DIAGEO CAPITAL PLC DIAGEO FINANCE B.V. DIAGEO INVESTMENT CORPORATION Up to U.S.$2,000,000,000 MEDIUM-TERM NOTES Guaranteed as to Payment of Principal, Premium (if any) and Interest by DIAGEO PLC AMENDED AND RESTATED DISTRIBUTION AGREEMENT
Exhibit 1
Up to U.S.$2,000,000,000
MEDIUM-TERM NOTES
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
DIAGEO PLC
MEDIUM-TERM NOTES
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
DIAGEO PLC
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
September
20, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
(“Xxxxxx Xxxxxxx”)
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(“Xxxxxx Xxxxxxx”)
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center,
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Incorporated
4 World Financial Center,
000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Diageo Capital plc, a public limited company incorporated under the laws of Scotland (the
“Scottish Issuer”), Diageo Finance B.V., a private company with limited liability (besloten
vennootschap met beperke aansprakelijkheid) incorporated under Dutch law with its corporate seat at
Amsterdam, The Netherlands (the “Dutch Issuer”), Diageo Investment Corporation, a Delaware
corporation (the “U.S. Issuer”) (each an “Issuer”, and together, the “Issuers”), propose severally
to issue and sell from time to time their Medium-Term Notes, Due 18 Months to 30 Years from Date of
Issue (the “Securities”), at an aggregate initial offering price up to U.S.$2,000,000,000 (or the
equivalent thereof at the time of original issuance in one or more foreign currencies or composite
currencies), and each of them agrees with each of you (individually, an “Agent”, and collectively,
the “Agents”) as set forth in this Agreement. With respect to Securities issued by the U.S.
Issuer, the Securities are to be issued pursuant to the provisions of an indenture, dated as of
June 1, 1999 (the “U.S. Indenture”), among the U.S. Issuer, Diageo plc, as Guarantor (the
“Guarantor”), and Citibank, N.A., as Trustee (the “Trustee”). With respect to Securities issued by
the Scottish Issuer, the Securities are to be issued pursuant to the provisions of an indenture,
dated as of August 3, 1998 (the “Scottish Indenture”), among the Scottish Issuer, the Guarantor and
the Trustee. With respect to the Securities issued by the Dutch Issuer, the Securities are to be
issued pursuant to the provisions of an indenture, dated as of December 8, 2003, among the Dutch
Issuer, the Guarantor and the Trustee (the “Dutch Indenture”, and together with the U.S. Indenture
and the Scottish Indenture, the “Indentures”). The Securities are to be unconditionally guaranteed
(the “Guarantees”) as to payment of principal and interest by the Guarantor. Because the
Securities are limited in aggregate initial offering price to U.S.$2,000,000,000 (or the equivalent
thereof at the time of original issuance in one or more foreign currencies or composite
currencies), an issuance of the Securities by one of the Issuers will correspondingly reduce the
amount of Securities available to be issued by the other Issuers.
Subject to the terms and conditions stated herein and to the reservation by each of the
Issuers and the Guarantor of the right to sell Securities directly on their own behalf, each of the
Issuers hereby (i) appoints each Agent as an agent of such Issuer for the purpose of soliciting and
receiving offers to purchase Securities from such Issuer pursuant to Section II(a) hereof and (ii)
agrees that, except as otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement (each a “Terms
Agreement”), which may be oral and confirmed in writing or which may be substantially in the form
of Annex I hereto, relating to such sale in accordance with Section II(b) hereof.
The Issuers and the Guarantor have filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form F-3 (Registration No. 333-110804) including a
prospectus, relating to the Securities to be issued severally from time to time by the Issuers.
The applicable Issuer also has filed with, or proposes to file with, the Commission pursuant to
Rule 424 under the Securities Act of 1933, as amended (the “Securities Act”), a Prospectus
Supplement specifically relating to the Securities (the “Prospectus Supplement”). Upon request,
but not without the agreement of each applicable Agent, the applicable Issuer may also file a Rule
462(b) Registration
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Statement in accordance with Rule 462(b) under the Securities Act. The registration statement
as amended to the Commencement Date (as hereinafter defined) and any Rule 462(b) Registration
Statement that becomes effective thereafter is hereinafter referred to as the “Registration
Statement” and the related prospectus, as amended, covering the Securities in the form first used
to confirm sales of the Securities is hereinafter referred to as the “Basic Prospectus”. The Basic
Prospectus as supplemented by the Prospectus Supplement specifically relating to the Securities in
the form first used to confirm sales of the Securities is hereinafter referred to as the
“Prospectus”. Any reference in this Agreement to the Registration Statement, the Basic Prospectus,
any preliminary form of Prospectus (including the Basic Prospectus, a “preliminary prospectus”)
previously filed with the Commission pursuant to Rule 424 or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3
under the Securities Act which were filed under the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) on or
before the date of this Agreement or the date of the Basic Prospectus, any preliminary prospectus
or the Prospectus, as the case may be; and any reference to “amend”, “amendment” or “supplement”
with respect to the Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under the Exchange Act after
the date of this Agreement, or the date of the Basic Prospectus, any preliminary prospectus or the
Prospectus, as the case may be, which are deemed to be incorporated by reference therein. Any
reference to “Rule 462(b) Registration Statement” shall be deemed to refer to a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to the offering covered
by the initial Registration Statement. The obligations of the Issuers under this Agreement shall
be several and not joint.
I.
The applicable Issuer (as to itself) and the Guarantor (as to each Issuer and to itself) represents
and warrants to each of the Agents that:
(a) The Registration Statement has become effective, no stop order suspending the
effectiveness of the Registration Statement is in effect and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not contain, and, as amended
or supplemented, if applicable, did not or will not, as the case may be, contain at the time of
such amendment or supplement, any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply, as the case may be, in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder, (iii) the Prospectus does not or
will not, as the case may be, as of the date of the Prospectus and as at the Closing Date, contain
and, as amended or supplemented, if applicable, at the time of such amendment or supplement, will
not
- 3 -
contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this paragraph I(b) do not
apply (A) to statements or omissions in the Registration Statement or the Prospectus, as amended or
supplemented, if applicable, based upon information concerning any Agent furnished to the Issuers
or the Guarantor in writing by such Agent expressly for use therein or (B) to the Statement of
Eligibility and Qualification of the Trustee on Form T-1 and (iv) each document, if any, filed or
to be filed pursuant to the Exchange Act and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with the Exchange Act.
(c) Each preliminary prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder.
(d) Each Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended,
and has been duly authorized, executed and delivered by the applicable Issuer and duly authorized,
executed and delivered by the Guarantor and is a valid and legally binding agreement of such Issuer
and the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors’ rights and to general equity principles.
(e) There has not been any material adverse identifiable change, or any development involving
a prospective material adverse identifiable change in the condition, financial or otherwise, or in
the earnings, business or operations of the Guarantor and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(f) The financial statements, and the related notes thereto, included in the Registration
Statement and the Prospectus present fairly the consolidated financial position of the Guarantor,
and its consolidated subsidiaries as of the dates indicated and the results of its operations and
the changes in its consolidated cash flows for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles applied on a
consistent basis; the supporting schedules included in the Registration Statement present fairly
the information required to be stated therein; and, if applicable, the pro forma financial
information, and the related notes thereto, included in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable requirements of the Securities Act
and is based upon good faith estimates and assumptions believed by the Guarantor to be reasonable.
(g) The execution and delivery by the Guarantor of, and the performance by the Guarantor of
its obligations under, this Agreement, any applicable Terms Agreement, the Guarantees and the
Indentures will not contravene any provision of the Memorandum and Articles of Association of the
Guarantor or any agreement or other instrument binding upon the Guarantor or any of its
subsidiaries, in each case, that is material to the
- 4 -
Guarantor and its subsidiaries, taken as a whole, or any material judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Guarantor or any such
subsidiary.
II.
(a) On the basis of the representations and warranties of each of the Issuers and the
Guarantor, and subject to the terms and conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of each of the Issuers and the Guarantor, to use its
reasonable best efforts to solicit and receive offers to purchase the Securities from the Issuers
upon the terms and conditions set forth in the Prospectus as amended or supplemented from time to
time. Each of the Issuers and the Guarantor reserve the right (i) to accept offers to purchase
Securities, to solicit offers to purchase Securities and to sell Securities to or through one or
more agents other than the Agents or to agree with another agent that such agent shall become an
Agent hereunder, in each case, without obtaining the consent of the Agents, provided, however, that
the Guarantor will notify the Agents promptly following the issuance and sale of any Security
issued and sold in respect of any offer so accepted and (ii) to sell, and may solicit and accept
offers to purchase, Securities directly on their own behalf, and, in the case of any such sale not
resulting from a solicitation made by any Agent, no commission will be payable with respect to such
sale.
If any other agent is to be named as an Agent under this Agreement, such agent and the Issuers
and the Guarantor will execute an agreement substantially in the form of Annex III hereto,
whereupon such agent shall become a party to this Agreement and shall be subject to the same
obligations and receive the same benefits as an Agent would be subject to or would receive
hereunder. If any other agent is to be appointed as Agent by the applicable Issuer and the
Guarantor solely in connection with a particular issue of Securities, such agent and the applicable
Issuer and the Guarantor will execute an agreement substantially in the form of Annex IV hereto.
Procedural details relating to the issue and delivery of Securities, the solicitation of
offers to purchase Securities and the payment in each case therefor shall be as set forth in the
Administrative Procedures, attached hereto as Annex II, as they may be amended from time to time by
written agreement between the Agents, the Issuers and the Guarantor (the “Procedures”). The
provisions of the Procedures shall apply to all transactions contemplated hereunder other than
those made pursuant to a Terms Agreement. Each Agent and each of the Issuers and the Guarantor
agree to perform the respective duties and obligations specifically provided to be performed by
each of them in the Procedures. The Issuers and the Guarantor will furnish to the Trustee a copy of
the Procedures as from time to time in effect.
Each of the Issuers as to itself reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the solicitation of offers to
purchase the Securities from such Issuer. As soon as practicable after receipt of notice from any
of the Issuers, the Agents will suspend solicitation of offers to
- 5 -
purchase Securities from such Issuer until such time as such Issuer has advised the Agents
that such solicitation may be resumed. While such solicitation is suspended, such Issuer shall not
be required to deliver any certificates, opinions or letters in accordance with Sections V(i), V(j)
and V(k); provided, however, that if the Registration Statement or Prospectus is amended or
supplemented during the period of suspension (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Securities or for a change the Agents deem to be immaterial), no Agent
shall be required to resume soliciting offers to purchase Securities until such Issuer has
delivered such certificates, opinions and letters as such Agent may reasonably request.
Unless otherwise agreed by the applicable Issuer and the applicable Agent at the time of any
sale of a Security by such Issuer through such Agent, each Issuer agrees to pay each Agent a
commission (or grant an equivalent discount) at the time of settlement of any sale of a Security by
such Issuer as a result of a solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount (or, in the case of zero coupon or deep discount
Securities, the following applicable percentage of the aggregate offering price) of such Security
sold:
| Commission | ||
| (percentage of | ||
| aggregate amount | ||
| Range of Maturities | of Securities sold) | |
From 18 months to less than 2 years |
0.200% | |
From 2 years to less than 3 years |
0.250% | |
From 3 years to less than 4 years |
0.350% | |
From 4 years to less than 5 years |
0.450% | |
From 5 years to less than 6 years |
0.500% | |
From 6 years to less than 7 years |
0.550% | |
From 7 years to less than 10 years |
0.600% | |
From 10 years to less than 15 years |
0.625% | |
From 15 years to less than 20 years |
0.700% | |
From 20 years to and including 30 years |
0.750% |
Each Agent shall communicate to the applicable Issuer, orally or in writing, each offer to
purchase Securities received by such Agent as agent that in its judgment should be considered by
such Issuer. Such Issuer shall have the sole right to accept offers to purchase Securities and may
reject any offer in whole or in part. Each Agent shall have the right to reject any offer to
purchase Securities that it considers to be unacceptable, and any such rejection shall not be
deemed a breach of its agreements contained herein.
- 6 -
(b) Each sale of Securities to any Agent as principal shall be made in accordance with the
terms of this Agreement and (unless the applicable Issuer, the Guarantor and such Agent shall
otherwise agree) a Terms Agreement which will provide for the sale of such Securities to, and the
purchase thereof by, such Agent. A Terms Agreement may also specify certain provisions relating to
the reoffering of such Securities by such Agent. The commitment of any Agent to purchase Securities
as principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed to have been
made on the basis of the representations and warranties of the applicable Issuer and the Guarantor
herein contained and shall be subject to the terms and conditions herein set forth. Each Terms
Agreement shall specify the principal amount of Securities to be purchased by any Agent pursuant
thereto, the price to be paid to the applicable Issuer for such Securities, any provisions relating
to rights of, and default by, underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment for such Securities. Such
Terms Agreement shall also specify requirements, if any, for opinions of counsel, accountants’
letters and officers’ certificates pursuant to Sections V and VI hereof.
For each sale of Securities to an Agent as principal that is not made pursuant to a Terms
Agreement, the procedural details relating to the issue and delivery of such Securities and payment
therefor shall be as set forth in the Procedures. For each such sale of Securities to an Agent as
principal as to which no other commission is agreed, the applicable Issuer agrees to pay such Agent
a commission (or grant an equivalent discount) as provided in Section II(a) hereof and in
accordance with the schedule set forth therein. Securities may also be sold by any Agent to or
through dealers who may resell to investors. The Agents may pay all or part of their discount or
commission to such dealers.
Each time and date of delivery of and payment for Securities to be purchased by an Agent as
principal, whether set forth in a Terms Agreement or in accordance with the Procedures, is referred
to herein as a “Time of Delivery”.
(c) Each Issuer and the Guarantor acknowledge that the obligations of the Agents under this
Agreement are several and not joint.
(d) The documents required to be delivered pursuant to Section VI hereof on the Commencement
Date (as defined below) shall be delivered to the Agents at the offices of Xxxxxxxx & Xxxxxxxx XXX,
0 Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX at 9:00 a.m., New York City time, on the date of this Agreement,
which date and time of such delivery may be postponed by agreement among the Agents, the Issuers
and the Guarantor but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any Terms Agreement is
executed (such time and date being referred to herein as the “Commencement Date”).
III.
Each Agent agrees, with respect to any Security denominated in a currency other
- 7 -
than U.S. dollars, as agent, directly or indirectly, not to solicit offers to purchase, and as
principal under any Terms Agreement or otherwise, directly or indirectly, not to offer, sell or
deliver, such Security except as permitted by applicable law of the country issuing such currency.
IV.
(a) Each Agent severally represents and agrees that (i) it has complied and will comply with
all applicable provisions of the Financial Services and Markets Xxx 0000 (the “FSMA”) with respect
to anything done by it in relation to the Securities in, from or otherwise involving the United
Kingdom and (ii) it has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by it in connection with the issue and sale of such
Securities in circumstances in which Section 21(1) of the FSMA does not apply to the applicable
Issuer or the Guarantor.
(b) Other than as provided below, each Agent severally represents and agrees that in relation
to Securities issued by the Scottish Issuer, it will only solicit sales of, and communicate to the
Scottish Issuer offers to purchase, Securities with (i) minimum denominations of $1,000 or more and
(ii) principal amount of $5,000,000 or more. If an Agent solicits sales of, and communicates to
the Scottish Issuer, Securities that do not meet the above criteria, such Agent severally
represents and agrees that the Securities will otherwise meet the applicable requirements of The
New York Stock Exchange, Inc. necessary to list the Securities.
