UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 205491
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
Pursuant to Rule 13a-16 or 15d-16
under the Securities Exchange Act of 1934
February 20, 2024
Commission File Number: 001-38159
BRITISH AMERICAN TOBACCO P.L.C.
(Translation of registrant’s name into English)
Globe House
4 Temple Place
London WC2R 2PG
United Kingdom
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
The information contained in this Form 6-K is incorporated by reference into the Form F-3 Registration Statement File Nos. 333-265958, 333-265958-01, 333-265958-02, 333-265958-03, 333-265958-04 and 333-265958-05 of British American Tobacco p.l.c. (the “Registrant”), British American Tobacco Holdings (The Netherlands) B.V., Reynolds American Inc., B.A.T. Netherlands Finance B.V., B.A.T. International Finance p.l.c. and B.A.T Capital Corporation, and related Prospectuses and Prospectus Supplements, as such Registration Statement, Prospectus and Prospectus Supplements may be amended from time to time.
EXHIBIT INDEX
| | | | | | | | |
| Exhibit | | Description |
| Exhibit 1.1 | | |
| Exhibit 4.1 | | |
| Exhibit 4.2 | | |
| Exhibit 5.1 | | |
| Exhibit 5.2 | | |
| Exhibit 5.3 | | |
| Exhibit 5.4 | | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| | | | | |
| British American Tobacco p.l.c. |
| By: | /s/ Tadeu Marroco |
| Name: Tadeu Marroco |
| Title: Chief Executive |
Date: February 20, 2024
UNDERWRITING AGREEMENT
B.A.T CAPITAL CORPORATION
$850,000,000 5.834% Notes due 2031
$850,000,000 6.000% Notes due 2034
Fully and Unconditionally Guaranteed on a Senior Unsecured Basis
by
BRITISH AMERICAN TOBACCO P.L.C.
and
B.A.T. INTERNATIONAL FINANCE P.L.C.
and
B.A.T. NETHERLANDS FINANCE B.V.
and
REYNOLDS AMERICAN INC.
February 15, 2024
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
United States
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
United States
Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020
United States
Santander US Capital Markets LLC
437 Madison Avenue
New York, New York 10022
United States
Wells Fargo Securities, LLC
550 South Tyron Street, 5th Floor
Charlotte, North Carolina 28202
United States
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
Ladies and Gentlemen:
B.A.T Capital Corporation, a Delaware corporation (the “Issuer”), proposes to issue and sell to the several underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the “Representatives”), $850,000,000 5.834% Notes due 2031 (the “2031 Notes”) and $850,000,000 6.000% Notes due 2034 (the “2034 Notes” and, together with the 2031 Notes, the “Notes”), in the respective amounts set forth in Schedule 1 hereto. The Notes will be entitled to the benefit of full and unconditional guarantees (the “Guarantees”), on a senior unsecured and joint and several basis, of the payment of all amounts owing with respect to the Notes by the Issuer, by British American Tobacco p.l.c., a public limited company incorporated under the laws of England and Wales (the “Parent”), B.A.T. International Finance p.l.c., a public limited company incorporated under the laws of England and Wales (“BATIF”), B.A.T. Netherlands Finance B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands (“BATNF”) and, unless its guarantee is released in accordance with the Indenture referred to below, Reynolds American Inc., a North Carolina corporation (“RAI”), each as a guarantor (together, the “Guarantors”).
The Notes will be issued pursuant to the indenture dated as of September 6, 2019 (the “Base Indenture”), among the Issuer, the Guarantors and Citibank, N.A., as trustee (the “Trustee”), and Citibank, N.A., as authentication agent, transfer agent, registrar, calculation agent and initial paying agent. Certain terms of the Notes will be established pursuant to supplemental indentures (the “Supplemental Indentures”; the Supplemental Indentures together with the Base Indenture, the “Indenture”) to the Base Indenture or an officer’s certificate.
The Issuer and each Guarantor hereby confirms its agreement with the several Underwriters concerning the purchase and resale of the Notes, as follows:
1. Registration Statement. The Issuer meets the requirements for use of Form F-3 under the Securities Act of 1933, as amended (the “Securities Act”) and has prepared and filed with the Securities and Exchange Commission (the “Commission”) an “automatic shelf registration statement” (as defined under Rule 405 under the Securities Act), on Form F-3 (File No. 333-265958) in respect of the Issuer’s debt securities and guarantees thereof. Such registration statement, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (together, “Rule 430 Information”), is referred to herein as the “Registration Statement”. As used herein, the term “Base Prospectus” means the prospectus included in such Registration Statement (and any amendments thereto) at the time of its effectiveness that omits Rule 430 Information. The term “Preliminary Prospectus” means the Base Prospectus and any preliminary prospectus supplement specifically relating to the Notes and the offering thereof used prior to filing of the Prospectus (as defined below). The term “Prospectus” means the Base Prospectus and the final prospectus supplement that amends or supplements the Base Prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Notes. Any reference in this underwriting agreement (this “Agreement”) to the Registration Statement, any Preliminary Prospectus 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, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, any reference to “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the Commission thereunder that are deemed to be incorporated by reference therein, and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Parent filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement and any filings by the Parent on Form 6-K the Parent deems incorporated by reference into the Registration Statement. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Notes were first made (the “Time of Sale”), the Issuer prepared the following information (collectively, the “Time of Sale Information”): a
Preliminary Prospectus and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
2. Purchase and Sale of the Notes. (a) The Issuer agrees to issue and sell the Notes to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Issuer the respective principal amount of Notes set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 99.650% of the principal amount of the 2031 Notes and 99.037% of the principal amount of the 2034 Notes, in each case plus accrued interest, if any, from February 20, 2024 to, but excluding, the Closing Date (as defined below).
(b) The Issuer acknowledges and agrees that the Underwriters may offer and sell Notes to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Notes purchased by it to or through any Underwriter.
(c) The Issuer understands that the Underwriters intend to make a public offering of the Notes as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Notes on the terms set forth in the Time of Sale Information.
(d) The Issuer and each Guarantor acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Issuer and each Guarantor with respect to the offering of the Notes contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Issuer, any Guarantor or any other person. Additionally, neither the Representatives nor any other Underwriter are advising the Issuer, any Guarantor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and each Guarantor shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Underwriter shall have any responsibility or liability to the Issuer or any Guarantor with respect thereto. Any review by the Representatives or any Underwriter of the Issuer, any Guarantor, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Issuer, any Guarantor or any other person. The Issuer agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Issuer, in connection with such transactions or the process leading thereto.
3. Payment and Delivery. (a) Payment for and delivery of the Notes will be made at the offices of Davis Polk & Wardwell London LLP, 5 Aldermanbury Square, London EC2V 7HR, at 9:00 A.M., New York City time, on February 20, 2024, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives
and the Issuer may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date”.
(b) The Notes will be represented by one or more global notes (collectively, the “Global Notes”) in book-entry form. Payment for the Notes shall be made by wire transfer in immediately available funds to the account(s) specified by the Issuer to the Representatives against delivery of the Global Notes to the nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, with any transfer taxes payable in connection with the initial sale of the Notes duly paid by the Issuer. The Global Notes will be made available for inspection by the Representatives not later than 5:00 P.M., New York City time, on the business day prior to the Closing Date.
4. Representations and Warranties of the Issuer and the Guarantors. The Issuer and each Guarantor jointly and severally represents and warrants to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer or the Guarantors in writing by or on behalf of such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale, did not, and at the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer or the Guarantors in writing by or on behalf of such Underwriter through the Representatives expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(c) Issuer Free Writing Prospectus. Neither the Issuer nor any Guarantor (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to, nor will it prepare, make, use, authorize, approve or refer to, any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Issuer, the
Guarantors or their respective agents and representatives (other than a communication referred to in any of clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, including the pricing term sheet substantially in the form of Annex B hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus filed prior to the first use of such Issuer Free Writing Prospectus, at the Time of Sale, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and the information contained in each written communication under clause (v) does not conflict with the information either in the Time of Sale Information or the Prospectus; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer or the Guarantors in writing by or on behalf of such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuer. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Issuer or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939 (the “Trust Indenture Act”), as amended, and the rules and regulations of the Commission thereunder, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the
Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer or the Guarantors in writing by or on behalf of such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(e) Incorporated Documents. The documents incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) Financial Statements. The consolidated financial statements and the related notes thereto of the Parent included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus comply with applicable requirements of the Securities Act, the Exchange Act and the rules and regulations of the Commission thereunder, and present a true and fair view of the consolidated financial position of the Parent and its subsidiaries, as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such consolidated financial statements have been prepared in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board (“IFRS-IASB”) and the International Financial Reporting Standards as adopted by the United Kingdom (“IFRS-UK”) applied on a consistent basis throughout the periods covered thereby.
(g) No Material Adverse Change. Since the date of the most recent consolidated financial statements of the Parent included in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any material adverse change in or affecting the business, consolidated financial position, consolidated results of operations or prospects of the Parent and its subsidiaries taken as a whole, as applicable, except in each case as otherwise disclosed in the Registration Statement, the Time of Sale Information or the Prospectus.
(h) Organization and Good Standing. The Issuer and Guarantors have been duly organized, are validly existing and are in good standing under the laws of each of their respective jurisdictions of organization (to the extent that a legal concept of “good standing” is provided for under the laws of such jurisdictions of organization), except where the failure to be so qualified, in good standing or have such power or authority would not reasonably be expected to, individually or in the aggregate, have a material adverse effect on the business, financial position, results of operations or prospects of the Parent and its subsidiaries taken as a whole or on the performance by the Issuer and the Guarantors of their respective obligations under the Notes and the applicable Guarantees, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”).
(i) Due Authorization. The Issuer and each Guarantor have full right, power and authority to execute and deliver this Agreement, the Notes, the Guarantees and the Indenture (collectively, the “Transaction Documents”), as applicable, and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of each transaction contemplated thereby has been duly and validly taken.
(j) The Indenture. The Indenture has been duly qualified under the Trust Indenture Act, has been duly authorized, executed and delivered by the Issuer and each Guarantor party thereto and constitutes a valid and legally binding agreement of the Issuer and each Guarantor party thereto enforceable against the Issuer and each Guarantor party thereto in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally from time to time in effect or by general principles of equity, regardless of whether considered in a proceeding in equity or at law (collectively, the “Enforceability Exceptions”).
(k) The Notes and the Guarantees. The Notes have been duly authorized by the Issuer and, when duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each Guarantor and, when executed and delivered by each Guarantor and when the Notes have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each Guarantor, enforceable against such Guarantor in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(l) No Violation or Default. No event has occurred nor, so far as the Issuer and the Guarantors are aware, have any circumstances arisen since February 9, 2024
which constitute or result in, or would with the giving of notice or lapse of time or fulfilment of any condition or the making of any determination constitute or result in default or the acceleration or breach of any payment obligation under any debt agreement, instrument or arrangement to which the Issuer and any Guarantor is a party, other than as would not reasonably be expected to have a Material Adverse Effect.
(m) No Conflicts. The execution, delivery and performance by the Issuer and each Guarantor of each of the Transaction Documents to which each is a party, the issuance and sale of the Notes (including the Guarantees) and compliance by the Issuer and each Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuer or any Guarantor, pursuant to any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Issuer or any Guarantor is a party, or by which the Issuer or any Guarantor is bound, or to which any of the property or assets of the Issuer or any Guarantor is subject, or (ii) result in any violation of the provisions of the memorandum and articles of association or comparable constitutional documents of the Issuer or any Guarantor, or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation applicable to the Issuer or any Guarantor of any court or arbitrator or governmental or regulatory authority, having jurisdiction over the Issuer or each such Guarantor, except, in the case of (i) and (iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect or a material adverse effect upon the consummation of any transaction contemplated in any of the Transaction Documents.
(n) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority in the United States, the United Kingdom or the Netherlands is required for the execution, delivery and performance by the Issuer and each Guarantor of any of the Transaction Documents to which any is a party, the issuance and sale of the Notes (including each Guarantee) and compliance by the Issuer and each Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for such consents, approvals, authorizations, orders and registrations or qualifications as (i) have been obtained or made under the Securities Act, the Exchange Act and the Trust Indenture Act, (ii) may be required under applicable state securities laws or foreign securities laws or (iii) may be required in connection with the admission of the Notes to trading on any exchange.
(o) Legal Proceedings. Except as disclosed in each of the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Issuer or any Guarantor is or may be a party or to which any property of the Issuer or any Guarantor is or may be the subject that, individually or in the aggregate, if determined adversely to the Issuer or any Guarantor, could reasonably be expected to have a Material Adverse Effect or a
material adverse effect upon the consummation of any transaction contemplated in any of the Transaction Documents; and no such investigations, actions, suits or proceedings are threatened or, to the best knowledge of the Issuer and each Guarantor, contemplated by any governmental or regulatory authority or by others.
(p) Auditors. KPMG LLP (UK), which has audited the consolidated historical financial statements for the years ended December 31, 2021, 2022 and 2023 of the Parent and its subsidiaries and delivered their reports with respect to such financial statements, were, on the date of such reports, independent auditors with respect to the Parent in accordance with audit regulation and guidance issued by the Institute of Chartered Accountants in England and Wales.
(q) Investment Company Act. None of the Issuer or the Guarantors is, and after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as disclosed in each of the Time of Sale Information and the Prospectus, none of them will be, required to register as an “investment company” as such term is defined in the U.S. Investment Company Act of 1940, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder.
