a material |
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fact required to be stated therein or necessary to make the statements therein not misleading,
| (b) | at [•] [A.M./P.M.] New York City time on [•], 2020, the Disclosure Package contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or |
| (c) | the Prospectus as of the date of the Underwriting Agreement or as of the date hereof contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
In providing this letter to you and the other several Underwriters, we have not been called to pass upon, and we express no view regarding, the financial statements or financial schedules or other financial or accounting data included in the Registration Statement, the Disclosure Package or the Prospectus. In addition, we express no view as to the conveyance of the Disclosure Package or the information contained therein to investors.
This letter is delivered solely to you and the other several Underwriters in connection with the Underwriting Agreement. This letter may not be relied upon by you or the other several Underwriters for any other purpose or relied upon by any other person (including any person acquiring Securities from the several Underwriters) or furnished to any other person without our prior written consent. This letter may, however, without our further written consent, be used and, if necessary, furnished, where it is reasonable to do so and without prior notice to us (to the extent notice is impracticable) (i) for the purpose of responding to requests to review the letter by governmental, regulatory or judicial authorities having competent jurisdiction over the relevant Underwriter and (ii) in connection with the defense of any legal or regulatory proceeding or investigation arising out of the offer and sale of the Securities.
Very truly yours,
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