(c) Each Agent severally represents and agrees in relation to Securities issued by the Dutch
Issuer that bearer zero coupon Securities and other Securities which qualify as savings
certificates as defined in the Dutch Savings Certificates Act (Wet inzake spaarbewijzen) may only
be transferred or accepted through the mediation of either the relevant Issuer or a Member of
Euronext Amsterdam N.V. with due observance of the Savings Certificates Act (including registration
requirements), provided that no mediation is required in respect of (i) the initial issue of those
Securities to the first holders thereof, (ii) any transfer or acceptance by individuals who do not
act in the conduct of a profession or trade and (iii) the transfer or acceptance of those
Securities, if they are physically issued outside The Netherlands and are not distributed in The
Netherlands in the course of primary trading or immediately thereafter.
(d) Each Agent severally represents and agrees that in relation to each Member State of the
European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member
State”) with effect from and including the date on which the Prospectus Directive is implemented in
that Member State (the “Relevant Implementation Date”) it has not made and will not make an offer
of the notes to the public in that Relevant Member State, except that it may, with effect from and
including the Relevant Implementation Date, make an offer of the notes to the public in that
Relevant Member State:
- 8 -
(i) in (or in Germany, where the offer starts within) the period beginning on the date
of publication of a prospectus in relation to those notes which has been approved by the
competent authority in that Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent authority in that Relevant
Member State, all in accordance with the Prospectus Directive and ending on the date which
is 12 months after the date of such publication;
(ii) at any time to legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities;
(iii) at any time to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last
annual or consolidated accounts; or
(iv) at any time in any other circumstances which do not require the publication by
the relevant Issuer of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of the notes to the public” in
relation to any notes in any Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and the notes to be offered so as to
enable an investor to decide to purchase or subscribe the notes, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member State and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
V.
Each of the Issuers (as to itself) and the Guarantor (as to each of the Issuers and to itself)
covenant and agree with each Agent:
(a) (i) To make no amendment or supplement to the Registration Statement or the Prospectus (A)
prior to the Commencement Date which shall be reasonably disapproved by any Agent promptly after
reasonable notice thereof or (B) after the date of any Terms Agreement or other agreement by an
Agent to purchase Securities as principal and prior to the related Time of Delivery which shall be
reasonably disapproved by any Agent party to such Terms Agreement or so purchasing as principal
promptly after reasonable notice thereof; (ii) to prepare, with respect to any Securities to be
sold through or to such Agent pursuant to this Agreement, a Pricing Supplement containing Sale
Information (as defined in Annex II hereto) with respect to such Securities in a form previously
approved by such Agent and to file such Pricing Supplement pursuant to Rule 424(b) under the Act
not later than the close of business of the Commission on the fifth business day after the date on
which such Pricing Supplement is first used; (iii) to make
- 9 -
no amendment or supplement to the Registration Statement or Prospectus other than any Pricing
Supplement containing only Sale Information with respect to the relevant Securities, at any time
prior to having afforded each Agent a reasonable opportunity to review and comment thereon;
provided, however, that the requirements in clauses (i) and (iii) of this Section V(a) shall not
apply with respect to an amendment or supplement which relates to Securities sold through or to
agents other than the Agents and contains no new information other than the terms of such
Securities and the plan of distribution thereof; (iv) to maintain without amendment the Guarantee
for so long as there are any Securities outstanding; (v) to file promptly all reports or
information statements required to be filed by such Issuer or the Guarantor with the Commission
pursuant to Section 13(a), 13(c), or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of the Securities, and during such
same period to advise such Agent, promptly after any Issuer or the Guarantor receives notice
thereof, of the time when any amendment to the Registration Statement has been filed or has become
effective or any supplement to the Prospectus or any amended Prospectus (other than any Pricing
Supplement that relates to Securities not purchased through or by such Agent) has been filed with
the Commission, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the Commission for the
amendment or supplement of the Registration Statement or Prospectus or for additional information;
and (vi) in the event of the issuance of any such stop order or of any such order preventing or
suspending the use of any such prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal.
(b) Promptly from time to time to take such action as such Agent reasonably may request to
qualify the Securities for offering and sale under the securities laws of such jurisdictions as
such Agent may request and to comply with such laws so as to permit the continuance of sales and
dealings therein for as long as may be necessary to complete the distribution or sale of the
Securities, provided, however, that in connection therewith none of the Issuers nor the Guarantor
shall be required to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(c) To furnish such Agent with a copy of the Registration Statement and each amendment
thereto, with a copy of the Prospectus and each amendment or supplement thereto, and additional
copies of the Prospectus as each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Procedures), in the form in which it is filed with the Commission
pursuant to Rule 424 under the Act, and with copies of the documents incorporated by reference
therein, all in such quantities as such Agent may reasonably request from time to time; and if at
any time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary to amend or supplement the Prospectus or to file under the
- 10 -
Exchange Act any document incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify such Agent promptly by telephone
(with confirmation in writing) and request such Agent, in its capacity as agent of the Issuers and
the Guarantor, to suspend solicitation of offers to purchase Securities from the Issuers (and, if
so notified such Agent shall cease such solicitations as soon as practicable, but in any event not
later than one business day after notification); and if the Issuers or the Guarantor shall decide
to amend or supplement the Registration Statement or the Prospectus as then amended or
supplemented, to so advise such Agent promptly by telephone (with confirmation in writing) and to
prepare and to cause to be filed with the Commission an amendment or supplement to the Registration
Statement or the Prospectus as then amended or supplemented that will correct such statement or
omission or effect such compliance; provided, however, that if, at any time prior to the expiration
of nine months after the Time of Delivery with respect to any Securities, such Agent continues to
own Securities purchased from any Issuer by such Agent as principal, such Issuer and the Guarantor
shall promptly prepare and deliver to such Agent such an amendment or supplement that will correct
such statement or omission; provided further, however, that if at any time nine months or more
after the Time of Delivery with respect to any Securities, such Agent continues to own Securities
purchased from any Issuer by such Agent as principal, such Issuer and the Guarantor, upon such
Agent’s request but at the sole expense of such Agent, shall prepare and deliver to such Agent as
many copies as such Agent shall request of such an amendment or supplement. If all documents,
certificates, opinions and letters furnished to the Agents pursuant to Section V(e), (i), (j) and
(k) in connection with the preparation and filing of such amendment or supplement are satisfactory
in all respects to the Agents, upon the filing with the Commission of such amendment or supplement
to the Prospectus or upon the effectiveness of such amendment to the Registration Statement, the
Agents will resume the solicitation of offers to purchase Securities hereunder.
(d) To make generally available to its security holders as soon as practicable, but in any
event not later than eighteen months after (i) the effective date of the Registration Statement,
(ii) the effective date of each post-effective amendment to the Registration Statement, and (iii)
the date of each filing by the Guarantor with the Commission of an annual report on Form 20-F that
is incorporated by reference in the Registration Statement, an earning statement of the Guarantor
and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of the Guarantor, Rule
158).
(e) For a period of three years after the completion of the sale of all the Securities, to
furnish to such Agent copies of all reports or other communications of the Guarantor (financial or
other) furnished to stockholders, and deliver to such Agent as soon as they are available, copies
of any reports and financial statements of such Issuer or the Guarantor furnished to or filed with
the Commission or any United States or United Kingdom or other European national securities
exchange on which any class of securities of such Issuer or the Guarantor is listed.
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(f) That, from the date of any Terms Agreement with such Agent and continuing to and including
the related Time of Delivery, not to offer, sell, contract to sell or otherwise dispose of, in each
case in the United States, any debt securities of the Issuers or the Guarantor which both mature
more than one year after such Time of Delivery and are substantially similar to the Securities,
without the prior written consent of such Agent, such consent not to be unreasonably withheld.
(g) That each acceptance by any of the Issuers of an offer to purchase Securities hereunder
(including any purchase by such Agent as principal not pursuant to a Terms Agreement), and each
execution and delivery by any of the Issuers and the Guarantor of a Terms Agreement with such
Agent, and each amendment or supplement of the Registration Statement or the Basic Prospectus by
any of the Issuers or the Guarantor, shall be deemed to be an affirmation to such Agent that the
representations and warranties of such Issuer and the Guarantor contained in or made pursuant to
this Agreement are true and correct as of the date of such acceptance or of such Terms Agreement or
of such amendment or supplement, as the case may be, as though made at and as of such date, and an
undertaking that such representations and warranties will be true and correct as of the settlement
date for the Securities relating to such acceptance or as of the Time of Delivery relating to such
sale, as the case may be, as though made at and as of such date (except that such representations
and warranties shall be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to each such date).
(h) That reasonably in advance of each time the Registration Statement or the Prospectus shall
be amended or supplemented other than by a prospectus supplement containing only terms of a
particular offering of securities and each time any of the Issuers sells Securities to such Agent
as principal pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of an
opinion or opinions by Xxxxx Xxxx & Xxxxxxxx, counsel to the Agents, as a condition to the purchase
of Securities pursuant to such Terms Agreement, such Issuer and the Guarantor shall furnish to such
counsel such papers and information as they may reasonably request to enable them to furnish to
such Agent the opinion or opinions referred to in Section VI(d) hereof.
(i) (A) That each time the Registration Statement or Prospectus shall be amended or
supplemented other than by a prospectus supplement containing only terms of a particular offering
of securities and each time any of the Issuers sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the delivery of an opinion under this
Section V(i)(A) as a condition to the purchase of Securities pursuant to such Terms Agreement, such
Issuer and the Guarantor shall furnish or cause to be furnished forthwith to such Agent a written
opinion of Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Issuers and the Guarantor, or
other counsel for the Issuers and the Guarantor satisfactory to such Agent, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such sale, as the case may be,
in form reasonably satisfactory to such Agent, to the effect that such Agent may rely on the
opinion of such counsel referred to in Section VI(a) hereof which was last furnished to such Agent
to the same extent as though it were dated the date of
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such letter authorizing reliance (except that in the case of an opinion delivered at a time
other than a Time of Delivery or the filing of the Guarantor’s annual report on Form 20-F such
opinion need cover only the matters referred to in the last paragraph of Section VI(a) and except
that the statements in such last opinion shall be deemed to relate to the Registration Statement
and Prospectus as amended and supplemented to such date) or, in lieu of such opinion, an opinion of
the same tenor as the opinion of such counsel referred to in Section VI(a) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and supplemented to such date.
(B) That each time the Registration Statement or the Prospectus shall be amended or
supplemented other than by either a prospectus supplement containing only terms of a particular
offering of securities and each time any of the Issuers sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section V(i)(B) as a condition to the purchase of Securities pursuant to such Terms Agreement,
such Issuer and the Guarantor shall furnish or cause to be furnished forthwith to such Agent a
written opinion of Xxxxxxxxx and May, English counsel for the Guarantor, or other counsel for the
Guarantor satisfactory to such Agent, dated the date of such amendment, supplement, incorporation
or Time of Delivery relating to such sale, as the case may be, in form and substance reasonably
satisfactory to such Agent, to the effect that such Agent may rely on the opinion of such counsel
referred to in Section VI(b) hereof which was last furnished to such Agent to the same extent as
though it were dated the date of such letter authorizing reliance (except that the statements in
such last opinion shall be deemed to relate to the Registration Statement or the Prospectus as
amended and supplemented to such date) or, in lieu of such opinion, an opinion of the same tenor as
the opinion of such counsel referred to in Section VI(b) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such date.
(C) That each time the Registration Statement or the Prospectus shall be amended or
supplemented other than by a prospectus supplement containing only terms of a particular offering
of securities and each time the Scottish Issuer sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section V(i)(C) as a condition to the purchase of Securities pursuant to such Terms Agreement,
such Issuer shall furnish or cause to be furnished forthwith to such Agent a written opinion of
Xxxxxx Xxxxxx LLP, Scottish counsel for the Scottish Issuer and the Guarantor, or other counsel for
the Scottish Issuer and the Guarantor satisfactory to such Agent, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as the case may be, in form
reasonably satisfactory to such Agent, to the effect that such Agent may rely on the opinion of
such counsel referred to in Section VI(c) hereof which was last furnished to such Agent to the same
extent as though it were dated the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the Registration Statement or the
Prospectus as amended and supplemented to such date) or, in lieu of such opinion, an opinion of the
same tenor as the opinion of such counsel referred to in Section VI(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and supplemented to such date.
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(D) That each time the Registration Statement or the Prospectus shall be amended or
supplemented other than by either a prospectus supplement containing only terms of a particular
offering of securities and each time the Dutch Issuer sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section V(i)(D) as a condition to the purchase of Securities pursuant to such Terms Agreement,
such Issuer and the Guarantor shall furnish or cause to be furnished forthwith to such Agent a
written opinion of De Brauw Blackstone Westbroek N.V., Dutch counsel for the Dutch Issuer and the
Guarantor, or other counsel for the Dutch Issuer and the Guarantor satisfactory to such Agent,
dated the date of such amendment, supplement, incorporation or Time of Delivery relating to such
sale, as the case may be, in form and substance reasonably satisfactory to such Agent, to the
effect that such Agent may rely on the opinion of such counsel referred to in Section VI(d) hereof
which was last furnished to such Agent to the same extent as though it were dated the date of such
letter authorizing reliance (except that the statements in such last opinion shall be deemed to
relate to the Registration Statement or the Prospectus as amended and supplemented to such date)
or, in lieu of such opinion, an opinion of the same tenor as the opinion of such counsel referred
to in Section VI(d) hereof but modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to such date.
(j) That each time the Registration Statement or the Prospectus shall be amended or
supplemented to include financial statements or other financial information which are different
from the financial statements or other financial information then included in the Registration
Statement or the Prospectus, including by the filing of the Guarantor’s annual report on Form 20-F
or the Guarantor’s report on Form 6-K containing consolidated financial statements for the first
six months of the Guarantor’s then current fiscal year, and each time any of the Issuers sells
Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section V(j) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the applicable Issuer and the Guarantor shall cause
the independent auditors who have audited the financial statements of such Issuer, the Guarantor
and their subsidiaries included in the Registration Statement and the Prospectus forthwith to
furnish such Agent a letter, dated the date of such amendment, supplement or Time of Delivery
relating to such sale, as the case may be, in form reasonably satisfactory to such Agent, of the
same tenor as the letter referred to in Section VI(f) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or supplemented to the date of such letter,
with such changes as may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of such Issuer and the Guarantor, to the extent
such financial statements and other information are available as of a date not more than three
business days prior to the date of such letter; provided, however, that, with respect to any
financial information or other matter, such letter may reconfirm as true and correct at such date
as though made at and as of such date, rather than repeat, statements with respect to such
financial information or other matter made in the letter referred to in Section VI(f) hereof which
was last furnished to such Agent.
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(k) That each time the Registration Statement or the Prospectus shall be amended or
supplemented other than by a prospectus supplement containing only terms of a particular offering
of securities and each time any of the Issuers sells Securities to such Agent as principal and the
applicable Terms Agreement specifies the delivery of a certificate under this Section V(k) as a
condition to the purchase of Securities pursuant to such Terms Agreement, the applicable Issuer and
the Guarantor shall furnish or cause to be furnished forthwith to such Agent a certificate or
certificates, dated the date of such supplement, amendment or Time of Delivery relating to such
sale, as the case may be, in such form and executed by such officers of such Issuer and the
Guarantor as shall be reasonably satisfactory to such Agent, to the effect that the statements
contained in the certificate or certificates referred to in Section VI(j) hereof which was last
furnished to such Agent are true and correct in all material respects at such date as though made
at and as of such date (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or, in lieu of such
certificate or certificates, a certificate or certificates of the same tenor as the certificate or
certificates referred to in said Section VI(j) but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date; each such officer may certify to the
best of his or her knowledge.