(r) Disclosure Controls. The Parent maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to ensure that information required to be disclosed by the Parent in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Parent’s management as appropriate to allow timely decisions regarding required disclosure. The Parent’s management has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(s) Accounting Controls. The Parent maintains a system of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS-UK, IFRS-IASB or applicable local generally accepted accounting principles (“GAAP”), including, but not limited to internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS-UK, IFRS-IASB or applicable local GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (A) There were no (i) material weaknesses or (ii) significant deficiencies (which, in the case of (ii), would be material in the context of the offering of the Notes) in the internal controls of the Parent in respect of the fiscal
years ended December 31, 2021, 2022 and 2023, and (B) to the best knowledge of the Parent, as of the date hereof, there are no (i) material weaknesses or (ii) significant deficiencies (which, in the case of (ii), would be material in the context of the offering of the Notes) in the internal controls of the Parent.
(t) Anti-Corruption Matters. Except for potential violations in relation to the matters disclosed under the heading “Notes on the Accounts—Note 31 Contingent liabilities and financial commitments—Investigations” in the Parent’s Annual Report on Form 20-F dated February 9, 2024, and in each of the Time of Sale Information and the Prospectus, neither the Issuer nor the Guarantors nor, to the knowledge of each of the Issuer and Guarantors, any director, officer, agent or employee of the Issuer or the Guarantors, has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of any applicable anti-bribery or anti-corruption law or regulation; or made, offered or promised to make, or authorized the payment or giving of any bribe, rebate, payoff, influence payment, facilitation payment, kickback or other unlawful payment or gift of money or anything of value prohibited under any applicable law or regulation and the Issuer and the Guarantors have conducted their businesses in compliance with such applicable laws and regulations and have in place and will enforce policies and procedures designed to ensure compliance therewith.
(u) Compliance with Money Laundering Laws. The operations of each of the Issuer and the Guarantors are in compliance with all applicable statutes and administrative regulations relating to money-laundering, unlawful financial activities, and control and prevention of terrorism, and the Issuer and the Guarantors have in place and will enforce policies and procedures designed to ensure continued compliance therewith.
(v) Economic Sanctions. None of the Issuer, Guarantors or their respective subsidiaries or, to the knowledge of the Issuer or the Guarantors, any director, officer, agent or employee of the Issuer, the Guarantors or any of their respective subsidiaries is currently the subject of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”). The Issuer will not, directly or indirectly, use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing activities or business of or with any person that, at the time of such financing, is the subject of any U.S. sanctions administered by OFAC or any sanctions administered by the Commission of the European Union or His Majesty’s Treasury. Each Underwriter, the Issuer and each Guarantor agrees and confirms that it is not entitled to the benefit of or does not make, seek, or repeat, as appropriate, the representations and warranties in this clause (v) to the extent that those provisions would result in a violation of Council Regulation (EC) 2271/1996 and/or any applicable national law which purports to create liability in respect of such violation in any member state of the European Union or in the United Kingdom.
(w) Sarbanes-Oxley Act. There is and has been no failure on the part of the Parent or any of the Parent’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications, in each case of the Sarbanes-Oxley Act.
(x) Status under the Securities Act. The Parent is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Notes.
5. Further Agreements of the Issuer and the Guarantors. The Issuer and each Guarantor jointly and severally covenants and agrees with each Underwriter that:
(a) Required Filings. The Issuer and the Guarantors will file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, as applicable, and will file any Issuer Free Writing Prospectus (including the pricing term sheet in the form of Annex B hereto) to the extent required by Rule 433 under the Securities Act; and the Issuer will file promptly all reports or information statements required to be filed by the Issuer with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act during the Prospectus Delivery Period (as defined below); and the Issuer will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City within a reasonable amount of time prior to such proposed use, in such quantities as the Representatives may reasonably request. The Issuer will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Issuer will deliver, without charge, to each Underwriter (i) a copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (ii) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means the period of time during which a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) relating to the Notes is required by law to be delivered in connection with sales of the Notes by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before using, authorizing, approving or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, during the Prospectus Delivery Period, the Issuer will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus,
amendment or supplement for review and will not use, authorize, approve or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Issuer will advise the Representatives promptly during the Prospectus Delivery Period (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any of the Preliminary Prospectus, the Prospectus or the Time of Sale Information or any Issuer Free Writing Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event as a result of which the Prospectus, any of the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Issuer of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Issuer of any notice with respect to any suspension of the qualification of the Notes for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuer will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Time of Sale Information, Issuer Free Writing Prospectus or the Prospectus, or suspending any such qualification of the Notes and, if any such order is issued, will obtain as soon as practicable the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement any of the Time of Sale Information to comply with law, the Issuer will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters such amendments or supplements to any of the Time of Sale Information (including any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of
Sale Information as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law; provided that nothing in this paragraph shall require supplementary listing particulars to be prepared, submitted to any securities exchange or listing authority for approval or published.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Issuer will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law; provided that nothing in this paragraph (f) shall require supplementary listing particulars to be prepared, submitted to any securities exchange or listing authority for approval or published.
(g) Blue Sky Compliance. The Issuer will qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request in due course and will continue such qualifications in effect so long as required for the distribution of the Notes; provided that neither the Issuer nor the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) Clear Market. During the period from and including the date hereof through and including the Closing Date, none of the Issuer or any Guarantor will, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities in the United States issued or guaranteed by the Issuer or any Guarantor and having a tenor of more than one year.
(i) Use of Proceeds. The Issuer will apply the net proceeds from the sale of the Notes as described in each of the Time of Sale Information and the Prospectus, as such Prospectus may be amended or supplemented from time to time, under the heading “Use of Proceeds”.
(j) Public Disclosure of Information. The Issuer authorizes Barclays Capital Inc. to make adequate public disclosure of information and to act as the central point responsible for handling any request from a competent authority, in each case as required by Article 6(5) of Commission Delegated Regulation (EU) 2016/1052 of March 8, 2016
with regard to regulatory technical standards for the conditions applicable to buy-back programs and stabilization measures, including as it forms part of United Kingdom domestic law.
(k) Clearance and Settlement. The Issuer will cooperate with the Representatives and use its reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(l) No Stabilization. None of the Issuer or Guarantors will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Notes.
(m) Exchange Listing. The Issuer will use its reasonable efforts to list the Notes on the securities exchange designated in the pricing term sheet.
(n) Earning Statement. The Parent will make generally available to its security holders and the Representatives an earning statement of the Parent that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder covering a period of at least twelve months; provided that the Parent will be deemed to have furnished such statement to its security holders and the Representatives if it is filed in accordance with Rule 158 of the Securities Act; provided further that the Statement of Comprehensive Income (or equivalent) included in the Parent’s Annual Report on Form 20-F dated February 9, 2024 is deemed to satisfy this requirement.
6. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not used and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Issuer and not incorporated by reference into the Registration Statement and any press release issued by the Issuer) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A hereto or prepared pursuant to Section 4(c) or Section 5(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Issuer in advance in writing. Notwithstanding the foregoing, the Underwriters may use the pricing term sheet referred to in Annex B hereto without the consent of the Issuer.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering of the Notes (and will promptly notify the Issuer if any such proceeding against it is initiated during the Prospectus Delivery Period).
7. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase Notes on the Closing Date as provided herein is subject to the performance by the Issuer and each Guarantor of their respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 5(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Issuer and each Guarantor contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Issuer, each Guarantor and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (i) the Time of Sale and (ii) the execution and delivery of this Agreement and prior to the Closing Date, (A) no downgrading shall have occurred in the rating accorded to the Notes or any other debt securities or preferred stock issued or guaranteed by the Parent or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 3(a)(62) under the Exchange Act; and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Notes or of any other debt securities or preferred stock issued or guaranteed by the Parent or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 4(g) hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the judgment of the Representatives, after consultation with the Parent if practicable, makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing Date a certificate either of an Executive Director or the Group Treasurer of the Parent (i) confirming that the representations and warranties of the Issuer and each Guarantor in this Agreement are true and correct and that the Issuer and each Guarantor have complied with all covenants and agreements and satisfied all conditions on their part
to be performed or satisfied hereunder at or prior to the Closing Date and (ii) substantially to the effect set forth in paragraphs (b) and (d) of this Section 7. Any such person signing and delivering such certificate may certify to his or her knowledge.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, KPMG LLP (UK) shall have furnished to the Representatives, at the request of the Parent, letters, dated the respective dates of delivery thereof, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the applicable financial statements and certain other financial information contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(g) Opinion and 10b-5 Statement of Counsel for the Issuer. (i) Linklaters LLP, English counsel for the Issuer and the Guarantors, shall have furnished to the Representatives, at the request of the Issuer and the Parent, their written opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form of Annex C hereto; (ii) Stibbe N.V., Dutch counsel for BATNF, shall have furnished to the Representatives, at the request of BATNF, their written opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form of Annex D hereto; (iii) Womble Bond Dickinson (US) LLP, North Carolina counsel for RAI, shall have furnished to the Representatives, at the request of RAI, their written opinion, dated the Closing Date and addressed to the Underwriters, substantially in the form of Annex E hereto; and (iv) Cravath, Swaine & Moore LLP, U.S. counsel for the Issuer and the Guarantors, shall have furnished to the Representatives, at the request of the Issuer and the Guarantors, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, substantially in the form of Annex F hereto; in each case, in form and substance reasonably satisfactory to the Representatives.
(h) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement of Davis Polk & Wardwell London LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees.
(j) Clearance and Settlement. The Notes shall be eligible for clearance and settlement through DTC.
(k) Additional Documents. On or prior to the Closing Date, the Issuer and each Guarantor shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to Davis Polk & Wardwell London LLP as counsel for the Underwriters.
8. Indemnification and Contribution. (a) Indemnification of the Underwriters. The Issuer and each Guarantor jointly and severally agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers, employees, agents of each Underwriter and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, any Time of Sale Information or the Prospectus (or any amendment or supplement thereto), or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use therein.
(b) Indemnification of the Issuer and each Guarantor. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Issuer, each Guarantor, each of their respective directors and officers and each person, if any, who controls the Issuer or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity to each Underwriter set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, any Time of Sale Information or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information consists of the following: (i) the
statements set forth in the last paragraph of the cover page regarding the delivery of the Notes and (ii), under the heading “Underwriting”, (A) the statements set forth in the fourth paragraph related to offer prices, and (B) the statements set forth in the seventh, eighth, ninth, tenth, eleventh and twelfth paragraphs, related to market-making, stabilization, syndicate covering transactions and penalty bids, in each of the Preliminary Prospectus in the Time of Sale Information and the final prospectus supplement in the Prospectus.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 8 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 8. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 8 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses (excluding any recoverable VAT (or similar taxes levied by reference to added value or sales)) of such proceeding and shall pay the fees and expenses (excluding any recoverable VAT (or similar taxes levied by reference to added value or sales)) of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses (including any amount paid for or in respect of VAT (or similar tax levied by reference to added value or sales)) of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control
persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Issuer, the Guarantors, their respective directors and officers and any control persons of the Issuer and any Guarantor shall be designated in writing by the Issuer. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened claim in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient for any reason in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer and the Guarantors on the one hand and the Underwriters on the other from the offering of the Notes or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Issuer and the Guarantors on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Issuer and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Issuer from the sale of the Notes and the total discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Notes. The relative fault of the Issuer and the Guarantors, on the one hand, and the Underwriters, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer or any Guarantor or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Issuer, each Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 8, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Notes exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 8 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
9. Effectiveness of Agreement. This Agreement shall become effective as of the date first written above upon the execution and delivery hereof by the parties hereto.
10. Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Issuer, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the U.S. over-the-counter market; (ii) trading of any securities issued or guaranteed by the Issuer or any Guarantor shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by U.S. 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 either within or outside the United States that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
11. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Notes that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Notes by other persons satisfactory to the Issuer and the Guarantors on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Notes, then the Issuer and the Guarantors shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters, acting reasonably, to purchase such Notes on such terms. If other persons become obligated or agree to purchase the Notes of a defaulting Underwriter, either the non-defaulting Underwriters or the Issuer and the Guarantors may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Issuer and the Guarantors or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Issuer and the Guarantors agree to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 11, purchases Notes that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Issuer and the Guarantors as provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Notes, then the Issuer and each Guarantor shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Notes that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Notes that such Underwriter agreed to purchase hereunder) of the Notes of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Issuer and the Guarantors as provided in paragraph (a) above, the aggregate principal amount of such Notes that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Notes, or if the Issuer and the Guarantors shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 11 shall be without liability on the part of the Issuer or any Guarantor, except that the Issuer and each Guarantor will continue to be liable for the payment of expenses as set forth in Section 12 hereof and except that the provisions of Section 8 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Issuer, any Guarantor or any non-defaulting Underwriter for damages caused by its default.
12. Payment of Expenses. (a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Issuer and each Guarantor jointly and severally agree to pay or cause to be paid all costs and expenses incident to the performance of their respective obligations hereunder (excluding, subject to Clause 12(a)(v) and Clause 12(b) below, the fees and expenses of counsel to the Underwriters), including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Notes (excluding any recoverable value added tax) as contemplated by this Agreement, and any transfer taxes payable in connection therewith; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Issuer’s and each Guarantor’s counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Notes under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the Notes, if any; (vii) the preparation of the Indenture and fees and expenses of the Trustee (including related fees and expenses of any counsel to the Trustee); (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering of the Notes by, the Financial Industry Regulatory Authority, and the approval of the Notes for book-entry transfer by DTC; and (ix) any fees and expenses incurred in connection with the listing of the Notes on any securities exchange.
(b) If (i) this Agreement is terminated pursuant to Section 10, (ii) the Issuer for any reason fails to tender the Notes for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Notes for any reason permitted under this Agreement, the Issuer and each Guarantor jointly and severally agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby; provided that, in respect of expenses so incurred by the Underwriters in the case of (i) above, such reimbursement shall not exceed $300,000 (exclusive of any value added tax which may be payable).
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and any controlling persons referred to herein, and the affiliates, officers and directors of each Underwriter referred to in Section 8 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Notes from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
14. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Issuer, each Guarantor and the Underwriters contained in this Agreement or made by or on behalf of the Issuer, each Guarantor or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Notes and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Issuer, each Guarantor or the Underwriters.
15. Certain Defined Terms. For purposes of this Agreement (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City or London; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
16. Miscellaneous. (a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives, addressed as follows:
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
United States
Attention: Syndicate Registration
Fax: +1 646-834-8133
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
United States
Attention: Transaction Management Group
E-mail: tmg.americas@us.hsbc.com
Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020
United States
Attention: Debt Capital Markets
Email: legalnotices@mizuhogroup.com
Santander US Capital Markets LLC
437 Madison Avenue
New York, New York 10022
United States
E-mail: DCMAmericas@santander.us
Wells Fargo Securities, LLC
550 South Tyron Street, 5th Floor
Charlotte, North Carolina 28202
United States
Attention: Transaction Management
Fax: (704) 410-0326
Email: tmgcapitalmarkets@wellsfargo.com
with a copy to:
Davis Polk & Wardwell London LLP
5 Aldermanbury Square
London EC2V 7HR
United Kingdom
Attention: Reuven B. Young
Email: Reuven.Young@DavisPolk.com
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(d) Jurisdiction. The Issuer and the Guarantors agree that any suit, action or proceeding against any of them brought by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or by any person who controls any Underwriter, arising solely out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the courts of the State of New York in the City and County of New York and of the United States for the Southern District of New York, and waives to the fullest extent that each may effectively do so any objection of which it may now or hereafter have to the laying of venue or of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The Parent, BATNF and BATIF hereby appoint the Issuer as their authorized agent (the “Authorized Agent”) (and the Issuer hereby accepts such appointment) upon whom process may be served in any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated herein that may be instituted in any U.S. Federal or New York State court in the Borough of Manhattan in the City, County and State of New York, United States of America, by any Underwriter, the directors, officers, employees, affiliates and agents of any Underwriter, or any person who controls any Underwriter, and expressly accept the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceeding. The Parent, BATNF and BATIF hereby represent and warrant that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Parent,
BATNF and BATIF agree to take any and all action, including the filing of any and all documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Parent, BATNF and BATIF.
(e) Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Issuer, the Guarantors and the Underwriters, or any of them, with respect to the subject matter hereof.
(f) Waiver of Jury Trial. Each party hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
(g) Currency. Each reference in this Agreement to U.S. dollars (the “relevant currency”), including by use of the symbol “$”, is of the essence. To the fullest extent permitted by law, the obligation of each party in respect of any amount due under this Agreement will, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the party entitled to receive such payment may, in accordance with its normal procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the business day immediately following the day on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls short of the amount originally due, the applicable party will pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall. Any obligation of the applicable party not discharged by such payment will, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, will continue in full force and effect.
(h) Waiver of Immunity. To the extent that the Issuer or any Guarantor has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and such Guarantor hereby irrevocably waive and agree not to plead or claim such immunity in respect of their respective obligations under this Agreement.
(i) Waiver of Tax Confidentiality. Notwithstanding anything herein to the contrary, purchasers of the Notes (and each employee, representative or other agent of a purchaser) may disclose to any and all persons, without limitation of any kind, the U.S. tax treatment and U.S. tax structure of any transaction contemplated herein and all materials of any kind (including opinions or other tax analyses) that are provided to the purchasers of the Notes relating to such U.S. tax treatment and U.S. tax structure, other than any information for which nondisclosure is reasonably necessary in order to comply with applicable securities laws.
(j) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(k) Electronic Communication. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement, if any, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the United States Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
(l) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(m) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
17. Contractual Recognition of EU Bail-In. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between any BRRD Party, the Issuer and the Guarantors, the Issuer and each of the Guarantors acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by:
(a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any BRRD Party to the Issuer and the Guarantors under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant BRRD Party or another
person, and the issue to, or conferral on, the Issuer and the Guarantors of such shares, securities or obligations;
(iii) the cancellation of the BRRD Liability; or
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
For purposes of this Section 17, the following terms shall have the respective meanings set out below:
“Bail-in Legislation” shall mean in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
“Bail-in Powers” shall mean any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
“BRRD” shall mean Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“BRRD Liability” shall mean a liability in respect of which the relevant Write-down and Conversion Powers in the applicable Bail-in Legislation may be exercised.
“BRRD Party” means any party to this Agreement subject to the Bail-in Legislation.
“EU Bail-in Legislation Schedule” shall mean the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/.
“Relevant Resolution Authority” shall mean the resolution authority with the ability to exercise any Bail-in Powers in relation to any BRRD Party.
18. Contractual Recognition of UK Bail-In. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between any UK BRRD Party, the Issuer and the Guarantors, the Issuer and each of the Guarantors acknowledges and accepts that a UK Bail-in Liability arising under this Agreement
may be subject to the exercise of UK Bail-in Powers by the relevant United Kingdom resolution authority, and acknowledges, accepts and agrees to be bound by:
(a) the effect of the exercise of UK Bail-in Powers by the relevant United Kingdom resolution authority in relation to any UK Bail-in Liability of any UK BRRD Party to the Issuer and the Guarantors under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the relevant UK BRRD Party or another person, and the issue to, or conferral on, the Issuer and the Guarantors of such shares, securities or obligations;
(iii) the cancellation of the UK Bail-in Liability; or
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement, as deemed necessary by the relevant United Kingdom resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant United Kingdom resolution authority.
For purposes of this Section 18, the following terms shall have the respective meanings set out below:
“UK Bail-in Legislation” means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
“UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
“UK BRRD Party” means any party to this Agreement subject to UK Bail-in Powers.
19. Recognition of the U.S. Special Resolution Regimes. In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
In the event that any Underwriter that is a Covered Entity or a Covered Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For the purposes of this Section 19:
“Covered Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b);
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and
“U.S. Special Resolution Regime” means each of (i) the U.S. Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[SIGNATURE PAGES FOLLOW]
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
| | | | | | | | | | | | | | |
| Very truly yours, | |
| | | | |
| B.A.T CAPITAL CORPORATION | |
| | | | |
| | by: | /s/ Steven Coppock | |
| | | Name: Steven Coppock | |
| | | Title: Treasurer | |
| | | | |
| BRITISH AMERICAN TOBACCO P.L.C. | |
| | | | |
| | by: | /s/ Tadeu Marroco | |
| | | Name: Tadeu Marroco | |
| | | Title: Chief Executive | |
| | | | |
| B.A.T. INTERNATIONAL FINANCE P.L.C. | |
| | | | |
| | by: | /s/ Neil Wadey | |
| | | Name: Neil Wadey | |
| | | Title: Director | |
| | | | |
| B.A.T. NETHERLANDS FINANCE B.V. | |
| | | | |
| | by: | /s/ Hendrik Lina | |
| | | Name: Hendrik Lina | |
| | | Title: Director | |
| | | | |
| | by: | /s/ Judith Bollen | |
| | | Name: Judith Bollen | |
| | | Title: Director | |
| | | | |
| REYNOLDS AMERICAN INC. | |
| | | | |
| | by: | /s/ Anthony B. Petitt | |
| | | Name: Anthony B. Petitt | |
| | | Title: Treasurer | |
[Signature Page to BATCAP Underwriting Agreement]
Accepted as of the date hereof, for itself and on behalf of the several Underwriters listed in Schedule I hereto:
| | | | | | | | | | | | | | | | | |
| BARCLAYS CAPITAL INC. | | |
| | | | | |
| | | | | |
| | by: | /s/ Kenneth Chang | |
| | | Name: Kenneth Chang | | |
| | | Title: Managing Director | | |
| | | | | |
| | | | | |
| HSBC SECURITIES (USA) INC. | | |
| | | | | |
| | | | | |
| | by: | /s/ Patrice Altongy | |
| | | Name: Patrice Altongy | | |
| | | Title: Managing Director | | |
| | | | | |
| | | | | |
| MIZUHO SECURITIES USA LLC | | |
| | | | | |
| | | | | |
| | by: | /s/ Joseph Santaniello | | |
| | | Name: Joseph Santaniello | | |
| |
| Title: Director | | |
| | | | | |
| | | | | |
| SANTANDER US CAPITAL MARKETS LLC |
| | | | | |
| | | | | |
| | by: | /s/ Richard Zobkiw | |
| Name: Richard Zobkiw | | |
| Title: Executive Director | | |
| | | | | |
| | | | | |
| WELLS FARGO SECURITIES LLC | |
| | | | | |
| | by: | /s/ Carolyn Hurley | |
| | | Name: Carolyn Hurley | | |
| | | Title: Managing Director | | |
[Signature Page to BATCAP Underwriting Agreement]
SCHEDULE 1
| | | | | | | | | | | | | | |
| Underwriter | | |
| | 2031 Notes | | 2034 Notes |
| | | | |
| Barclays Capital Inc. | | $ | 136,000,000.00 | | | $ | 136,000,000.00 | |
| | | | |
| HSBC Securities (USA) Inc | | $ | 136,000,000.00 | | | $ | 136,000,000.00 | |
| | | | |
| Mizuho Securities USA LLC. | | $ | 136,000,000.00 | | | $ | 136,000,000.00 | |
| | | | |
| Santander US Capital Markets LLC | | $ | 136,000,000.00 | | | $ | 136,000,000.00 | |
| | | | |
| Wells Fargo Securities, LLC | | $ | 136,000,000.00 | | | $ | 136,000,000.00 | |
| | | | |
| BBVA Securities Inc. | | $ | 42,500,000.00 | | | $ | 42,500,000.00 | |
| | | | |
| NatWest Markets Securities Inc. | | $ | 42,500,000.00 | | | $ | 42,500,000.00 | |
| | | | |
| SMBC Nikko Securities America, Inc. | | $ | 42,500,000.00 | | | $ | 42,500,000.00 | |
| | | | |
| Standard Chartered Bank | | $ | 42,500,000.00 | | | $ | 42,500,000.00 | |
| | | | |
| Total | | $ | 850,000,000.00 | | | $ | 850,000,000.00 | |
ANNEX A
Additional Time of Sale Information
Pricing term sheet containing the terms of the Notes, substantially in the form of Annex B
ANNEX B
Pricing Term Sheet
B.A.T CAPITAL CORPORATION
$850,000,000 5.834% Notes due 2031
$850,000,000 6.000% Notes due 2034
February 15, 2024
| | | | | | | | | | | |
Issuer: | B.A.T Capital Corporation (the “Issuer”) |
| | | |
Guarantors: | British American Tobacco p.l.c., B.A.T. International Finance p.l.c., B.A.T. Netherlands Finance B.V. and, unless its guarantee is released in accordance with the indenture governing the Notes (as defined below), Reynolds American Inc. |
| | | |
Security Title: | $850,000,000 5.834% Notes due 2031 (the “2031 Notes”) $850,000,000 6.000% Notes due 2034 (the “2034 Notes” and, together with the 2031 Notes, the “Notes”) |
| | | |
Ranking: | Senior and Unsubordinated |
| | | |
Form: | SEC-Registered Global Notes |
| | | |
Principal Amount: | $850,000,000 for the 2031 Notes $850,000,000 for the 2034 Notes |
| | | |
Maturity Date: | February 20, 2031 for the 2031 Notes February 20, 2034 for the 2034 Notes |
| | | |
Interest Rate: | 5.834% per annum for the 2031 Notes 6.000% per annum for the 2034 Notes |
| | | |
Benchmark Treasury: | 4.000% due January 31, 2031 for the 2031 Notes 4.000% due February 15, 2034 for the 2034 Notes |
| | | |
Benchmark Treasury Price and Yield: | 98-15+ / 4.254% for the 2031 Notes 98-00+ / 4.246% for the 2034 Notes |
| | | |
Spread to Benchmark Treasury: | +158 bps for the 2031 Notes +183 bps for the 2034 Notes |
| | | |
| | | | | | | | | | | |
Yield to Maturity: | 5.834% for the 2031 Notes 6.076% for the 2034 Notes |
| | | |
Day Count Convention: | 30/360 (or, in the case of an incomplete month, the number of days elapsed) |
| | | |
Business Day Convention: | Following, Unadjusted |
| | | |
Price to Public: | 100.000% for the 2031 Notes 99.437% for the 2034 Notes |
| | | |
Net Proceeds to Issuer (before Expenses): | $847,025,000 for the 2031 Notes $841,814,500 for the 2034 Notes |
| | | |
Interest Payment Dates: | Semi-annually in arrear on February 20 and August 20 of each year, commencing on August 20, 2024 |
| | | |
Interest Payment Record Dates: | The close of business on the fifteenth calendar day preceding each Interest Payment Date, whether or not such day is a Business Day |
| | | |
Optional Redemption: | The Issuer may redeem a series of Notes, in whole or in part, at its option, at any time and from time to time before the applicable “Par Call Date” (as set out in the table below) at a redemption price equal to the greater of (x) 100% of the principal amount of the series of Notes to be redeemed and (y) the sum of the present values of the applicable Remaining Scheduled Payments (as defined in the Prospectus) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months or, in the case of an incomplete month, the number of days elapsed) at the Treasury Rate (as defined in the Prospectus), plus the applicable Make-Whole Spread (as set out in the table below) together with accrued and unpaid interest on the principal amount of the series of Notes to be redeemed to, but excluding, the date of redemption. The Issuer may redeem a series of Notes on or after the applicable Par Call Date at a redemption price equal to 100% of the principal amount of the series of Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption.