(l) To offer to any person who has agreed to purchase Securities as the result of an offer to
purchase solicited by such Agent the right to refuse to purchase and pay for such Securities if, on
the related settlement date fixed pursuant to the Procedures, any condition set forth in Section
VI(g), (h), (i) or (j) hereof shall not have been satisfied (it being understood that the judgment
of such person with respect to the impracticability or inadvisability of such purchase of
Securities shall be substituted, for purposes of this Section V(l), for the respective judgment of
an Agent with respect to certain matters referred to in such Sections VI(g) and (i), and that such
Agent shall have no duty or obligation whatsoever to exercise the judgment permitted under such
Section VI(g) and (i) on behalf of any such person).
(m) Each of the Issuers (as to itself) and the Guarantor (as to each of the Issuers and to
itself) covenant and agree with each Agent that the Issuers and the Guarantor will pay or cause to
be paid the following: (i) the fees, disbursements and expenses of the Issuers’ and the
Guarantor’s counsel and accountants in connection with the issuance of the Securities, the
preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, the
Prospectus and any Pricing Supplements and all other amendments and supplements thereto, and the
mailing and delivering of copies thereof to such Agent; (ii) the reasonable fees, disbursements and
expenses of counsel for the Agents in connection with the establishment and updating of the program
contemplated hereby, any opinions to be rendered by such counsel hereunder and the transactions
contemplated hereunder; (iii) the cost of printing, preparing by word processor or reproducing any
Terms Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities; (iv) all expenses
in connection with the qualification of the Securities for offering and sale under state securities
laws as provided in Section V(b) hereof, including fees and disbursements of counsel for the Agents
in
- 15 -
connection with such qualification and in connection with the Blue Sky and legal investment
surveys; (v) any fees charged by securities rating services for rating the Securities; (vi) the
cost of preparing the Securities (including any global Securities); and (vii) the reasonable fees
and expenses of the Trustee and any agent of the Trustee and any transfer or paying agent of the
Issuers or of the Guarantor and the reasonable fees and disbursements of counsel for the Trustee
and any such agent in connection with the Indentures and the Securities. Except as provided in
Sections VII and VIII hereof, each Agent shall pay all other expenses it incurs.
VI.
The obligation of any Agent, as agent of each of the Issuers and the Guarantor, at any time
(“Solicitation Time”) to solicit offers to purchase the Securities and the obligation of any Agent
to purchase Securities as principal, pursuant to any Terms Agreement or otherwise, shall in each
case be subject, in such Agent’s discretion, to the condition that all representations and
warranties and other statements of the applicable Issuer and the Guarantor herein (and, in the case
of an obligation of an Agent under a Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct at and as of the Commencement Date and any applicable date referred
to in Section V(k) hereof that is prior to such Solicitation Time or Time of Delivery, as the case
may be, and at and as of such Solicitation Time or Time of Delivery, as the case may be, the
condition that prior to such Solicitation Time or Time of Delivery, as the case may be, such Issuer
and the Guarantor shall have performed in all material respects all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Issuers and the Guarantor, or other
counsel for the Issuers and the Guarantor satisfactory to such Agent, shall have furnished to such
Agent their written opinion, dated the Commencement Date and each applicable date referred to in
Section V(i)(A) hereof that is on or prior to such Solicitation Time or Time of Delivery, as the
case may be, in form and substance satisfactory to such Agent, to the effect that:
(i) if applicable, the U.S. Issuer has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware;
(ii) assuming the Scottish Indenture has been duly authorized, executed and delivered
by the Scottish Issuer insofar as the laws of Scotland are concerned, the Scottish
Indenture has been duly executed and delivered by the Scottish Issuer, and, assuming the
Scottish Indenture has been duly authorized, executed and delivered by the Guarantor
insofar as the laws of England are concerned, the Scottish Indenture has been duly executed
and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act of
1939 and constitutes a valid and legally binding obligation of the Scottish Issuer and the
Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency,
- 16 -
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles;
(iii) assuming the Dutch Indenture has been duly authorized, executed and delivered by
the Dutch Issuer insofar as the laws of the Netherlands are concerned, the Dutch Indenture
has been duly executed and delivered by the Dutch Issuer, and, assuming the Dutch Indenture
has been duly authorized, executed and delivered by the Guarantor insofar as the laws of
England are concerned, the Dutch Indenture has been duly executed and delivered by the
Guarantor, has been duly qualified under the Trust Indenture Act of 1939 and constitutes a
valid and legally binding obligation of the Dutch Issuer and the Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles;
(iv) the Calculation Agency Agreement, dated as of December 8, 2003 (the “Calculation
Agency Agreement”) among the Scottish Issuer, the Dutch Issuer, the U.S. Issuer, the
Guarantor and Citibank, N.A. has been duly authorized, executed and delivered by the U.S.
Issuer and, assuming the Calculation Agency Agreement has been duly authorized, executed
and delivered by the Scottish Issuer insofar as the laws of Scotland are concerned, the
Calculation Agency Agreement has been duly executed and delivered by the Scottish Issuer
and, assuming the Calculation Agency Agreement has been duly authorized, executed and
delivered by the Dutch Issuer insofar as the laws of the Netherlands are concerned, the
Calculation Agency Agreement has been duly executed and delivered by the Dutch Issuer and,
assuming the Calculation Agency Agreement has been duly authorized, executed and delivered
by the Guarantor insofar as the laws of England are concerned, the Calculation Agency
Agreement has been duly executed and delivered by the Guarantor, and constitutes a valid
and legally binding obligation of the U.S. Issuer, the Dutch Issuer, the Scottish Issuer
and the Guarantor enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles;
(v) the Exchange Rate Agency Agreement, dated as of December 8, 2003 (the “Exchange
Rate Agency Agreement”) among the Scottish Issuer, the Dutch Issuer, the U.S. Issuer, the
Guarantor and Citibank, N.A. has been duly authorized, executed and delivered by the U.S.
Issuer and, assuming the Exchange Rate Agency Agreement has been duly authorized, executed
and delivered by the Scottish Issuer insofar as the laws of Scotland are concerned, the
Exchange Rate Agency Agreement has been duly executed and delivered by the Scottish Issuer
and, assuming the Exchange Rate Agency Agreement has been duly authorized, executed and
delivered by the Dutch Issuer insofar as the laws of the Netherlands
- 17 -
are concerned, the Exchange Rate Agency Agreement has been duly authorized, executed
and delivered by the Dutch Issuer and, assuming the Exchange Rate Agency Agreement has been
duly authorized, executed and delivered by the Guarantor insofar as the laws of England are
concerned, the Exchange Rate Agency Agreement has been duly executed and delivered by the
Guarantor, and constitutes a valid and legally binding obligation of the U.S. Issuer, the
Dutch Issuer, the Scottish Issuer and the Guarantor enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors’ rights and to
general equity principles;
(vi) the U.S. Indenture has been duly authorized, executed and delivered by the U.S.
Issuer and, assuming the U.S. Indenture has been duly authorized, executed and delivered by
the Guarantor insofar as the laws of England are concerned, the U.S. Indenture has been
duly executed and delivered by the Guarantor, has been duly qualified under the Trust
Indenture Act of 1939, and constitutes a valid and legally binding obligation of the U.S.
Issuer and the Guarantor enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity principles;
(vii) the Securities have been duly authorized by the U.S. Issuer and, assuming the
Securities have been duly authorized by the Scottish Issuer insofar as the laws of Scotland
are concerned, the Securities have been duly authorized by the Scottish Issuer and,
assuming the Securities have been duly authorized by the Dutch Issuer insofar as the laws
of the Netherlands are concerned, the Securities have been duly authorized by the Dutch
Issuer and when the terms of a particular Security and of its issuance and sale have been
duly authorized and established by all necessary corporate action in conformity with the
applicable Indenture, and such Security has been duly completed, executed, authenticated
and issued in accordance with the applicable Indenture and delivered against payment in
accordance with this Agreement, such Security will constitute valid and legally binding
obligations of the applicable Issuer, enforceable in accordance with their terms and
entitled to the benefits provided by the applicable Indenture and Guarantee, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general equity
principles; when a particular Security has been duly authorized, executed, authenticated,
issued and delivered by the Scottish Issuer, the Dutch Issuer, or the U.S. Issuer, and the
Guarantee corresponding to such Security has been duly executed, issued and delivered by
the Guarantor, such Guarantee will constitute a valid and legally binding obligation of the
Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles; in rendering
such opinion at any time other than
- 18 -
pursuant to a Terms Agreement such counsel may assume that at the time of issuance,
sale and delivery of each particular Security the authorization of the Securities will not
have been modified or rescinded and, with respect to each Security, that such Security and
the Guarantee endorsed thereon will conform to the respective forms of the Securities
examined by them (such latter assumption may be made even if such opinion is rendered
pursuant to a Terms Agreement) and that the Trustee’s certificate of authentication of such
Note will be manually signed by one of the Trustee’s authorized officers; such counsel may
also assume that at the time of the issuance, sale and delivery of each particular Security
there will not have occurred any change in law affecting the validity, legally binding
character or enforceability of such Security or the corresponding Guarantee and that the
issuance, sale and delivery of such Security and such Guarantee, all of the terms of such
Security and such Guarantee and the performance by the Issuers and the Guarantor of their
respective obligations thereunder will comply with applicable law and with each requirement
or restriction imposed by any court or governmental body having jurisdiction over the
Issuers or the Guarantor and will not result in a default under or a breach of any
agreement or instrument then binding upon the Issuers or the Guarantor;
(viii) this Agreement and any applicable Terms Agreement have been duly authorized,
executed and delivered by the U.S. Issuer and assuming this Agreement and any applicable
Terms Agreement have been duly authorized, executed and delivered by the Scottish Issuer
insofar as the laws of Scotland are concerned, have been duly executed and delivered by the
Scottish Issuer and, assuming this Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Dutch Issuer insofar as the laws of the
Netherlands are concerned, have been duly authorized, executed and delivered by the Dutch
Issuer and, assuming this Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Guarantor insofar as the laws of England are
concerned, have been duly executed and delivered by the Guarantor;
(ix) the execution and delivery by the Issuers and the Guarantor of the Indentures and
the Distribution Agreement do not, and the completion, execution and issuance of each
particular Security and Guarantee in accordance with the Indentures and the sale by the
applicable Issuer of such Security in accordance with this Agreement and any applicable
Terms Agreement and the performance by such Issuer and the Guarantor of their respective
obligations under the Indentures, the Agreement and any applicable Terms Agreement, the
Securities, and the Guarantees will not, in the case of the U.S. Issuer, violate the U.S.
Issuer’s Certificate of Incorporation or By-laws, or violate any Federal law of the United
States, the law of the State of New York or, in the case of the U.S. Issuer, the General
Corporation Law of the State of Delaware, applicable to such Issuer or the Guarantor;
provided, however, that, with respect to this paragraph VI(a)(ix), such counsel need
express no opinion with respect to Federal or state securities laws, other anti-fraud laws,
fraudulent transfer laws and laws that
- 00 -
xxxxxxxx xxxxxxxxxxxx xxxxxxx Xxxxxx Xxxxxx persons and citizens or residents of
certain foreign countries or specifically designated nationals and organizations; provided,
further, that insofar as performance by each of the Issuers and the Guarantor of their
respective obligations under the Indentures, this Agreement, any applicable Terms
Agreement, the Securities, and the Guarantees is concerned, such counsel need express no
opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights;
(x) the applicable Issuer is not an “investment company” or a company “controlled” by
an “investment company” required to be registered under the United States Investment
Company Act of 1940.
In rendering such opinion, such counsel may state that their opinion is limited to the Federal
laws of the United States, the laws of the State of New York and the General Corporation Law of the
State of Delaware and such counsel may (i) note that, as to matters of English law, the Agents have
received the opinion of Xxxxxxxxx and May, English counsel for the Guarantor, rendered pursuant to
Section VI(b), the opinion of Xxxxxx Xxxxxx LLP, Scottish counsel to the Scottish Issuer rendered
pursuant to Section VI(c) and the opinion of De Brauw Blackstone Westbroek N.V., Dutch counsel to
the Dutch Issuer rendered pursuant to Section VI(d); (ii) assume that the Scottish Issuer has been
duly incorporated and is an existing company under the laws of Scotland; (iii) assume that the
Dutch Issuer has been duly incorporated and is an existing company under the laws of the
Netherlands; (iv) assume that the Guarantor has been duly incorporated and is an existing public
limited company under the laws of England and Wales; (v) each Security issued by the Scottish
Issuer or the Dutch Issuer will be duly executed and delivered in accordance with the laws of
Scotland or The Netherlands, as applicable; and (vi) assume that the Guarantees have been
authorized in accordance with the laws of England and Wales and the Guarantee corresponding to each
Security will be duly executed and delivered in accordance with the laws of England and Wales.
Such counsel may also state that, with your approval, they have relied as to certain matters
or information obtained from public officials, officers of the Issuers and the Guarantor and other
sources believed by them to be responsible, and that they have assumed that the Indentures have
been duly authorized, executed and delivered by the Trustee and that the signatures on all
documents examined by them are genuine, assumptions which they have not independently verified.
Such counsel shall also state that they have reviewed the Registration Statement, the Basic
Prospectus and the Prospectus Supplement and participated in discussions with representatives of
the applicable Issuer and the Guarantor and their English and, if applicable, Scottish and/or Dutch
law counsel, representatives of the accountants for the applicable Issuer and the Guarantor and
representatives of the Agents and their U.S. counsel; and on the basis of the information that they
gained in the course of the performance of such services, considered in the light of their
understanding of the applicable law and the experience they have gained through their practice in
this field,
- 20 -
such counsel shall confirm to the Agents that each part of the Registration Statement, when
such part became effective, and the Basic Prospectus, as supplemented by the Prospectus Supplement
as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive
in all material respects to the requirements of the Securities Act, the Trust Indenture Act of 1939
and the applicable rules and regulations of the Commission thereunder; and nothing that has come to
the attention of such counsel has caused them to believe (a) that any part of the Registration
Statement, when such part became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Basic Prospectus as supplemented by the Prospectus
Supplement as of the date of the Prospectus Supplement, contained any untrue statement of material
fact or omitted to state any material fact necessary in order to make the statements therein, in
the light of the circumstances in which they were made, not misleading or (b) that, in the course
of specified procedures performed by them subsequent to the effective date of the Registration
Statement, the Basic Prospectus, as supplemented by a Prospectus Supplement, as of the date of such
opinion contained any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. Such opinion may state (1) that such counsel do not assume any
responsibility for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, Basic Prospectus or the Prospectus Supplement except for those made under
the captions “Description of Debt Securities and Guarantees” and “Taxation—United States Taxation”
in the Basic Prospectus and “Description of Notes” and “Plan of Distribution” in the Prospectus
Supplement insofar as they relate to the provisions of documents therein described and (2) that
they do not express any opinion or belief as to the financial statements or other financial data or
as to any statement made by English counsel to the Guarantor with respect to English law, any
statement made by the Scottish counsel to the Scottish Issuer with respect to Scottish law or any
statement made by the Dutch counsel to the Dutch Issuer with respect to Dutch law, in each case,
contained in the Registration Statement, the Basic Prospectus or any Prospectus Supplement, or
documents incorporated by reference therein, or as to the statement of the eligibility and
qualification of the Trustee under the Indentures under which the Securities are being issued.
(b) Xxxxxxxxx and May, English counsel for the Guarantor, or other English counsel for the
Guarantor satisfactory to such Agent, shall have furnished to such Agent their written opinion,
dated the Commencement Date and each applicable date referred to in Section V(i)(B) hereof that is
on or prior to such Solicitation Time or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect that:
(i) the Guarantor is a public limited company duly incorporated under the laws of
England and Wales and is a validly existing company;
(ii) the execution and delivery of the Indentures, the Guarantees, this Agreement, the
Calculation Agency Agreement, the Exchange Rate Agency
- 21 -
Agreement, and any applicable Terms Agreement have been duly authorized by the
Guarantor and the Indentures, the Guarantees, this Agreement, and any applicable Terms
Agreement will have been duly executed and delivered by the Guarantor;
(iii) the choice of the laws of the State of New York as the governing law of each
Indenture, the Guarantees, this Agreement, the Calculation Agency Agreement, the Exchange
Rate Agency Agreement, and any applicable Terms Agreement is a valid choice of law; the
validity and binding nature of the obligations contained in each Indenture, the Guarantees,
this Agreement, the Calculation Agency Agreement, and any applicable Terms Agreement are
expressed to be governed by New York law;
(iv) on the assumption that the Indentures, the Guarantees, this Agreement, the
Calculation Agency Agreement, the Exchange Rate Agency Agreement, and any applicable Terms
Agreement create valid and binding obligations of the parties under New York law, English
law will not prevent any provisions of the Indentures, the Guarantees, this Agreement, the
Calculation Agency Agreement, or any applicable Terms Agreement from being valid and
binding obligations of the Guarantor;
(v) the execution and delivery by the Guarantor of, and the performance by the
Guarantor of its obligations under, the Indentures, the Guarantees, this Agreement, the
Calculation Agency Agreement, the Exchange Rate Agency Agreement, and any applicable Terms
Agreement will not contravene (i) any law of England and Wales in a manner which would
render such performance, insofar as it relates to the Guarantor’s payment obligations,
unlawful; or (ii) the Memorandum and Articles of Association of the Guarantor;
(vi) there are no required authorizations, approvals or consents of, or registration
or filing with, any court, governmental or regulatory authority of or with the United
Kingdom required in connection with the execution, delivery and performance of this
Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, any
applicable Terms Agreement, the Guarantees, and the Indentures by the Guarantor;
(vii) a final and conclusive judgment against the Guarantor for a definite sum of
money entered by any Federal or State court in the United States of America in any suit,
action or proceeding arising out of or in connection with either Indenture, the Guarantees,
this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, or
any applicable Terms Agreement would be enforced by the English courts, without
re-examination or re-litigation of the matters adjudicated upon, by the English courts,
provided that:
| (a) | the judgment was not obtained by fraud; | ||
| (b) | the enforcement of the judgment would not be contrary to English |
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| public policy; | |||
| (c) | the judgment was not obtained in proceedings contrary to natural justice; | ||
| (d) | the judgment is not inconsistent with an English judgment in respect of the same matter; | ||
| (e) | the judgment is not for multiple damages; and | ||
| (f) | enforcement proceedings are instituted within six years after the date of the judgment; |
(viii) assuming that the submission to the non-exclusive jurisdiction of any Federal
or State court in the Borough of Manhattan, The City of New York (the “New York Courts”)
contained in each Indenture, this Agreement, and any applicable Terms Agreement is valid
and binding under New York law, (a) English law will not prevent the same from being valid
and binding upon the Guarantor, (b) the Guarantor is not prevented by its Memorandum and
Articles of Association or any overriding principles of English law from agreeing to waive
any objection, pursuant to the Indentures, this Agreement, or any applicable Terms
Agreement to the venue of proceedings in the New York Courts and (c) such waiver is valid
and binding under the laws of England and Wales;
(ix) service of process effected in the manner set forth in Section XIII of this
Agreement and Section 115 of each Indenture, assuming its validity and effectiveness under
New York law, will be effective, insofar as the laws of England and Wales are concerned, to
confer valid jurisdiction over the Guarantor;
(x) the Guarantor has the power to submit, and has taken all necessary corporate
action to submit, to the jurisdiction of any New York Court, and to appoint Diageo North
America, Inc. as its authorized agent for the purposes and to the extent described in
Section XIII of this Agreement and in Section 115 of each Indenture; and
(xi) the statements in the “Enforceability of Certain Civil Liabilities”, “Description
of Debt Securities and Guarantees —Payment of Additional Amounts” and “Taxation—United
Kingdom Taxation” sections of the Prospectus, insofar as they are summaries of tax
considerations or refer to statements of law or legal conclusions, in all material respects
present fairly the information shown.
In giving such opinion, such counsel may state that such opinion is confined to and given on
the basis of English law as currently applied by the English courts and on the basis that it will
be governed by and construed and have effect in accordance with English law. Such opinion also may
state that nothing therein is to be taken as indicating that the remedy of an order for specific
performance or the issue of an injunction would be available in an English court in respect of the
obligations arising under either Indenture, the Guarantees, this Agreement, the Calculation Agency
Agreement, the Exchange Rate Agency Agreement, or any applicable Terms Agreement in that such
- 23 -
remedies are available only at the discretion of the court and are not usually granted where
damages would be an adequate remedy. Also in giving such opinion, such counsel may rely upon the
opinion or opinions of counsel named in paragraph (a) of this Section VI as to matters of New York
and United States federal law.
(c) If applicable, Xxxxxx Xxxxxx LLP, Scottish counsel for the Scottish Issuer and the
Guarantor, or other counsel for the Scottish Issuer and the Guarantor satisfactory to such Agent,
shall have furnished to such Agent their written opinion, dated the Commencement Date and each
applicable date referred to in Section V(i)(C) hereof that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent, to the
effect that:
(i) the Scottish Issuer is a public limited company, duly incorporated, validly
existing and registered under the laws of Scotland, and has the full corporate power and
authority to execute, deliver and perform its obligations under the Scottish Indenture, the
Securities, this Agreement, the Calculation Agency Agreement, the Exchange Rate Agency
Agreement, and any applicable Terms Agreement;
(ii) the Scottish Indenture, the Calculation Agency Agreement, and the Exchange Rate
Agency Agreement, have been duly authorized, executed and delivered by the Scottish Issuer
and, on the assumption that the Scottish Indenture and the Calculation Agency Agreement
create valid and binding obligations of the parties under New York law, Scottish law will
not prevent any provision of the Scottish Indenture, the Calculation Agency Agreement, or
the Exchange Rate Agency Agreement from being a valid and binding obligation of the
Scottish Issuer, subject to all limitations resulting from bankruptcy, insolvency,
liquidation, receivership, administration, reorganization of the Scottish Issuer and court
schemes, moratoria and similar laws of general application affecting the enforcement of
creditors’ rights applicable to the Scottish Issuer;
(iii) the Securities have been duly authorized, executed, authenticated and issued and
delivered by the Scottish Issuer and, on the assumption that the Securities create valid
and binding obligations of the parties thereto under New York law, Scottish law will not
prevent any provision of the Securities from being a valid and binding obligation of the
Scottish Issuer subject to all limitations resulting from bankruptcy, insolvency,
liquidation, receivership, administration and reorganization of the Scottish Issuer and
court schemes, moratoria and similar laws of general application affecting the enforcement
of creditors’ rights applicable to the Scottish Issuer;
(iv) this Agreement and any applicable Terms Agreement have been duly authorized,
executed, and delivered by the Scottish Issuer and, on the assumption that this Agreement
and any applicable Terms Agreement create valid and binding obligations of the parties
hereto under New York law, Scottish law will not prevent any provision of this Agreement or
any applicable Terms Agreement
- 24 -
from being a valid and binding obligation of the Scottish Issuer subject to all
limitations resulting from bankruptcy, insolvency, liquidation, receivership,
administration and reorganization of the Scottish Issuer and court schemes, moratoria and
similar laws of general application affecting the enforcement of creditors’ rights
applicable to the Scottish Issuer;
(v) the execution and delivery by the Scottish Issuer of, and the performance by the
Scottish Issuer of its obligations under, this Agreement, any applicable Terms Agreement,
the Securities, the Calculation Agency Agreement, the Exchange Rate Agency Agreement, and
the Indenture will not contravene any provision of Scottish law or the Memorandum and
Articles of Association of the Scottish Issuer or any agreement or other instrument binding
upon the Scottish Issuer or any of its subsidiaries that, in each case, is material to the
Scottish Issuer or any of its subsidiaries, taken as a whole, or any material judgment,
order or decree of any governmental body, agency or court having jurisdiction over the
Scottish Issuer or any such subsidiary;
(vi) there are no required authorizations, approvals or consents of, or registration
or filing with, any governmental or regulatory authority of or with the United Kingdom
required in connection with the execution, delivery and performance of the Securities by
the Scottish Issuer, or of this Agreement, any applicable Terms Agreement, the Scottish
Indenture, the Calculation Agency Agreement, and the Exchange Rate Agency Agreement by the
Scottish Issuer;
(vii) the choice of law of the State of New York to govern the Scottish Indenture, the
Calculation Agency Agreement, the Exchange Rate Agency Agreement, this Agreement, any
applicable Terms Agreement and the Securities is competent in terms of Scottish law and
will be recognized and given effect to by the courts in Scotland; the validity and binding
nature of the obligations contained in the Scottish Indenture, the Calculation Agency
Agreement, the Exchange Rate Agency Agreement, this Agreement, any applicable Terms
Agreement and the Securities are governed by New York law;
(viii) a judgment duly obtained in the courts of New York or Federal courts of the
United States of America sitting in New York in respect of the Scottish Indenture, the
Calculation Agency Agreement, the Exchange Rate Agency Agreement, this Agreement, any
applicable Terms Agreement or the Securities will be enforceable in Scotland, provided that
such judgment:
| (a) | is based on the exercise of personal jurisdiction by the court issuing the judgment; | ||
| (b) | is for a debt or an ascertained sum of money; | ||
| (c) | is final and conclusive; | ||
| (d) | is not inconsistent with a decree of a Scottish court in respect of the same matter; |
- 25 -
| (e) | is sought to be enforced by properly instituted and served proceedings within five years of the date of such judgment; and is not challengeable on the grounds of: |
| (1) | absence of jurisdiction; | ||
| (2) | fraud; | ||
| (3) | public policy; | ||
| (4) | natural justice; | ||
| (5) | being a fine or penalty; or | ||
| (6) | res judicata; |
(ix) the submission to the non-exclusive jurisdiction of any Federal or State court in
the Borough of Manhattan, The City of New York (the “New York Courts”) contained in this
Agreement, the Scottish Indenture, and any applicable Terms Agreement is valid under
Scottish law, and the Scottish Issuer is not prevented by its Memorandum and Articles of
Association or any overriding principles of Scottish law from agreeing to waive any
objection, pursuant to this Agreement, the Scottish Indenture, or any applicable Terms
Agreement to the venue of proceedings in the New York Courts, and such waiver is valid and
binding under the laws of Scotland;
(x) service of process effected in the manner set forth in Section XIII of this
Agreement and Section 115 of the Scottish Indenture, assuming its validity and
effectiveness under New York law, will be effective, insofar as the laws of Scotland are
concerned, to confer valid jurisdiction over the Scottish Issuer;
(xi) the Scottish Issuer has the power to submit, and has taken all necessary
corporate action to submit, to the jurisdiction of any New York Court, and to appoint
Diageo North America, Inc. as its authorized agent for the purposes and to the extent
described in Section XIII of this Agreement and in Section 115 of the Scottish Indenture;
and
In rendering such opinion, such counsel may state that they do not express any opinion
concerning any law other than the laws operative for the time being in Scotland and that their
opinion is based on the laws of Scotland in force on the date thereof and is addressed to the
Agents solely for their own benefit in relation to the offering of the Securities and, except with
their prior written consent, is not to be transmitted or disclosed to or used or relied upon by any
other person or used or relied upon by the Agents or other addresses thereof for any other purpose.
Such opinion may also state that nothing therein is to be taken as indicating that the remedy
of a decree of specific implement or the grant of the prayer of a petition for interdict would be
available in a Scottish court in respect of the obligations arising under the Scottish Indenture,
the Guarantee, this Agreement, or any applicable Terms Agreement in that such remedies are
available only at the discretion of the court and are
- 26 -
not usually granted where damages would be an adequate remedy. Also in giving such opinion,
such counsel may rely upon the opinion or opinions of counsel named in paragraph (a) of this
Section VI to matters of New York and United States federal law.
(d) If applicable, De Brauw Blackstone Westbroek N.V., Dutch counsel for the Dutch Issuer and
the Guarantor, or other counsel for the Dutch Issuer and the Guarantor satisfactory to such Agent,
shall have furnished to such Agent their written opinion, dated the Commencement Date and each
applicable date referred to in Section V(i)(D) hereof that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, in form and substance satisfactory to such Agent, to the
effect that:
(i) the Dutch Issuer has been incorporated and is existing as a private company with
limited liability (besloten vennootschap met beperkte aansprakelijkheid) under Netherlands
law;
(ii) the Dutch Issuer has the corporate power to enter into and perform the Dutch
Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement
and any applicable Terms Agreement and to issue and perform the Securities;
(iii) the Dutch Issuer has taken all necessary corporate action to authorize its entry
into, and performance of, the Dutch Indenture, this Agreement, the Calculation Agency
Agreement, the Exchange Agency Agreement, any applicable Terms Agreement and the
Securities;
(iv) the Dutch Issuer has validly signed the Dutch Indenture, this Agreement, the
Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement
and the Securities;
(v) the choice of New York law as the governing law of the Dutch Indenture, this
Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable
Terms Agreement and the Securities is recognized under Dutch law by the Dutch courts
(provided that the choice of New York law as the law of the Dutch Indenture, this
Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any applicable
Terms Agreement and the Securities is recognized under New York law as valid and binding),
and accordingly under Dutch law (a) New York law determines the validity and binding effect
of the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange
Agency Agreement, any applicable Terms Agreement and the Securities and (b) the Dutch
courts are legally bound to apply New York law to the Dutch Indenture, this Agreement, the
Calculation Agency Agreement, the Exchange Agency Agreement, any applicable Terms Agreement
and the Securities and to determine the validity and binding nature of the Dutch Indenture,
this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any
applicable Terms Agreement and the Securities by so applying New York law;
- 27 -
(vi) no governmental or regulatory consents, approvals or authorizations are required
by the Dutch Issuer under Netherlands law in connection with its entry into or performance
of the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange
Agency Agreement, any applicable Terms Agreement or for the issue and performance of the
Securities;
(vii) under Netherlands law, there are no registration, filing or similar formalities
required to ensure the validity, binding effect and enforceability of the Dutch Indenture,
this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement, any
applicable Terms Agreement and the Securities against the Dutch Issuer, except for the
purpose of complying with the Dutch Securities Act;
(viii) under Netherlands law, there exists no requirement as to the form of the Dutch
Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency Agreement,
any applicable Terms Agreement and the Securities if they satisfy the formal requirements
of New York law;
(ix) the entry into and performance of the Dutch Indenture, the Agreement, the
Calculation Agency Agreement, the Exchange Agency Agreement and any applicable Terms
Agreement, and the issue and performance of the Securities, by the Dutch Issuer does not
conflict with or result in a violation of the Articles of Association of the Dutch Issuer
or Netherlands law which would affect the validity, binding effect and enforceability of
the Dutch Indenture, this Agreement, the Calculation Agency Agreement, the Exchange Agency
Agreement, any applicable Terms Agreement and the Securities against the Dutch Issuer;
(x) under Netherlands law, the Agents are permitted to commence proceedings against
the Dutch Issuer in a Netherlands court of competent jurisdiction for claims arising under
this Agreement;
(xi) a judgment rendered by a court in the State of New York will not be recognized
and enforced by the Netherlands courts. However, if a person has obtained a final and
conclusive judgment for the payment of money rendered by a court in the State of New York
(the “foreign court”) which is enforceable in the United States of America (the “foreign
judgment”) and files his claim with the Netherlands court of competent jurisdiction, the
Netherlands court will generally give binding effect to the foreign judgment insofar as it
finds that the jurisdiction of the foreign court has been based on grounds which are
internationally acceptable and that proper legal procedures have been observed, unless the
foreign judgment contravenes Netherlands public policy; and
(xii) the statements in the Basic Prospectus under the heading “Taxation – Netherlands
Taxation”, to the extent that they are statements as to Netherlands law, are correct in all
material respects.