|
| | | | | | | | | | | |
| Series | Par Call Date | Make-Whole Spread |
| 2031 Notes | December
20, 2030 | 25 basis points |
| 2034 Notes | November
20, 2033 | 30 basis points |
| | | |
Trade Date: | February 15, 2024 |
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Expected Settlement Date: | February 20, 2024 (T+2) |
| | | |
Expected Ratings: | Baa2 (Moody’s) / BBB+ (S&P) / BBB (Fitch) |
| | | |
CUSIP: | 05526D BY0 for the 2031 Notes 05526D BZ7 for the 2034 Notes |
| | | |
ISIN: | US05526DBY04 for the 2031 Notes US05526DBZ78 for the 2034 Notes |
| | | |
Governing Law: | State of New York |
| | | |
Listing and Trading: | Application will be made to list each series of the Notes on the New York Stock Exchange. No assurance can be given that such application will be approved or that any of the Notes will be listed and, if listed, that such Notes will remain listed for the entire term of such Notes. Currently there is no active trading market for the Notes. |
| | | |
Joint Book-Running Managers: | Barclays Capital Inc. HSBC Securities (USA) Inc. Mizuho Securities USA LLC Santander US Capital Markets LLC Wells Fargo Securities, LLC |
| | | |
Bookrunners: | BBVA Securities Inc. NatWest Markets Securities Inc. SMBC Nikko Securities America, Inc. Standard Chartered Bank |
Note: A security rating is not a recommendation to buy, sell or hold securities and should be evaluated independently of any other rating. The rating is subject to revision or withdrawal at any time by the assigning rating organization.
It is expected that delivery of the Notes will be made against payment therefor on or about February 20, 2024, which will be two business days (as such term is used for purposes of Rule
15c6-1 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”)) following the date hereof (such settlement cycle being referred to as “T+2”).
Standard Chartered Bank will not effect any offers or sales of any Notes in the United States unless it is through one or more U.S. registered broker-dealers as permitted by the Financial Industry Regulatory Authority.
The Issuer and the Guarantors have filed a registration statement (including a Prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the Prospectus in that registration statement and other documents the Issuer and the Guarantors have filed with the Securities and Exchange Commission (the “SEC”) for more complete information about the Issuer, the Guarantors and this offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, any underwriter or any dealer participating in the offering of the Notes will arrange to send you the Prospectus if you request it by calling Barclays Capital Inc. toll-free at 1-888-603-5847, HSBC Securities (USA) Inc. toll-free at 1-866 811-8049, Mizuho Securities USA LLC toll-free at 1-866-271-7403, Santander US Capital Markets LLC toll-free at 1-855-403-3636 and Wells Fargo Securities, LLC toll-free at 1-800-645-3751.
This Pricing Term Sheet is only being distributed to and is only directed at persons who are located outside the United Kingdom (the “UK”) or persons who are (i) investment professionals falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) (the “Order”), (ii) persons falling within Article 49(2)(a) to (d) of the Order or (iii) persons to whom an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) in connection with the issue or sale of any Notes may lawfully be communicated or caused to be communicated (all such persons together being referred to as “relevant persons”). Accordingly, by accepting delivery of this Pricing Term Sheet, the recipient warrants and acknowledges that it is such a relevant person. The Notes are available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such Notes will be engaged in only with, relevant persons. Any person who is not a relevant person should not act or rely on this document or any of its contents. No part of this Pricing Term Sheet should be published, reproduced, distributed or otherwise made available in whole or in part to any other person without the prior written consent of the Issuer. The Notes are not being offered or sold to any person in the United Kingdom, except in circumstances which will not result in an offer of securities to the public in the United Kingdom within the meaning of Part VI of the FSMA.
Prohibition of sales to European Economic Area (“EEA”) retail investors: The Notes are not intended to be offered, sold or otherwise made available to, and should not be offered, sold or otherwise made available to, any retail investor in the EEA. For these purposes, a “retail investor” means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”), or (ii) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129. Consequently, no key information document required by
Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling the Notes or otherwise making them available to retail investors in the EEA has been prepared and therefore offering or selling the Notes or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation.
Prohibition of sales to UK retail investors: The Notes are not intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to, any retail investor in the UK. For these purposes, a “retail investor” means a person who is one (or more) of: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of UK domestic law by virtue of the European Union (Withdrawal) Act 2018 (as amended, the “EUWA”); (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of UK domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of UK domestic law by virtue of the EUWA. Consequently, no key information document required by Regulation (EU) No 1286/2014 as it forms part of UK domestic law by virtue of the EUWA (the “UK PRIIPs Regulation”) for offering or selling the Notes or otherwise making them available to retail investors in the UK has been prepared and therefore offering or selling the Notes or otherwise making them available to any retail investor in the UK may be unlawful under the UK PRIIPs Regulation.
ANNEX C
[Form of Opinion of English Counsel]
ANNEX D
[Form of Opinion of Dutch Counsel]
ANNEX E
[Form of Opinion of North Carolina Counsel]
ANNEX F
[Form of Opinion of U.S. Counsel]
ANNEX G
[Form of 10b-5 Letter of U.S. Counsel]
SUPPLEMENTAL INDENTURE NO. 20 (this “Supplemental Indenture”), dated as of February 20, 2024 among B.A.T Capital Corporation, a corporation incorporated in the state of Delaware (the “Company”), as issuer, British American Tobacco p.l.c., a public limited company incorporated under the laws of England and Wales (the “Parent”), B.A.T. International Finance p.l.c., a public limited company incorporated under the laws of England and Wales (“BATIF”), B.A.T. Netherlands Finance B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands (“BATNF”), and, until its guarantee is released in accordance with the Base Indenture (if ever), Reynolds American Inc., a North Carolina corporation (“RAI”), as guarantors (the “Guarantors”) and Citibank, N.A., as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture dated as of September 6, 2019 (the “Base Indenture”), providing for the issuance from time to time of an unlimited aggregate principal amount of guaranteed debt securities;
WHEREAS, Section 7.01(g) of the Base Indenture provides that without the consent of any Holder, the Company, the Guarantors and the Trustee may amend or supplement the Base Indenture in order to, among other things, issue an unlimited aggregate principal amount of notes under the Base Indenture;
WHEREAS, pursuant to Section 7.01(g) of the Base Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture;
WHEREAS, the Company and the Guarantors have taken all necessary corporate action to authorize the execution and delivery of this Supplemental Indenture;
WHEREAS, as contemplated by Section 2.01 of the Base Indenture, the Company intends to issue, and the Guarantors intend to guarantee, a new series of guaranteed debt securities to be known as the Company’s “5.834% Notes due 2031” under the Base Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders of the 2031 Notes (as defined below) as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.
Except as otherwise expressly provided in this Supplemental Indenture, all terms used in this Supplemental Indenture which are defined in the Base Indenture shall have the meanings ascribed to them by the Base Indenture.
SECTION 1.02. Effect of Headings.
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 1.03. Separability Clause.
In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.04. Benefits of Instrument.
Nothing in this Supplemental Indenture expressed, and nothing that may be implied from any of the provisions hereof, is intended, or shall be construed, to confer upon, or to give to, any Person other than the parties hereto and their successors and the Holders of the 2031 Notes any benefit or any right, remedy or claim under, or by reason of, this Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements contained in this Supplemental Indenture shall be for the sole and exclusive benefit of the parties hereto and their successors and of the Holders of the 2031 Notes.
ARTICLE II
5.834% Notes due 2031
SECTION 2.01. Creation of Series.
There is hereby established a new series of Notes under the Base Indenture entitled “5.834% Notes due 2031” (the “2031 Notes”). The form of the 2031 Notes, including the form of the certificate of authentication, is attached hereto as Exhibit A.
The Company shall issue the 2031 Notes in an aggregate principal amount of $850,000,000. The Company may from time to time, without the consent of the Holders of the 2031 Notes, “reopen” the series of 2031 Notes and create and issue additional Notes having substantially identical terms and conditions as the 2031 Notes (or in all respects except as to issue price and the date from which interest, if any, shall accrue, and except as may otherwise be provided in or pursuant to such Officer’s Certificate or supplemental indenture relating thereto) so that the additional Notes are consolidated and form a single series with the outstanding 2031 Notes.
The 2031 Notes initially shall be represented by one or more 2031 Notes of the same series in registered, global form without interest coupons. The global notes representing the 2031 Notes (collectively, the “2031 Global Notes”) initially shall be (i) registered in the name of the Depository Trust Company (the “Depositary”) or the nominee of such Depositary, in each case
for credit to an account of a member of, or direct or indirect participant in, the Depositary; and (ii) delivered to Citibank, N.A. as custodian for such Depositary.
(a) The maturity date of the principal of the 2031 Notes shall be February 20, 2031 (the “Maturity Date”).
(b) The outstanding principal amount of the 2031 Notes shall accrue interest at a rate equal to 5.834% per annum, as provided in Section 2.03.
(c) Unless supplemented or superseded in this Supplemental Indenture, the terms of the 2031 Notes, including any Events of Default and covenants of the Company and the Guarantors are consistent with the Base Indenture and set forth therein.
SECTION 2.02. Guarantee.
Subject to the terms and applicable limitations set forth in the Base Indenture and the form of 2031 Notes, each Guarantor, hereby jointly and severally, fully, unconditionally and irrevocably guarantees the 2031 Notes and obligations of the Company hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Authentication Agent, and to the Trustee on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the 2031 Notes will be paid in full when due, whether at the Maturity Date, by acceleration or otherwise (including, without limitation, the amount that would become due but for the operation of any automatic stay provision of any Bankruptcy Law), together with interest on the overdue principal, if any, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any 2031 Notes or of any such other obligations, the same will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at the Maturity Date, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 9.03 of the Base Indenture.
SECTION 2.03. Interest.
The 2031 Notes shall bear interest at a rate equal to 5.834% per annum. The 2031 Notes will bear interest from the date of the initial issuance of such 2031 Notes or from the most recent interest payment date to which interest has been paid or provided for, payable semi-annually in arrear on August 20 and February 20 of each year (each, an “Interest Payment Date”), commencing on August 20, 2024, until the Maturity Date, unless previously purchased and cancelled or redeemed by the Company, to the person in whose name any Note is registered at the close of business on the 15th calendar day preceding each Interest Payment Date, whether or not such day is a Business Day (each, a “Record Date”) notwithstanding any transfer or exchange of such 2031 Notes subsequent to the Record Date and prior to such Interest Payment Date, except that, if and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date, and the applicable grace period shall have expired, such defaulted interest may at the option of the Company be paid to the persons in whose names the outstanding 2031 Notes are registered at the close of business on a subsequent Record Date
(which shall not be less than five Business Days prior to the date of payment of such defaulted interest) established by notice sent by or on behalf of the Company to the Holders (which term means registered holders) of the 2031 Notes, not less than 15 days preceding such subsequent Record Date. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months, or in the case of an incomplete month, the number of days elapsed. If the date on which any interest payment or principal payment is to be made is not a Business Day, such payment will be made on the next day which is a Business Day, without any further interest or other amounts being paid or payable in connection therewith.
SECTION 2.04. Place of Payment.
The place or places where the principal of, and premium, if any, and interest, if any, and Additional Amounts, if any, on the 2031 Notes shall be payable, the place or places where any 2031 Notes may be surrendered for registration, transfer or exchange and the place or places where notices and demands to or upon the Company in respect of the 2031 Notes may be served are as set forth in the Base Indenture.
SECTION 2.05. Optional Redemption.
The Company may redeem the 2031 Notes, in whole or in part, at the Company’s option, at any time and from time to time before the Par Call Date (as defined below), at a redemption price equal to the greater of (x) 100% of the principal amount of the 2031 Notes to be redeemed and (y) the sum of the present values of the applicable Remaining Scheduled Payments (as defined below) discounted to the date of redemption (the “Redemption Date”) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months or, in the case of an incomplete month, the number of days elapsed) at the Treasury Rate (as defined below) plus 25 basis points, together with accrued and unpaid interest on the principal amount of the 2031 Notes to be redeemed to, but excluding, the Redemption Date.
If the Company elects to redeem the 2031 Notes on or after the Par Call Date, the Company will pay an amount equal to 100% of the principal amount of the 2031 Notes redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
In connection with such optional redemption the following defined terms apply:
• Par Call Date means December 20, 2030 (two months prior to the Maturity Date of the 2031 Notes).
• Remaining Scheduled Payments means, with respect to each 2031 Note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due from and including the related Redemption Date, but for such redemption, to but excluding the Par Call Date; provided, however, that if that Redemption Date is not an Interest Payment Date with respect to such 2031 Notes, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to, but excluding, that Redemption Date.
• Treasury Rate means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
1. The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
2. If on the third Business Day preceding the Redemption Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call
Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be given in accordance with the Base Indenture at least 10 days but not more than 60 days before the Redemption Date to each Holder of the 2031 Notes to be redeemed. Any redemption may, at the Company’s sole discretion, be subject to the satisfaction of one or more conditions precedent. In the event of a conditional redemption, the notice of conditional redemption shall reflect and specify the conditions to the redemption. Once the notice of redemption is delivered, Notes called for redemption shall, subject to the satisfaction of any applicable conditions, become irrevocably due and payable on the Redemption Date.
If less than all the 2031 Notes are to be redeemed pursuant to this Section 2.05, in the case of a redemption at the Company’s option, the 2031 Notes to be redeemed shall be selected in accordance with applicable procedures of the Depositary.
The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error, and the Trustee and any agent shall be entitled to rely on such calculation.
SECTION 2.06. Redemption for Tax Reasons.
The ability of the Company to redeem the 2031 Notes due to a Change in Tax Law is as set forth in the Base Indenture.
SECTION 2.07. Additional Amounts.
Except as set forth below, the applicability of payments of Additional Amounts under the 2031 Notes is as set forth in the Base Indenture. The Company is not required to pay Additional Amounts, except to the extent described in Section 4.08 of the Base Indenture.
In addition to the exceptions and limitations described in the Base Indenture, no Guarantor shall be required to pay any Additional Amounts for or on account of any taxes imposed or to be withheld pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021).
ARTICLE III
Miscellaneous Provisions
SECTION 3.01. Effectiveness. This Supplemental Indenture will become effective upon its execution and delivery.
SECTION 3.02. Original Issue. The 2031 Notes may, upon execution of this Supplemental Indenture, be executed by the Company and delivered by the Company to the Trustee, as Authentication Agent, for authentication, and the Authentication Agent shall, upon Company order, authenticate and deliver such 2031 Notes as in such Company order provided.
SECTION 3.03. Ratification and Integral Part. The Base Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture will be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided.
SECTION 3.04. Priority. This Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. The provisions of this Supplemental Indenture shall, subject to the terms hereof, supersede the provisions of the Base Indenture with respect to the 2031 Notes to the extent the Base Indenture is inconsistent herewith.
SECTION 3.05. Successors and Assigns. All covenants and agreements in the Base Indenture, as supplemented and amended by this Supplemental Indenture, by the Company and the Guarantors will bind their respective successors and assigns, whether so expressed or not.
SECTION 3.06. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR TO SUCH STATUTE) WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 3.07. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. Any electronic signature hereof shall be of the same legal effect, validity or enforceability as a manually executed signature, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signature and Records Act or any other similar state laws based on the Uniform Electronic
Transactions Act. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication sent to the Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature provider as specified in writing to the Trustee by the Company)), in English. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the Trustee including, without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
SECTION 3.08. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and the Guarantors.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| | | | | | | | | | | |
| B.A.T CAPITAL CORPORATION |
| | | |
| by: | /s/ Steven Coppock |
| | Name: | Steven Coppock |
| | Title: | Treasurer |
| | | |
| BRITISH AMERICAN TOBACCO P.L.C. |
| | | |
| by: | /s/ Tadeu Marroco |
| | Name: | Tadeu Marroco |
| | Title: | Chief Executive |
| | | |
| B.A.T. INTERNATIONAL FINANCE P.L.C. |
| | | |
| by: | /s/ Neil Wadey |
| | Name: | Neil Wadey |
| | Title: | Director |
| | | |
| B.A.T. NETHERLANDS FINANCE B.V. |
| | | |
| by: | /s/ Hendrik Lina |
| | Name: | Hendrik Lina |
| | Title: | Director |
| | | |
| by: | /s/ Judith Bollen |
| | Name: | Judith Bollen |
| | Title: | Director |
| | | |
| REYNOLDS AMERICAN INC. |
| | | |
| by: | /s/ Anthony B. Petitt |
| | Name: | Anthony B. Petitt |
| | Title: | Treasurer |
| | | |
| CITIBANK, N.A.,
as Trustee |
| | | |
| by: | /s/ Peter Lopez |
| | Name: | Peter Lopez |
| | Title: | Senior Trust Officer |
[Signature Page to Supplemental Indenture No. 20]
EXHIBIT A
CUSIP No. [●]
B.A.T CAPITAL CORPORATION
5.834% NOTE DUE 2031
B.A.T Capital Corporation, a corporation incorporated in the state of Delaware (the “Company”), for value received, promises to pay to CEDE & CO. or registered assigns the principal sum of $[●], on February 20, 2031.
Interest Payment Dates: August 20 and February 20, commencing on August 20, 2024.
Record Dates: at the close of business on the 15th calendar day that precedes the related Interest Payment Date, whether or not such day is a Business Day.
Reference is made to the further provisions of this 2031 Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this 2031 Note to be signed manually or by facsimile by one of its duly authorized officers.
| | | | | | | | |
| B.A.T CAPITAL CORPORATION |
| | |
| | |
| By: | |
| | Name: |
| | Title: |
Certificate of Authentication
This is one of the 5.834% Notes due 2031 referred to in the within-mentioned Supplemental Indenture No. 20.
| | | | | | | | |
| CITIBANK, N.A., as Authentication Agent |
| | |
| By: | |
| | Authorized Signatory |
| | |
| | |
| Dated: | | |
B.A.T CAPITAL CORPORATION
5.834% NOTE DUE 2031
(1) Interest. B.A.T Capital Corporation, a corporation incorporated in the state of Delaware, as issuer (the “Company”), promises to pay, until the principal hereof is paid or made available for payment, interest on the principal amount set forth on the face hereof at a rate of 5.834% per annum. Interest on the 5.834% Notes due 2031 (the “2031 Notes”) will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from and including February 20, 2024, to but excluding the date on which interest is paid. Interest shall be payable in arrear on each August 20 and February 20, commencing on August 20, 2024. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months or, in the case of an incomplete month, the number of days elapsed. The Company shall pay interest on overdue principal (to the full extent permitted by law) at the rate borne by the 2031 Notes.
(2) Method of Payment. The Company will pay interest to those persons in whose name a 2031 Note is registered on the 2031 Note register at the close of business on the 15th calendar day that precedes each Interest Payment Date, whether or not such day is a Business Day. Interest on the 2031 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. If the date on which any interest payment or principal payment is to be made is not a Business Day, such payment will be made on the next day which is a Business Day, without any further interest or other amounts being paid or payable in connection therewith.
(3) Paying Agent, Transfer Agent and Registrar. Initially, Citibank, N.A. (the “Agent”) will act as a Paying Agent, Transfer Agent and Registrar. The Company may change any Paying Agent, Transfer Agent or Registrar without notice to the Holders of the 2031 Notes. The Company or any of its subsidiaries may act as Paying Agent, Transfer Agent or Registrar.
(4) Indenture. The Company issued the 2031 Notes under an indenture dated as of September 6, 2019 (the “Indenture”) and a supplemental indenture dated as of February 20, 2024 (the “Supplemental Indenture No. 20”), in each case among the Company, the Guarantors, the Trustee and the Agent. This is one of an issue of Notes of the Company issued, or to be issued, under the Indenture. The terms of the 2031 Notes include those stated in the Indenture and the Supplemental Indenture No. 20. The 2031 Notes are subject to all such terms, and Holders of the 2031 Notes are referred to the Indenture and the Supplemental Indenture No. 20 for a statement of them. Capitalized and certain other terms used and not otherwise defined herein have the meanings set forth in the Indenture or the Supplemental Indenture No. 20 (as applicable).
(5) Optional Redemption. At any time and from time to time before the Par Call Date, the Company may redeem the 2031 Notes, in whole or in part, at the Company’s option, upon not less than 10 nor more than 60 days’ prior notice, at a price equal to the greater of:
(1) 100% of the aggregate principal amount of any 2031 Notes being redeemed, and
(2) the sum of the present values of the applicable Remaining Scheduled Payments discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months or, in the case of an incomplete month, the number of days elapsed) at the Treasury Rate, plus 25 basis points,
together with, in each case, accrued and unpaid interest on the principal amount of the 2031 Notes to be redeemed to, but excluding, the Redemption Date.
On or after the Par Call Date of the 2031 Notes, the 2031 Notes will be redeemable in whole at any time or in part, from time to time, at the Company’s option, upon at least 10 days’ but no more than 60 days’ prior notice, at a price equal to 100% of the principal amount of the 2031 Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
The 2031 Notes are also redeemable by the Company, in whole but not in part, at 100% of the principal amount of the 2031 Notes plus any accrued and unpaid interest to the Redemption Date (including any Additional Amounts) at the Company’s option at any time prior to their maturity if, due to a Change in Tax Law: (i) the Company or any Guarantor, in accordance with the Supplemental Indenture No. 20, has, or would, become obligated to pay any Additional Amounts to the Holders of the 2031 Notes; (ii) in the case of any Guarantor, (A) the Parent would be unable, for reasons outside its control, to procure payment by the Company or any other Guarantor or (B) the procuring of such payment by the Company and each such other Guarantor would be subject to withholding taxes imposed by a Relevant Taxing Jurisdiction; and (iii) such obligation cannot otherwise be avoided by such Guarantor, the Parent or the Company, taking reasonable measures available to it.
(6) Redemption Procedures. If the Company elects to redeem less than all of the 2031 Notes at any time, in the case of 2031 Notes issued in definitive form, the 2031 Notes to be redeemed shall be selected in accordance with applicable procedures of the Depositary.
(7) Notice of Redemption. Notices of redemption shall be transmitted at least 10 but not more than 60 days before the Redemption Date to each Holder of 2031 Notes to be redeemed in accordance with Section 10.01 of the Indenture. If the 2031 Notes are to be redeemed in part only, the notice of redemption that relates to such 2031 Notes will state the portion of the principal amount thereof that is to be redeemed. Any redemption may, at the Company’s sole discretion, be subject to the satisfaction of one or more conditions precedent. In the event of a conditional redemption, the notice of conditional redemption shall reflect and specify the conditions to the redemption. Once the notice of redemption is delivered, 2031 Notes called for
redemption shall, subject to the satisfaction of any applicable conditions, become irrevocably due and payable on the Redemption Date.
(8) Denominations, Transfer, Exchange. The 2031 Notes shall be issuable only in fully registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder may transfer or exchange 2031 Notes in accordance with the Indenture.
(9) Persons Deemed Owners. The Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the 2031 Global Notes for all purposes whatsoever.
(10) Unclaimed Money. If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its request or, if such money is then held by the Company in trust, such money shall be released from such trust. After that, Holders of the 2031 Notes entitled to the money must look only to the Company for payment as general creditors unless applicable abandoned property law designates another Person.
(11) Amendment, Supplement, Waiver, Etc. The Company, the Guarantors and the Trustee may modify or amend the Indenture, the 2031 Notes or the Guarantees without the consent of any Holder to, among other things, cure any ambiguity, or to correct or supplement any provision contained in the Indenture, the 2031 Notes or the Guarantees and add to the covenants, or the restrictions, conditions or provisions applicable to, the Company and Guarantors, as the case may be, such further covenants, restrictions, conditions or provisions as the Company and any Guarantor, as the case may be, shall consider to be for the protection of the Holders of the applicable 2031 Notes issued pursuant to the Indenture. Other amendments and modifications of the Indenture or the 2031 Notes may be made by the Company and the Trustee with the consent of the Holders of a majority of the aggregate principal amount of all series of Notes affected by such amendments or modifications (voting as one class), subject to certain exceptions requiring the consent of each of the Holders of the 2031 Notes to be affected.
(12) Defaults and Remedies. Events of Default are set forth in the Indenture. Subject to certain limitations in the Indenture, if an Event of Default with respect to the 2031 Notes (other than an Event of Default specified in Section 5.01 (vii), (viii) or (ix) of the Indenture with respect to the Company or any Guarantor) shall have occurred and be continuing, unless the principal of all the 2031 Notes shall have already become due and payable, the Holders of not less than 25% in aggregate principal amount of the 2031 Notes then outstanding, by notice in writing to the Company, each Guarantor and the Trustee, may declare the entire principal amount of all 2031 Notes and interest accrued and unpaid thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable, without any further declaration or other act on the part of any Holder of the 2031 Notes. If certain Events of Default specified in Section 5.01 (vii), (viii) or (ix) of the Indenture occur with respect to the Company and are continuing, the principal amount of and accrued and unpaid interest on all the 2031 Notes issued pursuant to the Indenture shall become immediately due and payable, without any declaration or other act on the part of the Trustee or any Holder of the 2031 Notes. The
Trustee shall be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the Holders of the 2031 Notes, unless such Holders have offered to the Trustee security or indemnity satisfactory to the Trustee. Except in the case of a Default or Event of Default in payment of the principal of, premium, if any, or interest on any 2031 Note (including payments pursuant to a redemption or repurchase of the 2031 Notes pursuant to the provisions of the Indenture), the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders of the 2031 Notes.
(13) Trustee Dealings with Company. The Trustee in its individual or any other capacity may become the owner or pledgee of 2031 Notes and may make loans to, accept deposits from, perform services for or otherwise deal with the Company or any Affiliate thereof with the same rights it would have if it were not Trustee.
(14) No Recourse Against Others. No director, officer, employee or stockholder of the Company or any of the Guarantors, past, present or future, will have any liability for any of the Company’s or such Guarantor’s obligations under the 2031 Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of 2031 Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the 2031 Notes.
(15) Discharge. The Company’s obligations pursuant to the Indenture will be discharged, except for obligations pursuant to certain sections thereof, subject to the terms of the Indenture, upon the payment or cancellation of all the 2031 Notes or upon the irrevocable deposit with the Trustee of United States dollars or U.S. Government Obligations sufficient to pay when due principal of and interest on the 2031 Notes at maturity or redemption, as the case may be.