In giving such opinion, such counsel may state that such opinion is confined to
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and given on the basis of Dutch law as currently applied by the Dutch courts and on the basis
that it will be governed by and construed and have effect in accordance with Dutch law. Such
opinion also may state that nothing therein is to be taken as indicating that the remedy of an
order for specific performance or the issue of an injunction would be available in a Dutch court in
respect of the obligations arising under the Dutch Indenture, the Guarantee, this Agreement or any
applicable Terms Agreement in that such remedies are available only at the discretion of the court
and are not usually granted where damages would be an adequate remedy. Also in giving such
opinion, such counsel may rely upon the opinion or opinions of counsel named in paragraph (a) of
this Section VI as to matters of New York and United States federal law.
(e) Xxxxx Xxxx & Xxxxxxxx, counsel to the Agents, shall have furnished to such Agent (i) such
opinion or opinions, dated the Commencement Date, covering certain of the matters referred to in
subparagraph (ii), (iii), (iv), (v), (vi), and (vii) and the last paragraph of clause (a) of this
Section VI, and (ii) if and to the extent requested by such Agent, with respect to each applicable
date referred to in Section V(h) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, an opinion or opinions, dated such applicable date, to the effect
that such Agent may rely on the opinion or opinions which were last furnished to such Agent
pursuant to this Section VI(e) to the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last opinion or opinions shall be
deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to
such date) or, in any case, in lieu of such an opinion or opinions, an opinion or opinions of the
same tenor as the opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such date; and in each
case such counsel shall have received such papers and information as they may reasonably request to
enable them to pass upon such matters; in giving such opinion, such counsel may rely upon the
opinion or opinions of counsel named in paragraph (b) of this Section VI as to matters of English
law, of counsel named in paragraph (c) of this Section VI as to matters of Scottish law and of
counsel named in paragraph (d) of this Section VI as to matters of Dutch law.
(f) On the Commencement Date and on each applicable date referred to in Section V(j) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the case may be, the
independent auditors who have audited the financial statements of the Issuers and the Guarantor and
their subsidiaries included in the Registration Statement and the Prospectus shall have furnished
to such Agent a letter, dated the Commencement Date or such applicable date, as the case may be, in
form and substance reasonably satisfactory to such Agent, containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to agents or underwriters with
respect to the financial statements and certain financial information contained in the Registration
Statement and the Prospectus, both as amended or supplemented.
(g) There shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business or operations, of
the Guarantor and its subsidiaries, taken as a whole, from that set forth
- 29 -
in the Registration Statement and Prospectus, as amended or supplemented, that, in the
reasonable judgment of each applicable Agent, is material and adverse and that makes it, in the
reasonable judgment of such applicable Agent, after consultation with the applicable Issuer and the
Guarantor, impracticable to market the Securities on the terms and in the manner contemplated in
the Prospectus and Prospectus Supplement.
(h) There shall not have been any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the applicable Issuer’s or the
Guarantor’s securities by any “nationally recognized statistical rating organization” as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act.
(i) There shall not have occurred any of the following: (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of The New York Stock Exchange,
the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading
of any securities of any of the Issuers or the Guarantor shall have been suspended on any exchange
or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis that, in the reasonable judgment of the applicable Agent, is material and
adverse and, in the case of any of the events specified in clauses (i) through (iv), such event
singly or together with any other such event, makes it, in the reasonable judgment of such Agent,
after consultation with the Issuers and the Guarantor, impracticable to market the Securities on
the terms and in the manner contemplated in the Prospectus as amended or supplemented.
(j) The applicable Issuer or Issuers and the Guarantor shall have furnished or caused to be
furnished to such Agent certificates of officers of such Issuer and the Guarantor dated the
Commencement Date and each applicable date referred to in Section V(k) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in such form and executed by
such officers of such Issuer and the Guarantor as shall be reasonably satisfactory to such Agent,
as to the accuracy of the representations and warranties of such Issuer and the Guarantor herein at
and as of the Commencement Date or such applicable date, as the case may be, as to the performance
in all material respects by such Issuer and the Guarantor of all of their obligations hereunder to
be performed at or prior to the Commencement Date or such applicable date, as the case may be, as
to the matters set forth in subsection (g) and (h) of this Section VI, and as to such other matters
as such Agent may reasonably request.
(k) The applicable Prospectus Supplement shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by the rules and regulations
under the Securities Act and no stop order suspending the effectiveness of the Registration
Statement shall be in effect.
- 30 -
(l) With respect to the Securities issued by the Scottish Issuer, the Securities and the
Guarantees to be delivered shall have been approved for listing on The New York Stock Exchange,
Inc. or any other internationally recognized stock exchange that is recognized within the meaning
of Section 841 of the United Kingdom Income and Corporation Taxes Xxx 0000, as amended (or any
successor provision thereto).
VII.
Each Issuer and the Guarantor jointly and severally agree to indemnify and hold harmless each
Agent and each person, if any, who controls any Agent within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding on any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the applicable Issuer or the Guarantor shall have
furnished any amendments or supplements thereto) or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to the Agents furnished to an Issuer or the
Guarantor in writing by any Agent expressly for use therein; provided, however, the foregoing
indemnity with respect to any untrue statement or omission or alleged untrue statement or omission
made in a preliminary prospectus shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such loss, liability, claim, damage or
expense purchased any of the Securities that are the subject thereof if such person was not sent or
given a copy of the Prospectus (or the Prospectus as amended or supplemented) (if the applicable
Issuer or the Guarantor shall have furnished any amendments or supplements thereto to the Agents),
at or prior to the written confirmation of the sale of such Securities to such person and the
untrue statement or omission or alleged untrue statement or omission made in such preliminary
prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented).
Each Agent agrees, severally and not jointly, to indemnify and hold harmless each of the
Issuers and the Guarantor, their respective directors, their respective officers who sign the
Registration Statement and each person, if any, who controls each of the Issuers or the Guarantor
within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Issuers and the Guarantor to each Agent, but
only with reference to information relating to such Agent furnished to the Issuers or the Guarantor
in writing by such Agent expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto.
In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
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either of the two preceding paragraphs, such person (hereinafter called the “indemnified
party”) shall promptly notify the person against whom such indemnity may be sought (hereinafter
called the “indemnifying party”) in writing (or by facsimile and confirmed in writing) and the
indemnifying party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to the indemnified party or
(iii) the named parties to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties, and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by
Xxxxxx Xxxxxxx or, if Xxxxxx Xxxxxxx is not an indemnified party and is not reasonably likely to
become an indemnified party, by the Agents that are indemnified parties, in the case of parties
indemnified pursuant to the second preceding paragraph and by the applicable Issuer or Issuers and
the Guarantor in the case of parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there shall be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceedings.
If the indemnification provided for in the first or second paragraph of this Section VII is
unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to
- 32 -
the amount paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits
received by the applicable Issuer and the Guarantor, on the one hand, and such Agent, on the other
hand, from the offering of the Securities to which such loss, claim, damage, liability or action in
respect thereof relates or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the applicable Issuer and the
Guarantor, on the one hand, and of such Agent, on the other hand, in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the applicable Issuer and the
Guarantor, on the one hand, and such Agent, on the other hand, shall be deemed to be in the same
respective proportions as the net proceeds from such offering (before deducting expenses) received
by the applicable Issuer and the total discounts and commissions received by such Agent, in respect
thereof. The relative fault of the applicable Issuer and the Guarantor, on the one hand, and of
such Agent, on the other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such Issuer and the Guarantor, on the one hand,
or by such Agent, on the other hand, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The applicable Issuer, the Guarantor and each Agent agree that it would not be just and
equitable if contribution pursuant to this Section VII were determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or by any other method
or allocation that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section VII, no Agent shall be
required to contribute any amount in excess of the amount by which the total price at which the
Securities referred to in the preceding paragraph and purchased by it or through it were sold
exceeds the amount of any damages that such Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Agents’ respective obligations to contribute pursuant to this Section VII are several in
proportion to the respective principal amounts of Securities purchased by them or through them to
which such loss, claim, damage, liability or action in respect thereof relates, and not joint. The
remedies provided for in this Section VII are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in equity.
- 33 -
VIII.
Each Agent, in soliciting offers to purchase Securities from the Issuers and in performing the
other obligations of such Agent hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as agent for the
applicable Issuer or Issuers and the Guarantor and not as principal. Each Agent will make
reasonable efforts to assist each Issuer in obtaining performance by each purchaser whose offer to
purchase Securities from such Issuer was solicited by such Agent and has been accepted by such
Issuer, but such Agent shall not have any liability to such Issuer or the Guarantor in the event
such purchase is not consummated for any reason. If any of the Issuers shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, such Issuer and the
Guarantor shall (i) hold each Agent harmless against any loss, claim or damage arising from or as a
result of such default by such Issuer or the Guarantor and (ii) notwithstanding such default, pay
to the Agent that solicited such offer any commission to which it would be entitled in connection
with such sale.
IX.
The respective indemnities, agreements, representations, warranties and other statements of
the Agents, the Issuers and the Guarantor contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement or any applicable Terms
Agreement, (ii) any investigation made by or on behalf of any Agent or any person controlling any
Agent or by or on behalf of any of the Issuers, the Guarantor, their respective officers or
directors or any other person controlling the Issuers or the Guarantor and (iii) acceptance of and
payment for any of the Securities.
X.
The provisions of this Agreement authorizing the solicitation of offers to purchase Securities
from any of the Issuers may be suspended or terminated at any time by such Issuer and the Guarantor
as to any Agent or by any Agent upon the giving of written notice of such suspension or termination
to such Agent or such Issuer, as the case may be. In the event of such suspension or termination
with respect to any Agent, (x) this Agreement shall remain in full force and effect with respect to
any Agent as to which
- 34 -
such suspension or termination has not occurred, (y) this Agreement shall remain in full force
and effect with respect to the rights and obligations of any party which have previously accrued or
which relate to Securities which are already issued, agreed to be issued or the subject of a
pending offer at the time of such suspension or termination and (z) in any event, this Agreement
shall remain in full force and effect insofar as the fourth paragraph of Section II(a) with respect
to solicitations made prior to such suspension or termination, Section V(e), Section V(m), Section
VII, Section VIII and Section IX are concerned.
XI.
Except as otherwise specifically provided herein or in the Procedures, all statements,
requests, notices and advices hereunder shall be in writing, or by telephone if promptly confirmed
in writing, and if to Xxxxxx Xxxxxxx shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Manager, Credit Department (telefax: 212-703-4575) with a copy to 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Managing Director, Debt Syndicate (telefax: 212-764-7490); if to Xxxxxxx, Sachs &
Co., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Medium Term Note Department
(telefax: 212-816-5831); if to Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Fixed Income Syndicate/Medium Term Note Desk (telefax: 212-526-0943); if to Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 000 Xxxxx Xxxxxx, World Financial Tower (North Tower),
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Transaction Management Group; if to X.X. Xxxxxx
Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MTN Trading Desk (telefax:
212-834-6081); if to Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Medium-Term Note Department (telefax: 212-816-0949); and if to Diageo Capital
plc, Diageo Finance B.V., Diageo Investment Corporation or Diageo plc, 0 Xxxxxxxxx Xxxxx, Xxxxxx
X0X 0XX, Attention: Company Secretary (telefax: 011-44-20-7927-4637).
XII.
This Agreement and any Terms Agreement shall be binding upon, and inure solely to the benefit
of, the parties hereto or thereto, respectively, and to the extent provided in Section VII and
Section VIII hereof, the officers and directors of each of the Issuers and the Guarantor and any
person who controls any Agent or any of the Issuers or the Guarantor, and their respective personal
representatives, successors and assigns, and no other person shall acquire or have any right under
or by virtue of this Agreement or any Terms Agreement. No purchaser of any of the Securities
through or from any Agent hereunder shall be deemed a successor or assign by reason merely of such
purchase.
XIII.
Each of the Scottish Issuer, the Dutch Issuer and the Guarantor has appointed Diageo North
America, Inc. as its authorized agent (the “Authorized Agent”) upon which
- 35 -
process may be served in any action based on this Agreement that may be instituted in any
state or federal court in the City, County and State of New York by any Agent or by any person
controlling any Agent, and expressly accepts the jurisdiction of any such court in respect of such
action. Unless otherwise agreed by the Agents and their counsel, such appointment shall be
irrevocable for a period of three years from and after the completion of sale of all the Securities
unless and until a successor Authorized Agent shall be appointed and such successor shall accept
such appointment for the remainder of such three-year period. Each of the Scottish Issuer, the
Dutch Issuer and the Guarantor represents to each of the Agents that it has notified the Authorized
Agent of such designation and appointment and that Authorized Agent has accepted the same in
writing. The Scottish Issuer, the Dutch Issuer and the Guarantor will take any and all action,
including the filing of any and all documents and instruments, that may be necessary to continue
such appointment or appointments in full force and effect as aforesaid. Service of process upon
the Authorized Agent and written notice of such service to the Scottish Issuer, the Dutch issuer or
the Guarantor (mailed or delivered as aforesaid) shall be deemed, in every respect, effective
service of process upon the Scottish Issuer, the Dutch Issuer or the Guarantor (as the case may
be). Notwithstanding the foregoing, any action based on this Agreement may be instituted by any
Agent against the Scottish Issuer, the Dutch Issuer or the Guarantor in any competent court in
Scotland, the Netherlands or England and Wales (as the case may be).
XIV.
Time shall be of the essence in this Agreement and any Terms Agreement. As used herein, the
term “business day” shall mean any day when the office of the Commission in Washington, D.C. is
normally open for business and when banking institutions are not generally authorized or required
by law or regulation to close in London.
XV.
This Agreement shall be governed by and construed in accordance with the laws of the State of
New York.
XVI.
This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
- 36 -
If the foregoing is in accordance with your understanding, please sign and return to us ten
counterparts hereof, whereupon this letter and the acceptance by each of you thereof shall
constitute a binding agreement between each of the Issuers and the Guarantor and each of you in
accordance with its terms.
| Very truly yours, | ||||||
| DIAGEO CAPITAL PLC | ||||||
| By | ||||||
| Name | ||||||
| Title | ||||||
| DIAGEO FINANCE B.V. | ||||||
| By | ||||||
| Name | ||||||
| Title | ||||||
| By | ||||||
| Name | ||||||
| Title | ||||||
| DIAGEO INVESTMENT CORPORATION | ||||||
| By | ||||||
| Name | ||||||
| Title | ||||||
| DIAGEO PLC | ||||||
| By | ||||||
| Name | ||||||
| Title | ||||||
- 37 -
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
| XXXXXX XXXXXXX & CO. INCORPORATED | ||||
By |
||||
| Title: | ||||
| XXXXXXX, SACHS & CO. | ||||
By |
||||
| Name: | ||||
| Title: | ||||
| XXXXXX BROTHERS INC. | ||||
By |
||||
| Name: | ||||
| Title: | ||||
| XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||
By |
||||
| Name: | ||||
| Title: | ||||
-38-
| X.X. XXXXXX SECURITIES INC. | ||||
By |
||||
| Name: | ||||
| Title: | ||||
| CITIGROUP GLOBAL MARKETS INC. | ||||
By |
||||
| Name: | ||||
| Title: | ||||
-39-
Annex I
Up to U.S.[$2,000,000,000]
MEDIUM-TERM NOTES
MEDIUM-TERM NOTES
Guaranteed as to Payment of Principal,
Premium (if any) and Interest by
DIAGEO PLC
Premium (if any) and Interest by
DIAGEO PLC
TERMS AGREEMENT
Date: ___________
[Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx, 00xx Xxxxx
World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
Incorporated
Xxxxx Xxxxx, 00xx Xxxxx
World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
[Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000]
Ladies and Gentlemen:
[Diageo Capital plc] [Diageo Finance B.V.] [Diageo Investment
I-1
Corporation] (the “Issuer”) and Diageo plc (the “Guarantor”) propose, subject to the terms and
conditions stated herein and in the Amended and Restated Distribution Agreement, dated September
20, 2005 (the “Distribution Agreement”), among the Issuer, the Guarantor and the other issuer
thereunder on the one hand and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co., Xxxxxx
Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc. and
[Citigroup Global Markets Inc.] (the “Agents”) on the other, to issue and sell to [purchasers] the
securities specified in the Schedule hereto (the “Purchased Securities”). Each of the provisions
of the Distribution Agreement not specifically related to the solicitation by the Agents, as agents
of the Issuer and the Guarantor, of offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein, and each capitalized term herein
that is not defined herein and is defined in the Distribution Agreement shall have the meaning set
forth in the Distribution Agreement. Nothing contained herein or in the Distribution Agreement
shall make any party hereto an agent of the Issuer or the Guarantor or make such party subject to
the provisions therein relating to the solicitation of offers to purchase securities from the
Issuer, solely by virtue of its execution of this Terms Agreement. Each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty in Section I of the Distribution Agreement
which makes reference to the Prospectus shall be deemed to be a representation and warranty as of
the date of the Distribution Agreement in relation to the Prospectus (as therein defined), and also
a representation and warranty as of the date of this Terms Agreement in relation to the Prospectus
as amended and supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may
be, relating to the Purchased Securities, in the form heretofore delivered to you is now proposed
to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the provisions of the Distribution
Agreement incorporated herein by reference, the Issuer agrees to issue and sell to [purchasers],
and [each severally] agree[s] to purchase from the Issuer, the Purchased Securities, at the time
and place, in the principal amount and (notwithstanding the commission schedule set forth in the
Distribution Agreement) at the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, whereupon this letter, including those provisions of the Distribution
Agreement incorporated herein by reference, and the acceptance by [each of] you thereof shall
constitute a binding agreement between [each of] you and the Issuer and the Guarantor.
I-2
| [DIAGEO CAPITAL PLC] | ||||||
| [DIAGEO FINANCE B.V.] | ||||||
| [DIAGEO INVESTMENT CORPORATION] | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| [By: | ||||||
| Name: | ||||||
| Title:] | ||||||
| DIAGEO PLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
I-3
Accepted:
| [XXXXXX XXXXXXX & CO. INCORPORATED | ||||
By |
||||
| Name: | ||||
| Title:] | ||||
| [XXXXXXX, SACHS & CO. | ||||
By |
||||
| Name: | ||||
| Title:] | ||||
| [XXXXXX BROTHERS INC. | ||||
By |
||||
| Name: | ||||
| Title:] | ||||
| [XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||
By |
||||
| Name: | ||||
| Title:] | ||||
I-4
| [X.X. XXXXXX SECURITIES INC. | ||||
| By | ||||
| Name: | ||||
| Title:] | ||||
| [CITIGROUP GLOBAL MARKETS INC. | ||||
By |
||||
| Name: | ||||
| Title:] | ||||
I-5
Schedule to Annex I
Issuer of Purchased Securities:
Title of Purchased Securities:
[ %] Medium-Term Notes, Due [ ]
Aggregate Principal Amount:
[U.S. $ or units of other specified currency]
[Price to Public:]
Purchase Price by:
[Purchasers and Amounts for Each]
[ %] of the principal amount of the Purchased Securities [, plus accrued interest from
to ] [and accrued amortization if any, from to
]
Method of and Specified Funds for Payment of Purchase Price:
[By wire transfer to a bank account specified by the Issuer in immediately available funds]
Indenture:
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[If fixed: [ %] per annum]
[If floating, state formula]
Interest Payment Dates:
each [months and dates], commencing [date]
Interest Accrual Date:
I-6
Settlement:
[book entry] [certified form]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be delivered as a
condition to the closing:
[(1) The reliance letter or opinion or opinions of counsel to the Agents referred to
in Section V(h).]
[(2) The reliance letter or opinion of counsel to the Issuers and the Guarantor
referred to in Section V(i)(A).]
[(3) The reliance letter or opinion of counsel to the Guarantor referred to in Section
V(i)(B).]
[(4) The reliance letter or opinion of counsel to the Scottish Issuer and the
Guarantor referred to in Section V(i)(C).]
[(5) The reliance letter or opinion of counsel to the Dutch Issuer and the Guarantor
referred to in Section V(i)(D).]
[(6) The accountants’ letter referred to in Section V(j).]
[(7) The officers’ certificate or certificates referred to in Section V(k).]
Other Provisions (including Book-Entry Depositary and syndicate provisions, if applicable):
[If Diageo Finance B.V.: Appropriate Dutch selling restriction.]
I-7
Annex II
Administrative Procedures
These Procedures relate to the Securities defined in the Amended and Restated Distribution
Agreement, dated September 20, 2005 (the “Distribution Agreement”), among Diageo Capital plc (the
“Scottish Issuer”), Diageo Finance B.V. (the “Dutch Issuer”), Diageo Investment Corporation (the
“U.S. Issuer”) (each of the Scottish Issuer and the U.S. Issuer being referred to herein as an
“Issuer” and, together, the “Issuers”), Diageo plc (the “Guarantor”) and Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxxx, Sachs & Co., Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, X.X. Xxxxxx Securities Inc. and Citigroup Global Markets Inc. (together, the
“Agents”), to which these Procedures are attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given such terms in
the Distribution Agreement, in the Prospectus (as defined in the Distribution Agreement) as amended
or supplemented or in the Indentures (as defined in the Distribution Agreement).
The procedures to be followed with respect to the settlement of sales of Securities directly
by either of the Issuers to purchasers solicited by an Agent, as agent, are set forth below. The
terms and settlement details related to a purchase of Securities by an Agent, as principal, from
either of the Issuers will be set forth in a Terms Agreement pursuant to the Distribution
Agreement, unless such Issuer, the Guarantor and such Agent otherwise agree as provided in Section
II(b) of the Distribution Agreement, in which case the procedures to be followed in respect of the
settlement of such sale will be as set forth below. An Agent, in relation to a purchase of a
Security by a purchaser solicited by such Agent, is referred to herein as the “Selling Agent” and,
in relation to a purchase of a Security by such Agent as principal other than pursuant to a Terms
Agreement, as the “Purchasing Agent”.
Each of the Issuers will advise each Agent in writing of those persons with whom such Agent is
to communicate regarding offers to purchase Securities and the related settlement details.
Each Security will be represented by a global security in registered form (each a “Global
Security”) or by a certificate issued in definitive registered form (a “Certificated Security”).
Each Security will be authenticated by the Trustee, pursuant to the terms if the Indentures.
Thereafter,
| • | if the Security is a Global Security in registered form, it will be delivered to the Trustee, as agent for The Depository Trust Company (“DTC”), and recorded, in the book-entry system maintained by DTC (and as so recorded, is referred to herein as a “Book-Entry Security”); and | ||
| • | if the Security is a Certificated Security, it will be delivered to a person |
II-1
| designated by an Agent, as set forth in the applicable Pricing Supplement. |
An owner of a Book-Entry Security will not be entitled to receive a certificate representing
such a Security, except as provided in the Indentures.
Each Global Security of the Scottish Issuer or the Dutch Issuer shall be listed by the
Scottish Issuer or the Dutch Issuer, as applicable, on The New York Stock Exchange (the “NYSE”) or
any other internationally recognized stock exchange that is recognized within the meaning of
Section 841 of the United Kingdom Income and Corporation Taxes Xxx 0000, as amended (or any
successor provision thereto). The Scottish Issuer and the Dutch Issuer have executed and delivered
an application to list the Securities on the NYSE and such application has been approved by the
NYSE, subject to the condition that the Securities represented by each Global Security must meet
the NYSE’s listing requirements, including a minimum principal amount requirement, which, as of the
date of the Distribution Agreement is U.S.$5,000,000. The procedures for effecting the listing of
each Global Securities are described below.
Part I hereof contains procedures applicable to both Certificated Securities and Book-Entry
Securities. Certificated Securities will be issued in accordance with the further procedures set
forth in Part II hereof, and Book-Entry Securities will be issued in accordance with the further
procedures set forth in Part III hereof.
I. Procedures Generally Applicable
Posting Rates by Issuer:
Each of the Issuers and the Agents will discuss from time to time the rates of interest per
annum to be borne by and the maturity of Securities that may be sold as a result of the
solicitation of offers by an Agent. Each of the Issuers may establish a fixed set of interest
rates and maturities for an offering period (“posting”). If an Issuer decides to change already
posted rates, it will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by Issuer:
Subject to Section IV(b) of the Distribution Agreement, each Agent will promptly advise the
applicable Issuer by telephone or other appropriate means of all reasonable offers to purchase
Securities, other than those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also may make offers to
either of the Issuers to purchase Securities as a Purchasing Agent. Each Issuer will have the sole
right to accept offers to purchase Securities and may reject any such offer in whole or in part.
The applicable Issuer will promptly notify the Selling Agent or Purchasing Agent, as the case
may be, of its acceptance or rejection of an offer to purchase Securities. If such Issuer accepts
an offer to purchase Securities, it and the Guarantor will confirm such acceptance in writing to
the Selling Agent or Purchasing Agent, as the case may be, and
II-2
will promptly notify the Trustee and
(in the case of an acceptance by the Scottish Issuer that will result in the issuance of a Scottish
Book-Entry Security and in the case of an acceptance by the Dutch Issuer that will result in a
Dutch Book-Entry Security) the Book-Entry Depositary, with written confirmation following thereafter.
Communication of Sale Information to Issuer by Selling Agent:
After the acceptance of an offer by either of the Issuers and the Guarantor, the Selling Agent
or Purchasing Agent, as the case may be, will communicate the following details of the terms of
such offer (the “Sale Information”) to such Issuer by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means:
| (1) | Principal amount of Securities to be purchased; | ||
| (2) | If a Fixed Rate Security, the interest rate and the initial Interest Payment Date; | ||
| (3) | Maturity Date; | ||
| (4) | Specified Currency and, if the Specified Currency is other than U.S. dollars, the Exchange Rate Agent; | ||
| (5) | Index Currency, if applicable; | ||
| (6) | Issue Price; | ||
| (7) | Selling Agent’s commission or Purchasing Agent’s discount, as the case may be; | ||
| (8) | Net proceeds to the Issuer; | ||
| (9) | Settlement Date; | ||
| (10) | If a redeemable Security, such of the following as are applicable: |
| (i) | Redemption Commencement Date, | ||
| (ii) | Initial Redemption Price (% of par), | ||
| (iii) | Amount (% of par) that the Redemption Price shall decline (but not below par) on each anniversary of the Redemption Commencement Date, and | ||
| (iv) | Other applicable provisions; |
| (11) | If a Floating Rate Security, such of the following as are applicable: |
| (i) | Base Rate, |
II-3
| (ii) | Index Maturity, (iii) Spread or Spread Multiplier, (iv) Maximum Rate, | ||
| (iii) | Spread or Spread Multiplier, | ||
| (iv) | Maximum Rate, | ||
| (v) | Minimum Rate, | ||
| (vi) | Initial Interest Rate, | ||
| (vii) | Interest Reset Dates, | ||
| (viii) | Calculation Dates, | ||
| (ix) | Interest Determination Dates, | ||
| (x) | Interest Payment Dates, | ||
| (xi) | Regular Record Dates with respect to Securities issued by the U.S. Issuer, | ||
| (xii) | Calculation Agent, and | ||
| (xiii) | Reporting Service, Designated LIBOR Telerate Page, Designated CMT Telerate Page or Designated Telerate Maturity Index, if applicable; |
| (12) | If the amount of principal and/or interest payable on a Security will be determined by reference to an index or formula, a full description of such index or formula and all other applicable terms; | ||
| (13) | If an Original Issue Discount (“OID”) Security: |
| (i) | Total Amount of OID, | ||
| (ii) | Yield to Maturity, and | ||
| (iii) | Initial Accrual Period OID; |
| (14) | Name, address and taxpayer identification number of the registered owners, if applicable; | ||
| (15) | Denomination of certificates to be delivered at settlement; | ||
| (16) | Book-Entry Security or Certificated Security; and | ||
| (17) | Such other terms as are necessary to complete the applicable terms of the Security. |
II-4
Preparation of Pricing Supplement by Issuer:
If either of the Issuers accepts an offer to purchase a Security, it will prepare a Pricing
Supplement, substantially in the form attached hereto, along with a transmittal
letter, as Annex II-A (Annex II-A-1 in respect of Fixed Rate Securities and Annex II-A-2 in
respect of Floating Rate Securities). Such Issuer will supply at least one copy of such Pricing
Supplement to each applicable Selling Agent or Purchasing Agent, as the case may be, not later than
5:00 p.m., New York City time, on the business day following the date of acceptance of such offer,
or if such Issuer and the purchaser agree to settlement on the date of such acceptance, not later
than Noon, New York City time, on such date. Such Issuer will arrange to have ten Pricing
Supplements filed with the Commission in accordance with the applicable paragraph of Rule 424(b)
under the Securities Act.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will promptly deliver to the purchaser of a Security a written confirmation
of the sale and delivery and payment instructions. In addition, the Selling Agent will deliver to
such purchaser or its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Security prior to or together with the earlier of the delivery to
such purchaser or its agent of (a) the confirmation of sale or (b) the Security.