(16) Guarantees. The Company’s obligations under the 2031 Notes are jointly and severally, fully and unconditionally guaranteed, to the extent set forth in the Indenture, by each of the Guarantors.
(17) Authentication. This 2031 Note shall not be valid until the Authentication Agent manually signs the certificate of authentication on this 2031 Note.
(18) Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR TO SUCH STATUTE) WILL GOVERN AND BE USED TO CONSTRUE THIS 2031 NOTE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(19) Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Holder of the 2031 Notes upon written request and without charge a copy of the Indenture. Requests may be made to:
B.A.T Capital Corporation
c/o British American Tobacco p.l.c.
Globe House
4 Temple Place
London WC2R 2PG
United Kingdom
Facsimile: +44 (0)20 7845 0555
Attention: Company Secretary
With a copy (which shall not constitute notice) to:
Cravath, Swaine & Moore LLP
CityPoint, 1 Ropemaker St.
London EC2Y 9HR
United Kingdom
Facsimile: +44 20 7860 1150
Attention: Alyssa K. Caples
ASSIGNMENT
I or we assign and transfer this 2031 Note to:
| | |
(Insert assignee’s social security or tax I.D. number) |
|
(Print or type name, address and zip code of assignee) |
and irrevocably appoint:
as Transfer Agent to transfer this 2031 Note on the books of the Company. The Transfer Agent may substitute another to act for him.
| | | | | | | | | | | | | | | | | |
| Date: | | | Your Signature: | |
| | | | | (Sign exactly as your name appears on the face of this Note) |
| | | | | |
| Signature Guarantee: | | | | |
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
| | | | | | | | | | | | | | |
| | | | |
Date of
Exchange | Amount of
decrease in
Principal
Amount of this
Global Note | Amount of
increase in
Principal
Amount of this
Global Note | Principal
Amount of this
Global Note
following such
decrease or
increase | Signature of authorized signatory of Trustee or Notes Custodian |
| | | | |
SUPPLEMENTAL INDENTURE NO. 21 (this “Supplemental Indenture”), dated as of February 20, 2024 among B.A.T Capital Corporation, a corporation incorporated in the state of Delaware (the “Company”), as issuer, British American Tobacco p.l.c., a public limited company incorporated under the laws of England and Wales (the “Parent”), B.A.T. International Finance p.l.c., a public limited company incorporated under the laws of England and Wales (“BATIF”), B.A.T. Netherlands Finance B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands (“BATNF”), and, until its guarantee is released in accordance with the Base Indenture (if ever), Reynolds American Inc., a North Carolina corporation (“RAI”), as guarantors (the “Guarantors”) and Citibank, N.A., as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture dated as of September 6, 2019 (the “Base Indenture”), providing for the issuance from time to time of an unlimited aggregate principal amount of guaranteed debt securities;
WHEREAS, Section 7.01(g) of the Base Indenture provides that without the consent of any Holder, the Company, the Guarantors and the Trustee may amend or supplement the Base Indenture in order to, among other things, issue an unlimited aggregate principal amount of notes under the Base Indenture;
WHEREAS, pursuant to Section 7.01(g) of the Base Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture;
WHEREAS, the Company and the Guarantors have taken all necessary corporate action to authorize the execution and delivery of this Supplemental Indenture;
WHEREAS, as contemplated by Section 2.01 of the Base Indenture, the Company intends to issue, and the Guarantors intend to guarantee, a new series of guaranteed debt securities to be known as the Company’s “6.000% Notes due 2034” under the Base Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders of the 2034 Notes (as defined below) as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.
Except as otherwise expressly provided in this Supplemental Indenture, all terms used in this Supplemental Indenture which are defined in the Base Indenture shall have the meanings ascribed to them by the Base Indenture.
SECTION 1.02. Effect of Headings.
The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 1.03. Separability Clause.
In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.04. Benefits of Instrument.
Nothing in this Supplemental Indenture expressed, and nothing that may be implied from any of the provisions hereof, is intended, or shall be construed, to confer upon, or to give to, any Person other than the parties hereto and their successors and the Holders of the 2034 Notes any benefit or any right, remedy or claim under, or by reason of, this Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements contained in this Supplemental Indenture shall be for the sole and exclusive benefit of the parties hereto and their successors and of the Holders of the 2034 Notes.
ARTICLE II
6.000% Notes due 2034
SECTION 2.01. Creation of Series.
There is hereby established a new series of Notes under the Base Indenture entitled “6.000% Notes due 2034” (the “2034 Notes”). The form of the 2034 Notes, including the form of the certificate of authentication, is attached hereto as Exhibit A.
The Company shall issue the 2034 Notes in an aggregate principal amount of $850,000,000. The Company may from time to time, without the consent of the Holders of the 2034 Notes, “reopen” the series of 2034 Notes and create and issue additional Notes having substantially identical terms and conditions as the 2034 Notes (or in all respects except as to issue price and the date from which interest, if any, shall accrue, and except as may otherwise be provided in or pursuant to such Officer’s Certificate or supplemental indenture relating thereto) so that the additional Notes are consolidated and form a single series with the outstanding 2034 Notes.
The 2034 Notes initially shall be represented by one or more 2034 Notes of the same series in registered, global form without interest coupons. The global notes representing the 2034 Notes (collectively, the “2034 Global Notes”) initially shall be (i) registered in the name of the Depository Trust Company (the “Depositary”) or the nominee of such Depositary, in each case
for credit to an account of a member of, or direct or indirect participant in, the Depositary; and (ii) delivered to Citibank, N.A. as custodian for such Depositary.
(a) The maturity date of the principal of the 2034 Notes shall be February 20, 2034 (the “Maturity Date”).
(b) The outstanding principal amount of the 2034 Notes shall accrue interest at a rate equal to 6.000% per annum, as provided in Section 2.03.
(c) Unless supplemented or superseded in this Supplemental Indenture, the terms of the 2034 Notes, including any Events of Default and covenants of the Company and the Guarantors are consistent with the Base Indenture and set forth therein.
SECTION 2.02. Guarantee.
Subject to the terms and applicable limitations set forth in the Base Indenture and the form of 2034 Notes, each Guarantor, hereby jointly and severally, fully, unconditionally and irrevocably guarantees the 2034 Notes and obligations of the Company hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Authentication Agent, and to the Trustee on behalf of such Holder, that (i) the principal of (and premium, if any) and interest on the 2034 Notes will be paid in full when due, whether at the Maturity Date, by acceleration or otherwise (including, without limitation, the amount that would become due but for the operation of any automatic stay provision of any Bankruptcy Law), together with interest on the overdue principal, if any, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any 2034 Notes or of any such other obligations, the same will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at the Maturity Date, by acceleration or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 9.03 of the Base Indenture.
SECTION 2.03. Interest.
The 2034 Notes shall bear interest at a rate equal to 6.000% per annum. The 2034 Notes will bear interest from the date of the initial issuance of such 2034 Notes or from the most recent interest payment date to which interest has been paid or provided for, payable semi-annually in arrear on August 20 and February 20 of each year (each, an “Interest Payment Date”), commencing on August 20, 2024, until the Maturity Date, unless previously purchased and cancelled or redeemed by the Company, to the person in whose name any Note is registered at the close of business on the 15th calendar day preceding each Interest Payment Date, whether or not such day is a Business Day (each, a “Record Date”) notwithstanding any transfer or exchange of such 2034 Notes subsequent to the Record Date and prior to such Interest Payment Date, except that, if and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date, and the applicable grace period shall have expired, such defaulted interest may at the option of the Company be paid to the persons in whose names the outstanding 2034 Notes are registered at the close of business on a subsequent Record Date (which shall not be less than five Business Days prior to the date of payment of such defaulted
interest) established by notice sent by or on behalf of the Company to the Holders (which term means registered holders) of the 2034 Notes, not less than 15 days preceding such subsequent Record Date. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months, or in the case of an incomplete month, the number of days elapsed. If the date on which any interest payment or principal payment is to be made is not a Business Day, such payment will be made on the next day which is a Business Day, without any further interest or other amounts being paid or payable in connection therewith.
SECTION 2.04. Place of Payment.
The place or places where the principal of, and premium, if any, and interest, if any, and Additional Amounts, if any, on the 2034 Notes shall be payable, the place or places where any 2034 Notes may be surrendered for registration, transfer or exchange and the place or places where notices and demands to or upon the Company in respect of the 2034 Notes may be served are as set forth in the Base Indenture.
SECTION 2.05. Optional Redemption.
The Company may redeem the 2034 Notes, in whole or in part, at the Company’s option, at any time and from time to time before the Par Call Date (as defined below), at a redemption price equal to the greater of (x) 100% of the principal amount of the 2034 Notes to be redeemed and (y) the sum of the present values of the applicable Remaining Scheduled Payments (as defined below) discounted to the date of redemption (the “Redemption Date”) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months or, in the case of an incomplete month, the number of days elapsed) at the Treasury Rate (as defined below) plus 30 basis points, together with accrued and unpaid interest on the principal amount of the 2034 Notes to be redeemed to, but excluding, the Redemption Date.
If the Company elects to redeem the 2034 Notes on or after the Par Call Date, the Company will pay an amount equal to 100% of the principal amount of the 2034 Notes redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
In connection with such optional redemption the following defined terms apply:
•Par Call Date means November 20, 2033 (three months prior to the Maturity Date of the 2034 Notes).
•Remaining Scheduled Payments means, with respect to each 2034 Note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due from and including the related Redemption Date, but for such redemption, to but excluding the Par Call Date; provided, however, that if that Redemption Date is not an Interest Payment Date with respect to such 2034 Notes, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to, but excluding, that Redemption Date.
•Treasury Rate means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
1.The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
2.If on the third Business Day preceding the Redemption Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call
Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be given in accordance with the Base Indenture at least 10 days but not more than 60 days before the Redemption Date to each Holder of the 2034 Notes to be redeemed. Any redemption may, at the Company’s sole discretion, be subject to the satisfaction of one or more conditions precedent. In the event of a conditional redemption, the notice of conditional redemption shall reflect and specify the conditions to the redemption. Once the notice of redemption is delivered, Notes called for redemption shall, subject to the satisfaction of any applicable conditions, become irrevocably due and payable on the Redemption Date.
If less than all the 2034 Notes are to be redeemed pursuant to this Section 2.05, in the case of a redemption at the Company’s option, the 2034 Notes to be redeemed shall be selected in accordance with applicable procedures of the Depositary.
The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error, and the Trustee and any agent shall be entitled to rely on such calculation.
SECTION 2.06. Redemption for Tax Reasons.
The ability of the Company to redeem the 2034 Notes due to a Change in Tax Law is as set forth in the Base Indenture.
SECTION 2.07. Additional Amounts.
Except as set forth below, the applicability of payments of Additional Amounts under the 2034 Notes is as set forth in the Base Indenture. The Company is not required to pay Additional Amounts, except to the extent described in Section 4.08 of the Base Indenture.
In addition to the exceptions and limitations described in the Base Indenture, no Guarantor shall be required to pay any Additional Amounts for or on account of any taxes imposed or to be withheld pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021).
ARTICLE III
Miscellaneous Provisions
SECTION 3.01. Effectiveness. This Supplemental Indenture will become effective upon its execution and delivery.
SECTION 3.02. Original Issue. The 2034 Notes may, upon execution of this Supplemental Indenture, be executed by the Company and delivered by the Company to the Trustee, as Authentication Agent, for authentication, and the Authentication Agent shall, upon Company order, authenticate and deliver such 2034 Notes as in such Company order provided.
SECTION 3.03. Ratification and Integral Part. The Base Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture will be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided.
SECTION 3.04. Priority. This Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. The provisions of this Supplemental Indenture shall, subject to the terms hereof, supersede the provisions of the Base Indenture with respect to the 2034 Notes to the extent the Base Indenture is inconsistent herewith.
SECTION 3.05. Successors and Assigns. All covenants and agreements in the Base Indenture, as supplemented and amended by this Supplemental Indenture, by the Company and the Guarantors will bind their respective successors and assigns, whether so expressed or not.
SECTION 3.06. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR TO SUCH STATUTE) WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 3.07. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. Any electronic signature hereof shall be of the same legal effect, validity or enforceability as a manually executed signature, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signature and Records Act or any other similar state laws based on the Uniform Electronic Transactions Act. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication sent to the Trustee hereunder must be in
the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature provider as specified in writing to the Trustee by the Company)), in English. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the Trustee including, without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
SECTION 3.08. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and the Guarantors.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| | | | | | | | | | | |
| B.A.T CAPITAL CORPORATION |
| | | |
| by: | /s/ Steven Coppock |
| | Name: | Steven Coppock |
| | Title: | Treasurer |
| | | |
| BRITISH AMERICAN TOBACCO P.L.C. |
| | | |
| by: | /s/ Tadeu Marroco |
| | Name: | Tadeu Marroco |
| | Title: | Chief Executive |
| | | |
| B.A.T. INTERNATIONAL FINANCE P.L.C. |
| | | |
| by: | /s/ Neil Wadey |
| | Name: | Neil Wadey |
| | Title: | Director |
| | | |
| B.A.T. NETHERLANDS FINANCE B.V. |
| | | |
| by: | /s/ Hendrik Lina |
| | Name: | Hendrik Lina |
| | Title: | Director |
| | | |
| by: | /s/ Judith Bollen |
| | Name: | Judith Bollen |
| | Title: | Director |
| | | |
| REYNOLDS AMERICAN INC. |
| | | |
| by: | /s/ Anthony B. Petitt |
| | Name: | Anthony B. Petitt |
| | Title: | Treasurer |
| | | |
| CITIBANK, N.A.,
as Trustee |
| | | |
| by: | /s/ Peter Lopez |
| | Name: | Peter Lopez |
| | Title: | Senior Trust Officer |
[Signature Page to Supplemental Indenture No. 21]
[Signature Page to Supplemental Indenture No. 21]
CUSIP No. [●]
B.A.T CAPITAL CORPORATION
6.000% NOTE DUE 2034
B.A.T Capital Corporation, a corporation incorporated in the state of Delaware (the “Company”), for value received, promises to pay to CEDE & CO. or registered assigns the principal sum of $[●], on February 20, 2034.