II. Procedures Applicable to Certificated Securities
Date of Settlement
All offers solicited by a Selling Agent or made by a Purchasing Agent and accepted by either
of the Issuers will be settled on a date (the “Settlement Date”) which is the third business day
after the date of acceptance of such offer (or the fourth business day thereafter, if on the date
of acceptance such acceptance is made after 4:30 p.m., New York City time), unless such Issuer and
the purchaser agree to settlement (a) on any other business day after the acceptance of such offer
or (b) with respect to an offer accepted by such Issuer prior to 10:00 a.m., New York City time, on
the date of such acceptance.
Instruction from Issuer to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing Agent, as the case
may be, the applicable Issuer will communicate such Sale Information (together with the name of the
Selling Agent or Purchasing Agent, as applicable) to the Trustee by telephone (confirmed in writing
by such Issuer and the Guarantor) or, in conjunction with the Guarantor, by facsimile transmission
or other acceptable written means.
Such Issuer and the Guarantor will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities no later than 2:15
p.m., New York City time, on the Settlement Date. Such instruction will be given by such Issuer
and the Guarantor prior to 3:00 p.m., New York City time,
II-5
on the business day prior to the Settlement Date unless the Settlement Date is the date of
acceptance by such Issuer of the offer to purchase Certificated Securities in which case such
instruction will be given by such Issuer by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of Payment
Therefor:
The Trustee will prepare each Certificated Security and appropriate receipts that will serve
as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited by an Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver the securities to
the Selling Agent for the benefit of the purchaser of such Certificated Securities against delivery
by the Selling Agent of a receipt therefor. On the Settlement Date the Selling Agent will deliver
payment for such Certificated Securities in immediately available funds to such Issuer in an amount
equal to the issue price of the Certificated Securities less the Selling Agent’s commission;
provided that the Selling Agent reserves the right to withhold payment for which it has not
received funds from the purchaser. Such Issuer shall not use any proceeds advanced by a Selling
Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the Trustee will, by
2:15 p.m., New York City time, on the Settlement Date, deliver the certificated Securities to the
Purchasing Agent against delivery of payment for such Certificated Securities in immediately
available funds to such Issuer in an amount equal to the issue price of the Certificated Securities
less the Purchasing Agent’s discount.
Failure of Purchaser to Pay Selling Agent
If a purchaser (other than a Purchasing Agent) fails to make payment to the Selling Agent for
a Certificated Security, the Selling Agent will promptly notify the Trustee and the applicable
Issuer thereof by telephone (confirmed in writing) or by facsimile transmission or other acceptable
written means. The Selling Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, such Issuer will return to
the Selling Agent an amount equal to the amount previously paid to such Issuer in respect of such
Certificated Security. If such failure shall have occurred for any reason other than default by the
Selling Agent to perform its obligations hereunder or under the Distribution Agreement, such Issuer
will reimburse the Selling Agent on an equitable basis for its loss of the use of funds during the
period when they were credited to the account of such Issuer, provided that the Selling Agent
promptly notifies such Issuer that such reimbursement is due and provided further that the Selling
Agent reimburses such Issuer for any amounts previously paid to the Selling Agent by such Issuer
for such loss of use of funds if the Selling Agent is also so reimbursed by such purchaser for such
loss of use of funds.
The Trustee will cancel the Certificated Security in respect of which the failure occurred,
make appropriate entries in its records and, unless otherwise instructed by such
II-6
Issuer, destroy the Certificated Security.
| III. | Procedures Applicable to Book-Entry Securities |
In connection with the qualification of the Book-Entry Securities for eligibility in the
book-entry system maintained by DTC, the Trustee will perform the custodial, document control and
administrative functions described below, in accordance with its respective obligations under a
Letter of Representations from the U.S. Issuer and the Trustee to DTC, dated as of March 26, 2002
(the “U.S. Letter of Representations”), a Letter of Representations from the Scottish Issuer and
the Trustee to DTC, dated as of March 26, 2002 (the “Scottish Letter of Representations”) and a
letter of Representations from the Dutch Issuer and the Trustee to
DTC, dated as of • , 2003
(the “Dutch Letter of Representations”), as well as under a Medium-Term Note Certificate Agreement
between the Trustee and DTC, dated as of October 31, 1988 (the “Certificate Agreement”), and the
Trustee’s obligations as a participant in DTC, including DTC’s Same-Day Funds Settlement System.
Settlement Procedures
After the acceptance of an offer by either of the Issuers and the Guarantor, the Selling Agent
or Purchasing Agent, as the case may be, will communicate promptly, but in no event later than 3:00
p.m. New York City time on the business day following the acceptance of an offer by the applicable
Issuer or 10:00 a.m. on the business day prior to the settlement date whichever is earlier, the
Sale Information to such Issuer by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means.
A. After receiving the Sale Information from the Selling Agent or Purchasing Agent, the
applicable Issuer and the Guarantor will communicate such Sale Information (together with the name
of the Selling Agent or Purchasing Agent, as applicable) to the Trustee by facsimile transmission
or other acceptable written means. The Trustee will assign a CUSIP number to the Global Security
from a list of CUSIP numbers previously delivered to the Trustee by such Issuer representing such
Book-Entry Security and then advise such Issuer and the Selling Agent or Purchasing Agent, as the
case may be, of such CUSIP number.
B. If applicable, the Scottish Issuer shall file with the Commission a registration statement
on Form 8-A, substantially in the form attached hereto, relating to the Securities represented by
such Global Security. The Scottish Issuer shall copy the applicable Agents on such application and
on all correspondence with the Commission relating to such registration statement. The parties
agree that there shall be no settlement with respect to such Global Security prior to such
registration statement becoming effective pursuant to the regulations of the Commission.
C. If applicable, the Dutch Issuer shall file with the Commission a registration statement on
Form 8-A, substantially in the form attached hereto, relating to the Securities represented by such
Global Security. The Dutch Issuer shall copy the
II-7
applicable Agents on such application and on all correspondence with the Commission relating
to such registration statement. The parties agree that there shall be no settlement with respect
to such Global Security prior to such registration statement becoming effective pursuant to the
regulations of the Commission.
In the case of a Global Security issued by the Scottish Issuer or the Dutch Issuer, the
Scottish Issuer or the Dutch Issuer, as applicable, shall send to the NYSE a copy of the Pricing
Supplement and the Form 8-A relating to the Securities represented by each Global Security in order
to effect the listing of such Securities on the NYSE. The relevant Issuer may also execute and
deliver an application to list the Securities represented by such Global Security on another
internationally recognized stock exchange that is recognized within the meaning of Section 841 of
the United Kingdom Income and Corporation Taxes Xxx 0000, as amended (or any successor provision
thereto). To be eligible for listing on The New York Stock Exchange, the Securities represented by
such Global Security must meet such exchange’s listing requirements, including a minimum principal
amount requirement, which, as of the date of the Distribution Agreement, is U.S.$5,000,000. The
Scottish Issuer or the Dutch Issuer, as applicable, shall copy the applicable Agents on such
application and on all correspondence with the relevant stock exchange relating to such
application, including the listing approval by such stock exchange. The parties agree that there
shall be no settlement with respect to such Global Security prior to the relevant stock exchange
approving such listing subject only to official notice of issuance.
D. The Trustee will enter a pending deposit message through DTC’s Participant Terminal System,
providing the following settlement information to DTC and DTC shall forward such information to
such Agent:
| (1) | The applicable Sale Information; | ||
| (2) | CUSIP number of the Global Security representing such Book-Entry Security; | ||
| (3) | Whether such Global Security will represent any other Book-Entry Security (to the extent known at such time); | ||
| (4) | Number of participant accounts maintained by DTC on behalf of the Selling Agent or Purchasing Agent, as the case may be; | ||
| (5) | The interest payment period; | ||
| (6) | Initial Interest Payment Date for such Book-Entry Security, the number of days by which such date succeeds the record date for DTC’s purposes (which, in the case of Floating Rate Securities which reset daily or weekly, shall be the date five calendar days immediately preceding the applicable Interest Payment Date and in the case of all other Book-Entry Securities shall be the Regular Record Date, as defined in the Security) and, if calculable at that time, the amount of interest payable on such Interest |
II-8
| Payment Date; and | |||
| (7) | Whether such Security is an amortizing Security (by an appropriate notation in the comments field of DTC’s Participant Terminal System). |
The Trustee shall additionally inform DTC as to whether the Book-Entry Security is being
submitted to DTC pursuant to the U.S. Letter of Representations (relating to Global Securities
issued by the U.S. Issuer), the Scottish Letter of Representations (relating to Global Securities
issued by the Scottish Issuer) or the Dutch Letter of Representations (relating to the Global
Securities issued by the Dutch Issuer)).
E. The Trustee will complete and authenticate the Global Security previously delivered by such
Issuer representing such Book-Entry Security.
F. DTC will credit such Book-Entry Security to the Trustee’s participant account at DTC.
G. The Trustee will enter a Same Day Funds Settlement System (“SDFS”) deliver order through
DTC’s Participant Terminal System instructing DTC to (i) debit such Book-Entry Security to the
Trustee’s participant account and credit such Book-Entry Security to such Agent’s participant
account and (ii) debit such Agent’s settlement account and credit the Trustee’s settlement account
for an amount equal to the price of such Book-Entry Security less such Agent’s commission. The
entry of such a deliver order shall constitute a representation and warranty by the Trustee to DTC
that (a) the Global Security representing such Book-Entry Security has been issued and
authenticated and (b) the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
H. Such Agent will enter an SDFS deliver order through DTC’s Participant Terminal System
instructing DTC (i) to debit such Book-Entry Security to such Agent’s participant account and
credit such Book-Entry Security to the participant accounts of the relevant participants with
respect to such Book-Entry Security and (ii) to debit the settlement accounts of such relevant
participants and credit the settlement account of such Agent for an amount equal to the price of
such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver orders described in Settlement
Procedures “F” and “G” will be settled in accordance with SDFS operating procedures in effect on
the settlement date.
J. Upon confirmation of receipt of funds, the Trustee will transfer to the account of such
Issuer maintained at the Trustee, New York, New York, or such other account as such Issuer may have
previously specified to the Trustee, funds available for immediate use in the amount transferred to
the Trustee in accordance with Settlement Procedure “F”.
K. Upon request, the Trustee will send to such Issuer a statement setting forth the principal
amount of Book-Entry Securities outstanding as of that date under the
II-9
Indentures.
L. Such Agent will confirm the purchase of such Book-Entry Security to the purchaser either by
transmitting to the relevant participants with respect to such Book-Entry Security a confirmation
order or orders through DTC’s institutional delivery system or by mailing a written confirmation to
such purchaser.
M. DTC will at any time, upon request of such Issuer or the Trustee, promptly furnish to the
Issuer or the Trustee a list of the names and addresses of the participants for whom DTC has
credited Book-Entry Securities.
Date of Settlement:
The receipt by the applicable Issuer of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security representing such
Book-Entry Security shall constitute “settlement” with respect to such Book-Entry Security. All
offers accepted by such Issuer will be settled on the third business day (or the fourth business
day if on the date of acceptance such acceptance is made after 4:30 p.m. New York City time)
pursuant to the timetable for settlement set forth below unless such Issuer and the purchaser agree
to settlement on another day which shall be no earlier than the next business day.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by an Agent, as agent, and accepted by the
applicable Issuer for settlement on the first business day after the sale date, Settlement
Procedures “A” through “I” set forth above shall be completed as soon as possible but not later
than the respective times (New York City time) set forth below:
| Settlement | ||||
| Procedure | Time | |||
A
|
12:00 noon | on the sale date | ||
B
|
2:00 p.m. | on the sale date | ||
C
|
2:00 p.m. | on the sale date | ||
D
|
9:00 a.m. | on settlement date | ||
E
|
10:00 a.m. | on settlement date | ||
F
|
2:00 p.m. | on settlement date | ||
G-H
|
4:45 p.m. | on settlement date | ||
I
|
5:00 p.m. | on settlement date |
If a sale is to be settled more than one business day after the sale date, Settlement
Procedures “A”, “B” and “C” shall be completed as soon as practicable but not later than
II-10
2:00 p.m. on the first business day after the sale date. If the initial interest rate for a
Floating Rate Book-Entry Security has not been determined at the time that the Selling Agent or
Purchasing Agent, as the case may be, communicates the Sale Information to the applicable Issuer,
Settlement Procedures “A”, “B” and “C” shall be completed as soon as such rate has been determined
but no later than 2:00 p.m. on the business day after the sale date. Settlement Procedure “H” is
subject to extension in accordance with any extension of fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Security is rescheduled or canceled, the Trustee, upon obtaining
knowledge thereof, will deliver to DTC, through DTC’s Participation Terminal System, a cancellation
message to such effect by no later than 2:00 p.m. New York City time on the business day
immediately preceding the scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a Book-Entry Security
pursuant to Settlement Procedure “F”, the Trustee may deliver to DTC, through DTC’s Participant
Terminal System, as soon as practicable a withdrawal message instructing DTC to debit such
Book-Entry Security to the Trustee’s participant account, provided that the Trustee’s participant
account contains a principal amount of the Global Security representing such Book-Entry Security
that is at least equal to the principal amount to be debited. If a withdrawal message is processed
with respect to all the Book-Entry Securities represented by a Global Security, the Trustee will
xxxx such Global Security “canceled”, make appropriate entries in the Trustee’s records and send
such canceled Global Security to the Company. The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately
reassigned. If a withdrawal message is processed with respect to one or more, but not all, of the
Book-Entry Securities represented by a Global Security, the Trustee will exchange such Global
Security for two Global Securities, one of which shall represent such Book-Entry Security or
Securities and shall be canceled immediately after issuance and the other of which shall represent
the remaining Book-Entry Securities previously represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the participants with
respect to such Book-Entry Security by the beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through DTC’s Participant Terminal
System debiting such Book-Entry Security to such participant’s account and crediting such
Book-Entry Security to such Agent’s account and then debiting such Book-Entry Security to such
Agent’s participant account and crediting such Book-Entry Security to the Trustee’s participant
account and shall notify the applicable Issuer and the Trustee thereof. Thereafter, the Trustee
will (i) immediately notify such Issuer of such order and such Issuer shall transfer to such Agent
funds available for immediate use in an amount equal to the price of such
II-11
Book-Entry Security which was credited to the account of such Issuer maintained at the Trustee
in accordance with Settlement Procedure “I”, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall have occurred for any
reason other than default by the applicable Agent to perform its obligations hereunder or under the
Distribution Agreement, such Issuer will reimburse such Agent on an equitable basis for the loss of
its use of funds during the period when the funds were credited to the account of such Issuer.
Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry
Security, DTC may take any actions in accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or more, but not all, of the Book-Entry
Securities to have been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure “D”, for the authentication and issuance of a Global Security
representing the other Book-Entry Securities to have been represented by such Global Security and
will make appropriate entries in its records.
The Issuers will, from time to time, furnish the Trustee with a sufficient quantity of
Securities.
II-12
| Pricing Supplement No. Dated | ||
| Rule424(b)[(2)] | ||
| (To Prospectus dated December 8, 2003 and | ||
| File No. 333-110804 | ||
| Prospectus Supplement dated September 20, 2005) | CUSIP: |
Diageo
[Capital plc/Finance B.V./-Investment Corporation]
Medium-Term Notes — Fixed Rate
Principal Amount:
|
Interest Rate: | |
Agents Discount or Commission:
|
Stated Maturity Date: | |
Nets Proceeds to Issuer:
|
Issue Date: |
Interest Payment Dates:
| Redemption: | ||
o
|
The Notes cannot be redeemed prior to the Stated Maturity Date, | |
o
|
The Notes may be redeemed prior to the Stated Maturity Date. | |
| Redemption Commencement Date: | ||
| Initial Redemption Percentage: | ||
| Annual Redemption Percentage Reduction: % until Redemption Percentage is 100% of the principal amount. | ||
| Optional Repayment: | ||
o
|
The Notes cannot be repaid prior to the Stated Maturity Date | |
o
|
The Notes can be repaid prior to the Stated Maturity Date at the option of the holder of the Notes. | |
| Option Repayment Dates: | ||
| Repayment Price: % | ||
| Currency: | ||
| Specified Currency: Exchange Rate Agent: Citibank, N.A. | ||
| Minimum Denominations: | ||
| Original Issue Discount: o Yes o No | ||
| Total Amount of OID: Yield to Maturity: | ||
| Initial Accrual Period: | ||
Form:
|
þ Book-Entry o Certificated | |
Agent:
|
o [Xxxxxx Xxxxxxx & Co. Incorporated] | |
| o Other | ||
| Agent acting in the capacity as indicated below: | ||
| o Agent o Principal | ||
| If as principal: | ||
| o The Notes are being offered at varying prices related to prevailing market prices at the time of resale. | ||
| o The Notes are being offered at a fixed initial public offering price of % of principal amount. | ||
| If as Agent: | ||
| The Notes are being offered at a fixed initial public offering price of % of Principal Amount. | ||
| Trustee: Citibank, N.A. | ||
| Other Provisions: [If Diageo Finance B.V.: Appropriate Dutch selling restriction.] | ||
| Terms not defined above have the meanings given to such terms in the Prospectus Supplement, dated December 8, 2003. | ||
II-13
Pricing Supplement No. Dated |
||
Rule424(b)[(2)] |
||
(To Prospectus dated December 8, 2003 and |
||
File No. 333-110804 |
||
Prospectus Supplement dated September 20, 2005)
|
CUSIP: |
Diageo
[Capital plc/Finance B.V./-Investment Corporation]
Medium-Term Notes — Floating Rate
Principal Amount:
|
Initial Interest Rate: | |
Agent’s Discount or Commission:
|
Original Issue Date: | |
Net Proceeds to Issuer:
|
Stated Maturity Date: |
Calculation Agent: Citibank, N.A. Calculation Dates:
| Interest Rate Basis: | ||||||||||||||||
| o | CD Rate | o | EURIBOR | o | Prime Rate | |||||||||||
| o | CMT Rate | o | Federal Funds Rate | o | Treasury Rate | |||||||||||
| o | Commercial Paper Rate | o | LIBOR | o | Other (see attached) | |||||||||||
If LIBOR, Designated LIBOR Page:
|
oLIBOR Reuters, Reuters Page: | |
| oLIBOR Moneyline Telerate, Moneyline Telerate Page: |
If CMT Rate, Designated CMT Maturity Index:
Designated CMT Moneyline Telerate Page:
Designated CMT Moneyline Telerate Page:
Interest Reset Dates:
|
Spread (+/-) | |||
Interest Reset Period:
|
Spread Multiplier: | |||
Interest Payment Dates:
|
Maximum Interest Rate: | |||
Index Maturity:
|
Minimum Interest Rate: | |||
| Index Currency: | Interest Determination Dates: | |||
| Redemption: | ||||
| o | The Notes cannot be redeemed prior to the Stated Maturity Date. | |||
| o | The Notes may be redeemed prior to Stated Maturity Date. | |||
| Redemption Commencement Date: | ||||
| Initial Redemption Percentage: %
Annual Redemption Percentage Reduction: % until Redemption Percentage is 100% of the Principal Amount. |
||||
| Repayment: | ||||
| o | The Notes cannot be repaid prior to the Stated Maturity Date. | |||
| o | The Notes can be repaid prior to the Stated Maturity Date at the option of the holder of the Notes. | |||
| Optional Repayment Date(s): | ||||
| Repayment Price: % | ||||
| Currency: | ||
| Specified Currency: Exchange Rate Agent: Citibank, N.A. | ||
| Minimum Denominations: | ||
| Original Issue Discount: o Yes o No | ||
| Total Amount of OID: Yield to Maturity: | ||
| Initial Accrual Period: | ||
Form:
|
þ Book-Entry o Certificated | |
Agent:
|
o [Xxxxxx Xxxxxxx & Co. Incorporated] | |
| o Other |
II-14
| Agent acting in the capacity as indicated below: | ||||
| o Agent o Principal | ||||
| If as principal: | ||||
| o | The Notes are being offered at varying prices related to prevailing market prices at the time of resale. | |||
| o | The Notes are being offered at a fixed initial public offering price of % of principal amount. | |||
| If as Agent: | ||||
| The Notes are being offered at a fixed initial public offering price of % of principal amount. | ||||
| Trustee: Citibank, N.A. | ||||
| Other Provisions: [If Diageo Finance B.V.: Appropriate Dutch selling restriction.] | ||||
Terms not defined above have the meanings given to such terms in the Prospectus Supplement, dated December 8, 2003.
II-15
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
[Diageo Capital plc/Diageo Finance B.V.]
(Exact name of Registrant as Specified in Its Charter)
| [Scotland/The Netherlands] | None | |
| (State of Incorporation or Organization) | (I.R.S. Employer | |
| Identification No.) | ||
| [Edinburgh Park, 0 Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx] | [XX00 0XX] | |
| [Molenwerf 00-00, Xxxxxxxxx, Xxx Xxxxxxxxxxx] | [1014 BG] | |
| (Address of Principal Executive Office) | (Zip Code) |
If this form relates to the registration of a
class of securities
pursuant to Section 12(b) of the Exchange
Act and is effective pursuant to General
Instruction A.(c), check the following box.
þ
If this form relates to the registration of a class of
securities pursuant to Section 12(g) of the Exchange Act
and is effective pursuant to General Instruction A.(d),
check the following box. o
Securities Act registration statement file number to which this form relates:
No. 333-110804 (If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
| Title of each class | Name of each exchange on which | |||
| to be so registered | each class is to be registered | |||
| [•% Medium-Term Notes due •] | The New York Stock Exchange | |||
Securities to be registered pursuant to Section 12(g) of the Act:
None
II-16
INFORMATION REQUIRED IN REGISTRATION STATEMENT
The Registrant has filed with the Securities and Exchange Commission (the “Commission”)
pursuant to Rule 424(b) under the Securities Act of 1933 (“Rule 424(b)”) a pricing supplement dated
[•] (the “Pricing Supplement”) and a prospectus supplement dated September 20, 2005 (the
“Prospectus Supplement”) to a prospectus dated December 8, 2003 (the “Prospectus”), relating to the
Securities to be registered hereunder included in the Registrant’s Registration Statement on Form
F-3 (File No. 333-110804), as amended, declared effective by the Commission on December 8, 2003.
The Registrant incorporates by reference the Prospectus, the Prospectus Supplement and the Pricing
Supplement to the extent set forth below.
Item 1. Description of Registrant’s Securities to be Registered.
Reference is made to the information set forth in the Pricing Supplement and under the
headings “Description of Notes” in the Prospectus Supplement and “Description of Debt Securities
and Guarantees” and “Taxation” in the Prospectus, which information is incorporated herein by
reference.
Item 2. Exhibits.
Pursuant to the Instructions as to Exhibits with respect to Form 8-A, the following exhibits
are being filed with the Commission in connection with this Registration Statement:
| (A) | Prospectus, Prospectus Supplement and Pricing Supplement (incorporated herein to the extent provided above by reference to the Registrant’s above-referenced filings with the Securities and Exchange Commission). |
| (B) 1.1 | [Indenture, among the Registrant, Diageo plc, as Guarantor (the “Guarantor”), and Citibank, N.A., as Trustee, dated as of August 3, 1998 (the “Indenture”) (incorporated by reference to Exhibit 4.1 filed in the Registrant’s Registration Statement No. 333-8874)] [Indenture, among the Registrant, Diageo plc, as Guarantor (the “Guarantor”) and Citibank, N.A., as Trustee, dated as of December 8, 2003 (the “Indenture”) (incorporated by reference to •]. |
| 1.2 | Form of Global Security and Guarantees relating thereto (included in Exhibit 1.1 hereof). | ||
| 1.3 | Officer’s Certificate of the Registrant and the Guarantor pursuant to Section 301 of the Indenture setting forth the terms of the Securities. |
II-17
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
| [Diageo Capital plc] [Diageo Finance B.V.] | ||||
| (Registrant) | ||||
Date:
|
By: | |||
| Name: | ||||
| Title: | ||||
[Date:
|
By: | |||
| Name: | ||||
| Title:] | ||||
II-18
EXHIBIT INDEX
| Exhibit No. | Description of Exhibit | |
1.1
|
[Indenture, among the Registrant, Diageo plc, as Guarantor (the “Guarantor”), and Citibank, N.A., as Trustee, dated as of August 3, 1998 (the “Indenture”) (incorporated by reference to Exhibit 4.1 filed in Registrant’s Registration Statement No. 333-8874)] [Indenture, among the Registrant, Diageo plc, as Guarantor (the “Guarantor”) and Citibank, N.A., as Trustee, dated as of December 8, 2003 (the “Indenture”) (incorporated by reference to Ÿ )]. | |
1.2
|
Form of Global Security and Guarantees relating thereto (included in Exhibit 1.1 hereof). | |
1.3
|
Officer’s Certificate of the Registrant and the Guarantor pursuant to Section 301 of the Indenture setting forth the terms of the Securities. |
II-19
Annex III
Form of Dealer Accession Agreement
[Date]
[Name of Dealer]
[Address]
[Address]
Re: Diageo Capital plc, Diageo Finance B.V. and Diageo Investment Corporation – Medium-Term Notes
Program
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Distribution Agreement, dated September
20, 2005 (the “Distribution Agreement”), among Diageo Capital plc (“Diageo Capital”), Diageo
Finance B.V. (“Diageo Finance”) and Diageo Investment Corporation (“Diageo Investment”, and
together with Diageo Capital and Diageo Finance, the “Issuers”), Diageo plc (the “Guarantor”), on
the one hand, and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co., Xxxxxx Brothers Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc. and Citigroup
Global Markets Inc. (the “Agents”), on the other, in connection with the issue and sale of the
Issuers’ Medium-Term Notes Due 18 Months to 30 Years from Date of Issue (the “Securities”)
guaranteed as to payment of principal, premium (if any) and interest by the Guarantor. A copy of
the Distribution Agreement has been previously delivered to you and, to the extent applicable, the
provisions thereof are incorporated by reference herein and deemed to be part of this Agreement to
the same extent as if such provisions had been set forth in full herein.
Also, copies of the following additional documents have been delivered to you:
(1) the [U.S.] [Dutch] [Scottish] Indenture, as amended or supplemented as of the date
hereof;
(2) the Prospectus as amended or supplemented as of the date hereof, in such numbers
of copies as you have reasonably requested; and
(3) a copy of each of the most recently delivered documents referred to in Section VI
of the Distribution Agreement.
In accordance with Section II of the Distribution Agreement we hereby confirm that, with
effect from the date hereof, you shall become a party to the Distribution Agreement and shall be
entitled to all the rights and the benefits of the Distribution Agreement (including the benefits
of any Term Agreement attached thereto) to the same
III-1
extent and on the same terms as if you were originally appointed as an Agent pursuant to the
Distribution Agreement. You agree that, with effect from the date hereof, you shall be subject to
all the obligations of an Agent under the Distribution Agreement.
Terms used but not defined herein shall have the meaning assigned to them in the Distribution
Agreement.
This Agreement is governed by, and shall be construed in accordance with, New York law.
Please confirm your acceptance of the foregoing by signing this letter and returning it to us,
whereupon this letter, including those provisions of the Distribution Agreement incorporated by
reference herein, shall constitute a binding agreement between you and [Diageo Investment], [Diageo
Finance], [Diageo Capital] and the Guarantor.
| [DIAGEO INVESTMENT | ||||
| CORPORATION] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [DIAGEO FINANCE B.V.] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [DIAGEO CAPITAL PLC] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| [DIAGEO PLC] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
III-2
Agreed as of the date first above written:
[Dealer]
By: |
||||
| cc: [Trustee] | ||||
III-3
Annex IV
Form of One-Time Appointment Agreement
[Date]
[Name of Dealer]
[Address]
[Address]
Re: [Diageo Investment Corporation] [Diageo Finance B.V.] [Diageo Capital plc] —Ÿ
Medium-Term Notes due Ÿ(the “Notes”)
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Distribution Agreement, dated September
20, 2005 (the “Distribution Agreement”), among Diageo Capital plc (“Diageo Capital”), Diageo
Finance B.V. (“Diageo Finance”) and Diageo Investment Corporation (“Diageo Investment”, and
together with Diageo Capital and Diageo Finance, the “Issuers”), Diageo plc (the “Guarantor”), on
the one hand, and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co., Xxxxxx Brothers Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc. and Citigroup
Global Markets Inc. (the “Appointed Agents”), on the other, in connection with the issue and sale
of the Issuers’ Medium-Term Notes Due 18 Months to 30 Years from Date of Issue (the “Securities”)
guaranteed as to payment of principal, premium (if any) and interest by the Guarantor. For
purposes of this Agreement, the Securities include the Notes. A copy of the Distribution Agreement
has been previously delivered to you and, to the extent applicable, the provisions thereof are
incorporated by reference herein and deemed to be part of this Agreement to the same extent as if
such provisions had been set forth in full herein.
Also, copies of the following additional documents have been delivered to you:
(1) the [U.S.] [Dutch] [Scottish] Indenture, as amended or supplemented as of the date
hereof;
(2) the Prospectus as amended or supplemented as of the date hereof, in such numbers
of copies as you have reasonably requested; and
(3) a copy of each of the most recently delivered documents referred to in Section VI
of the Distribution Agreement.
IV-1
In accordance with Section II of the Distribution Agreement we hereby confirm that, solely for
the purpose of offering and selling the Notes, you are hereby entitled to all the rights and the
benefits of the Distribution Agreement (including the benefits of any Term Agreement attached
thereto) to the same extent and on the same terms as if you were an Appointed Agent pursuant to the
Distribution Agreement. You agree that you shall be subject to all the obligations that an
Appointed Agent would have under the Distribution Agreement for purposes of the offer and sale of
the Notes.
Terms used but not defined herein shall have the meaning assigned to them in the Distribution
Agreement.
This Agreement is governed by, and shall be construed in accordance with, New York law.
Please confirm your acceptance of the foregoing by signing this letter and returning it to us,
whereupon this letter, including those provisions of the Distribution Agreement incorporated by
reference herein, shall constitute a binding agreement between you and [Diageo Investment] [Diageo
Finance] [Diageo Capital] and the Guarantor.
| [DIAGEO INVESTMENT CORPORATION] | ||||||
| [DIAGEO FINANCE B.V.] | ||||||
| [DIAGEO CAPITAL PLC] | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| [By: | ||||||
| Name: | ||||||
| Title: ] | ||||||
| [DIAGEO PLC] | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
IV-2
| Agreed as of the date first above written: | ||||
| [Dealer] | ||||
By: |
||||
cc:
|
[Trustee] | |||
IV-3