Interest Payment Dates: August 20 and February 20, commencing on August 20, 2024.
Record Dates: at the close of business on the 15th calendar day that precedes the related Interest Payment Date, whether or not such day is a Business Day.
Reference is made to the further provisions of this 2034 Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this 2034 Note to be signed manually or by facsimile by one of its duly authorized officers.
| | | | | |
| B.A.T CAPITAL CORPORATION |
| |
| |
| By: | |
| Name: |
| Title: |
Certificate of Authentication
This is one of the 6.000% Notes due 2034 referred to in the within-mentioned Supplemental Indenture No. 21.
| | | | | | | | |
| CITIBANK, N.A., as Authentication Agent |
| | |
| By: | |
| | Authorized Signatory |
| | |
| | |
| Dated: | | |
B.A.T CAPITAL CORPORATION
6.000% NOTE DUE 2034
(1) Interest. B.A.T Capital Corporation, a corporation incorporated in the state of Delaware, as issuer (the “Company”), promises to pay, until the principal hereof is paid or made available for payment, interest on the principal amount set forth on the face hereof at a rate of 6.000% per annum. Interest on the 6.000% Notes due 2034 (the “2034 Notes”) will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from and including February 20, 2024, to but excluding the date on which interest is paid. Interest shall be payable in arrear on each August 20 and February 20, commencing on August 20, 2024. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months or, in the case of an incomplete month, the number of days elapsed. The Company shall pay interest on overdue principal (to the full extent permitted by law) at the rate borne by the 2034 Notes.
(2) Method of Payment. The Company will pay interest to those persons in whose name a 2034 Note is registered on the 2034 Note register at the close of business on the 15th calendar day that precedes each Interest Payment Date, whether or not such day is a Business Day. Interest on the 2034 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. If the date on which any interest payment or principal payment is to be made is not a Business Day, such payment will be made on the next day which is a Business Day, without any further interest or other amounts being paid or payable in connection therewith.
(3) Paying Agent, Transfer Agent and Registrar. Initially, Citibank, N.A. (the “Agent”) will act as a Paying Agent, Transfer Agent and Registrar. The Company may change any Paying Agent, Transfer Agent or Registrar without notice to the Holders of the 2034 Notes. The Company or any of its subsidiaries may act as Paying Agent, Transfer Agent or Registrar.
(4) Indenture. The Company issued the 2034 Notes under an indenture dated as of September 6, 2019 (the “Indenture”) and a supplemental indenture dated as of February 20, 2024 (the “Supplemental Indenture No. 21”), in each case among the Company, the Guarantors, the Trustee and the Agent. This is one of an issue of Notes of the Company issued, or to be issued, under the Indenture. The terms of the 2034 Notes include those stated in the Indenture and the Supplemental Indenture No. 21. The 2034 Notes are subject to all such terms, and Holders of the 2034 Notes are referred to the Indenture and the Supplemental Indenture No. 21 for a statement of them. Capitalized and certain other terms used and not otherwise defined herein have the meanings set forth in the Indenture or the Supplemental Indenture No. 21 (as applicable).
(5) Optional Redemption. At any time and from time to time before the Par Call Date, the Company may redeem the 2034 Notes, in whole or in part, at the Company’s option, upon not less than 10 nor more than 60 days’ prior notice, at a price equal to the greater of:
(1) 100% of the aggregate principal amount of any 2034 Notes being redeemed, and
(2) the sum of the present values of the applicable Remaining Scheduled Payments discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months or, in the case of an incomplete month, the number of days elapsed) at the Treasury Rate, plus 30 basis points,
together with, in each case, accrued and unpaid interest on the principal amount of the 2034 Notes to be redeemed to, but excluding, the Redemption Date.
On or after the Par Call Date of the 2034 Notes, the 2034 Notes will be redeemable in whole at any time or in part, from time to time, at the Company’s option, upon at least 10 days’ but no more than 60 days’ prior notice, at a price equal to 100% of the principal amount of the 2034 Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
The 2034 Notes are also redeemable by the Company, in whole but not in part, at 100% of the principal amount of the 2034 Notes plus any accrued and unpaid interest to the Redemption Date (including any Additional Amounts) at the Company’s option at any time prior to their maturity if, due to a Change in Tax Law: (i) the Company or any Guarantor, in accordance with the Supplemental Indenture No. 21, has, or would, become obligated to pay any Additional Amounts to the Holders of the 2034 Notes; (ii) in the case of any Guarantor, (A) the Parent would be unable, for reasons outside its control, to procure payment by the Company or any other Guarantor or (B) the procuring of such payment by the Company and each such other Guarantor would be subject to withholding taxes imposed by a Relevant Taxing Jurisdiction; and (iii) such obligation cannot otherwise be avoided by such Guarantor, the Parent or the Company, taking reasonable measures available to it.
(6) Redemption Procedures. If the Company elects to redeem less than all of the 2034 Notes at any time, in the case of 2034 Notes issued in definitive form, the 2034 Notes to be redeemed shall be selected in accordance with applicable procedures of the Depositary.
(7) Notice of Redemption. Notices of redemption shall be transmitted at least 10 but not more than 60 days before the Redemption Date to each Holder of 2034 Notes to be redeemed in accordance with Section 10.01 of the Indenture. If the 2034 Notes are to be redeemed in part only, the notice of redemption that relates to such 2034 Notes will state the portion of the principal amount thereof that is to be redeemed. Any redemption may, at the Company’s sole discretion, be subject to the satisfaction of one or more conditions precedent. In the event of a conditional redemption, the notice of conditional redemption shall reflect and specify the conditions to the redemption. Once the notice of redemption is delivered, 2034 Notes called for redemption shall, subject to the satisfaction of any applicable conditions, become irrevocably due and payable on the Redemption Date.
(8) Denominations, Transfer, Exchange. The 2034 Notes shall be issuable only in fully registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder may transfer or exchange 2034 Notes in accordance with the Indenture.
(9) Persons Deemed Owners. The Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the 2034 Global Notes for all purposes whatsoever.
(10) Unclaimed Money. If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its request or, if such money is then held by the Company in trust, such money shall be released from such trust. After that, Holders of the 2034 Notes entitled to the money must look only to the Company for payment as general creditors unless applicable abandoned property law designates another Person.
(11) Amendment, Supplement, Waiver, Etc. The Company, the Guarantors and the Trustee may modify or amend the Indenture, the 2034 Notes or the Guarantees without the consent of any Holder to, among other things, cure any ambiguity, or to correct or supplement any provision contained in the Indenture, the 2034 Notes or the Guarantees and add to the covenants, or the restrictions, conditions or provisions applicable to, the Company and Guarantors, as the case may be, such further covenants, restrictions, conditions or provisions as the Company and any Guarantor, as the case may be, shall consider to be for the protection of the Holders of the applicable 2034 Notes issued pursuant to the Indenture. Other amendments and modifications of the Indenture or the 2034 Notes may be made by the Company and the Trustee with the consent of the Holders of a majority of the aggregate principal amount of all series of Notes affected by such amendments or modifications (voting as one class), subject to certain exceptions requiring the consent of each of the Holders of the 2034 Notes to be affected.
(12) Defaults and Remedies. Events of Default are set forth in the Indenture. Subject to certain limitations in the Indenture, if an Event of Default with respect to the 2034 Notes (other than an Event of Default specified in Section 5.01 (vii), (viii) or (ix) of the Indenture with respect to the Company or any Guarantor) shall have occurred and be continuing, unless the principal of all the 2034 Notes shall have already become due and payable, the Holders of not less than 25% in aggregate principal amount of the 2034 Notes then outstanding, by notice in writing to the Company, each Guarantor and the Trustee, may declare the entire principal amount of all 2034 Notes and interest accrued and unpaid thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable, without any further declaration or other act on the part of any Holder of the 2034 Notes. If certain Events of Default specified in Section 5.01 (vii), (viii) or (ix) of the Indenture occur with respect to the Company and are continuing, the principal amount of and accrued and unpaid interest on all the 2034 Notes issued pursuant to the Indenture shall become immediately due and payable, without any declaration or other act on the part of the Trustee or any Holder of the 2034 Notes. The Trustee shall be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the Holders of the 2034 Notes, unless such Holders have offered to the Trustee security or indemnity satisfactory to the Trustee. Except in the case of a Default or Event of Default in payment of the principal of, premium, if any, or interest on any 2034 Note (including payments pursuant to a redemption or repurchase of the 2034 Notes pursuant to the provisions of the Indenture), the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders of the 2034 Notes.
(13) Trustee Dealings with Company. The Trustee in its individual or any other capacity may become the owner or pledgee of 2034 Notes and may make loans to, accept deposits from, perform services for or otherwise deal with the Company or any Affiliate thereof with the same rights it would have if it were not Trustee.
(14) No Recourse Against Others. No director, officer, employee or stockholder of the Company or any of the Guarantors, past, present or future, will have any liability for any of the Company’s or such Guarantor’s obligations under the 2034 Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of 2034 Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the 2034 Notes.
(15) Discharge. The Company’s obligations pursuant to the Indenture will be discharged, except for obligations pursuant to certain sections thereof, subject to the terms of the Indenture, upon the payment or cancellation of all the 2034 Notes or upon the irrevocable deposit with the Trustee of United States dollars or U.S. Government Obligations sufficient to pay when due principal of and interest on the 2034 Notes at maturity or redemption, as the case may be.
(16) Guarantees. The Company’s obligations under the 2034 Notes are jointly and severally, fully and unconditionally guaranteed, to the extent set forth in the Indenture, by each of the Guarantors.
(17) Authentication. This 2034 Note shall not be valid until the Authentication Agent manually signs the certificate of authentication on this 2034 Note.
(18) Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR TO SUCH STATUTE) WILL GOVERN AND BE USED TO CONSTRUE THIS 2034 NOTE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(19) Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Holder of the 2034 Notes upon written request and without charge a copy of the Indenture. Requests may be made to:
B.A.T Capital Corporation
c/o British American Tobacco p.l.c.
Globe House
4 Temple Place
London WC2R 2PG
United Kingdom
Facsimile: +44 (0)20 7845 0555
Attention: Company Secretary
With a copy (which shall not constitute notice) to:
Cravath, Swaine & Moore LLP
CityPoint, 1 Ropemaker St.
London EC2Y 9HR
United Kingdom
Facsimile: +44 20 7860 1150
Attention: Alyssa K. Caples
ASSIGNMENT
I or we assign and transfer this 2034 Note to:
(Insert assignee’s social security or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
as Transfer Agent to transfer this 2034 Note on the books of the Company. The Transfer Agent may substitute another to act for him.
| | | | | | | | | | | | | | | | | |
| Date: | | | Your Signature: | |
| | | | | (Sign exactly as your name appears on the face of this Note) |
| | | | | |
| Signature Guarantee: | | | | |
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
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| Date of Exchange | Amount of decrease in Principal Amount of this Global Note | Amount of increase in Principal Amount of this Global Note | Principal Amount of this Global Note following such decrease or increase | Signature of authorized signatory of Trustee or Notes Custodian |
February 20, 2024
B.A.T Capital Corporation
$850,000,000 5.834% Notes due 2031
$850,000,000 6.000% Notes due 2034
Ladies and Gentlemen:
We have acted as U.S. counsel for B.A.T Capital Corporation, a Delaware corporation (“BATCAP” or the “Issuer”) and each of the guarantors listed on Annex A to this opinion (the “Guarantors”), in connection with (i) the filing by the Issuer and the Guarantors with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form F‑3 (Registration No. 333-265958), filed with the Commission on July 1, 2022 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), relating to the registration under the Act and the proposed issuance and sale from time to time pursuant to Rule 415 under the Act of an undetermined principal amount of debt securities of the Issuer in one or more series and the guarantees of such debt securities by the Guarantors (the “Guarantees”) and (ii) the preparation and filing by the Issuer and the Guarantors of a prospectus supplement, dated February 15, 2024 (the “Prospectus Supplement”), with the Commission relating to: the issuance and sale by BATCAP of $850,000,000 aggregate principal amount of 5.834% Notes due 2031 (the “2031 Notes”) and $850,000,000 aggregate principal amount of 6.000% Notes due 2034 (the “2034 Notes” and, together with the 2031 Notes, the “Notes”), to be issued pursuant to the indenture, dated as of September 6, 2019, by and among BATCAP as issuer, the Guarantors and Citibank, N.A. as trustee, authentication agent, initial paying agent, registrar, transfer agent and calculation agent (the “Trustee”) (the “Indenture”), as supplemented by: (i) the supplemental indenture no. 1 dated as of September 6, 2019, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 1”); (ii) the supplemental indenture no. 2 dated as of September 6, 2019, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 2”); (iii) the supplemental indenture no. 3 dated as of September 6, 2019, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 3”); (iv) the supplemental indenture no. 4 dated as of September 6, 2019, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 4”); (v) the supplemental indenture no. 5 dated as of April 2, 2020, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 5”); (vi) the supplemental indenture no. 6 dated as of April 2, 2020, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 6”); (vii) the supplemental indenture no. 7 dated as of April 2, 2020, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 7”); (viii) the supplemental indenture no. 8 dated as of September 25, 2020, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 8”); (ix) the supplemental indenture no. 9 dated as of September 25, 2020, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 9”); (x) the supplemental indenture no. 10 dated as of September 25, 2020, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 10”); (xi) the supplemental indenture no. 11 dated as of September 25, 2020, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 11”); (xii) the supplemental indenture no. 12 dated as of March 16, 2022, among BATCAP, the Guarantors and the Trustee
(the “Supplemental Indenture No. 12”); (xiii) the supplemental indenture no. 13 dated as of March 16, 2022, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 13”); the supplemental indenture no. 14 dated as of March 24, 2022, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 14”); (xv) the supplemental indenture no. 15 dated as of October 19, 2022, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 15”); (xvi) the supplemental indenture no. 16 dated as of August 2, 2023, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 16”); (xvii) the supplemental indenture no. 17 dated as of August 2, 2023, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 17”); (xviii) the supplemental indenture no. 18 dated as of August 2, 2023, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 18”); (xix) the supplemental indenture no. 19 dated as of August 2, 2023, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 19”); (xx) the supplemental indenture no. 20 dated as of February 20, 2024, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 20”); and (xxi) the supplemental indenture no. 21 dated as of February 20, 2024, among BATCAP, the Guarantors and the Trustee (the “Supplemental Indenture No. 21” and, together with the Supplemental Indenture No. 1, the Supplemental Indenture No. 2, the Supplemental Indenture No. 3, the Supplemental Indenture No. 4, the Supplemental Indenture No. 5, the Supplemental Indenture No. 6, the Supplemental Indenture No. 7, the Supplemental Indenture No. 8, the Supplemental Indenture No. 9, the Supplemental Indenture No. 10, the Supplemental Indenture No. 11, the Supplemental Indenture No. 12, the Supplemental Indenture No. 13, the Supplemental Indenture No. 14, the Supplemental Indenture No. 15, the Supplemental Indenture No. 16, the Supplemental Indenture No. 17, the Supplemental Indenture No. 18, the Supplemental Indenture No. 19 and the Supplemental Indenture No. 20, the “Supplemental Indentures”), in accordance with the underwriting agreement dated as of February 15, 2024, among BATCAP as issuer, the Guarantors as guarantors, and Barclays Capital Inc., HSBC Securities (USA) Inc., Mizuho Securities USA LLC, Santander US Capital Markets LLC and Wells Fargo Securities, LLC as representatives of the several underwriters listed on Schedule I thereto (the “Underwriters”) (the “Underwriting Agreement”).
In that connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary or appropriate for the purposes of this opinion, including, without limitation: (a) the Amended and Restated Certificate of Incorporation of BATCAP, as adopted on September 8, 2008; (b) the Amended and Restated By-laws of BATCAP, as adopted on July 27, 2007; (c) resolutions adopted by Board of Directors of BATCAP on June 20, 2019 and June 29, 2022; (d) the Registration Statement; (e) the Indenture; (f) the Supplemental Indentures; and (g) the forms of the Notes. We have relied, with respect to certain factual matters, on representations and warranties of directors and officers of the Issuer and the Guarantors.
We do not purport to express an opinion on or address all matters of U.S. law that may be of relevance with respect to the proposed issuance and sale of the Notes. This letter is strictly limited to the matters presented in it and does not extend, by implication or otherwise, to any matters not referenced herein.
Based upon and subject to the foregoing, we are of opinion that:
1.When the Notes have been duly authenticated by the Trustee in accordance with the provisions of the Indenture and the respective Supplemental Indenture and upon payment of the consideration therefor provided for in the Underwriting Agreement, such Notes will be validly issued and constitute valid and binding obligations of BATCAP, enforceable against BATCAP in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law).
2.When the Notes underlying the Guarantees of the Notes have been duly authenticated by the Trustee in accordance with the provisions of the Indenture and the respective Supplemental Indenture and upon payment of the consideration therefor provided for in the Underwriting Agreement, each Guarantee of the Notes will constitute the valid and binding obligation of the Guarantors, enforceable against the Guarantors, in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law).
We are admitted to practice in the State of New York, and we express no opinion as to matters governed by any laws other than the laws of the State of New York and the General Corporation Law of the State of Delaware. In particular, we do not purport to pass on any matter governed by the laws of England and Wales, the Netherlands or the State of North Carolina.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to British American Tobacco p.l.c.’s current report on Form 6-K filed on February 20, 2024 and to the incorporation by reference of this opinion into the Registration Statement. We also consent to the reference to our firm under the caption “Legal Matters” in the prospectus constituting a part of the Registration Statement and the Prospectus Supplement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Cravath, Swaine & Moore LLP
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British American Tobacco p.l.c. |
| Globe House |
| | 4 Temple Place |
| | | London WC2R 2PG |
| | | | United Kingdom |
| | | | | | | | | | | | | | | | | |
| B.A.T Capital Corporation |
| 103 Foulk Road, Suite 120 |
| | Wilmington, Delaware 19803 |
| | | United States |
O
ANNEX A
Guarantors
British American Tobacco p.l.c., a public limited company organized under the laws of England and Wales
B.A.T. International Finance p.l.c., a public limited company organized under the laws of England and Wales
B.A.T. Netherlands Finance B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) organized under the laws of The Netherlands
Reynolds American Inc., a North Carolina corporation
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| Linklaters LLP One Silk Street London EC2Y 8HQ Telephone (+44) 20 7456 2000 Facsimile (+44) 20 7456 2222 DX Box Number 10 CDE |
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To: | British American Tobacco p.l.c. | |
| Globe House | |
| 4 Temple Place | |
| London WC2R 2PG | |
| | | |
| | | 20 February 2024 |
| | | |
Our Ref | | L-345820 | |
U.S.$850,000,000 5.834 per cent. Notes due 2031 (the “2031 Notes”) and U.S.$850,000,000 6.000 per cent. Notes due 2034 (the “2034 Notes” and, together with the 2031 Notes, the “Notes”) of B.A.T Capital Corporation (“BATCAP” or the “Issuer”) and guaranteed by B.A.T. International Finance p.l.c. (“BATIF”), British American Tobacco p.l.c. (“British American Tobacco”), Reynolds American Inc. (“RAI”) and B.A.T. Netherlands Finance B.V. (“BATNF” and, together with British American Tobacco, BATIF and RAI, the “Guarantors”) issued pursuant to the registration statement of British American Tobacco, BATCAP and BATIF on Form F-3 filed with the U.S. Securities and Exchange Commission (the “SEC”) on 1 July 2022 (the “Registration Statement”)
1 We have acted as English legal advisers to the Issuer and the Guarantors in connection with the issue of the Notes and the giving of the guarantees (the “Guarantees”) by the Guarantors in respect of the Notes and have taken instructions solely from the Issuer and the Guarantors.
2 This opinion is limited to English law as applied by the English courts and in effect on the date of this opinion. It is given on the basis that it, and all matters relating to it, will be governed by, and that it (including all terms used in it) will be construed in accordance with, English law. In particular, we express no opinion herein with regard to any system of law (including, for the avoidance of doubt, the federal laws of the United States of America and the laws of the State of New York) other than the laws of England as currently applied by the English courts.
3 For the purpose of this opinion we have examined the documents listed and, where appropriate, defined in the Schedule to this opinion.
4 We have assumed that:
4.1 all copy documents conform to the originals and all originals are genuine and complete
4.2 each signature is the genuine signature of the individual concerned
4.3 (except in the case of BATIF and British American Tobacco) all relevant documents are within the capacity and powers of, and have been validly authorised by, each party
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4.4 (in the case of each party) those documents have been or (in the case of the Notes and the Guarantees) will be validly executed and delivered by the relevant party
4.5 each of the meetings of the Board of Directors of British American Tobacco held on 3 June 2019, 29 July 2020 and 24 May 2022 and the meetings of the Board of Directors of BATIF held on 17 June 2019, 18 September 2020 and 29 June 2022, respectively, (in respect of which a certified extract of each of the Minutes has been supplied to us) was duly convened, constituted and quorate and the resolutions referred to in each of the Minutes were validly passed and remain in full force and effect without modification and
4.6 each of the documents which are the subject of this opinion is valid and binding on each party under the law to which it is expressed to be subject where that is not English law and that words and phrases used in those documents have the same meaning and effect as they would if those documents were governed by English law.
5 References in this opinion to:
5.1 the “Programme Documents” are to the Underwriting Agreement and the Indentures.
6 Based on the documents referred to, and assumptions made, in paragraphs 3 and 4 above and subject to the qualifications in paragraph 7 below and to any matters not disclosed to us, we are of the following opinion:
6.1 BATIF has been incorporated and is existing as a company with limited liability under the laws of England.
6.2 BATIF has corporate power to enter into and to perform its obligations under the Programme Documents and has taken all necessary corporate action to authorise its execution, delivery and performance of the Programme Documents.
6.3 British American Tobacco has been incorporated and is existing as a company with limited liability under the laws of England.
6.4 British American Tobacco has corporate power to enter into and to perform its obligations under the Programme Documents and has taken all necessary corporate action to authorise its execution, delivery and performance of the Programme Documents.
7 This opinion is subject to the following:
7.1 It should be understood that we have not been responsible for investigating or verifying the accuracy of the facts, including statements of foreign law, or the reasonableness of any statements of opinion, contained in the Registration Statement or the Prospectus Supplement, or that no material facts have been omitted from them.
7.2 We express no opinion as to compliance or otherwise with any financial limitations on borrowings or the giving of guarantees by BATIF contained in BATIF’s Articles of Association or any financial limitations on borrowings or the giving of guarantees by British American Tobacco contained in British American Tobacco’s Articles of Association.
7.3 We express no opinion as to compliance or otherwise with the limitation on the maximum aggregate principal amount of the debt securities which have been authorised by the Issuer with respect to the Registration Statement.
7.4 To the extent it relates to United Kingdom stamp duties any undertaking or indemnity may be void under Section 117 of the Stamp Act 1891.
7.5 Any amount referred to in provisions of the Notes or any Programme Document which provide for the payment by a person of additional interest or amounts upon a breach, default or similar occurrence by that person, may not be recoverable if it amounts to a penalty under English law.
7.6 An English court may refuse to give effect to any contractual provision concerning payment of the costs of enforcement or litigation brought before an English court.
7.7 A certificate, determination, notification, minute or opinion might be held by the English courts not to be conclusive if it could be shown to have an unreasonable or arbitrary basis or in the event of manifest error despite any provision in any document to the contrary.
7.8 Any contractual provision that purports to maintain the validity of the remainder of such contract despite the invalidity, illegality or unenforceability of one or more of its provisions may not be effective - it depends on the nature of the illegality, invalidity or unenforceability in question.
7.9 Any contractual provision that requires a variation to be made in writing or to comply with any other formality may not be enforceable.
7.10 An English court may, or may be required to, stay proceedings or decline jurisdiction in certain circumstances - for example, if proceedings are brought elsewhere.
7.11 We express no opinion as to the effect of any sanctions or other similar restrictive measures in relation to any party to the Programme Documents or the Notes or any transaction contemplated thereby.
7.12 Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of a contract have to be or have been performed, in so far as those provisions render the performance of the contract unlawful. In such circumstances, the relevant obligations may not be enforceable.
7.13 The English courts may have regard to the law of the country in which performance takes place in relation to the manner of performance and the steps to be taken in the event of defective performance.
7.14 The English courts may not be restricted from applying overriding provisions of English law and if there is a provision of New York law that is manifestly incompatible with English public policy, it is possible that the English courts may not apply it.
8 This opinion is given on the basis that there will be no amendment to or termination or replacement of the documents, authorisations, consents and opinions referred to in the Schedule to this opinion. This opinion is also given on the basis that we undertake no responsibility to notify any addressee of this opinion of any change in English law after the date of this opinion.
9 We hereby consent to the filing of this opinion with the SEC as an exhibit to British American Tobacco’s current report on Form 6-K filed on 20 February 2024 and to the incorporation by reference of this opinion into the Registration Statement. We also consent to the reference to us made under the heading “Legal Matters” in the prospectus constituting a part of the Registration Statement and the Prospectus Supplement. In giving this consent we do not
admit that we are within the category of persons whose consent is required within section 7 of the United States Securities Act of 1933 or the rules and regulations of the SEC thereunder.
Yours faithfully
/s/ Linklaters LLP
Linklaters LLP
SCHEDULE
1 A certified copy of the Memorandum and Articles of Association of BATIF.
2 A certified extract of the Minutes of a Meeting of the Board of Directors of BATIF held on (i) 17 June 2019, (ii) 18 September 2020 and (iii) 29 June 2022.
3 A certified copy of the Memorandum and Articles of Association of British American Tobacco.
4 A certified extract from the Minutes of a Meeting of the Board of Directors of British American Tobacco held on (i) 3 June 2019, (ii) 29 July 2020 and (iii) 24 May 2022.
5 A copy of the Prospectus Supplement dated 15 February 2024 (the “Prospectus Supplement”).
6 Registration Statement.
7 Underwriting Agreement dated 15 February 2024 between BATCAP, as Issuer, the Guarantors, Barclays Capital Inc., HSBC Securities (USA) Inc., Mizuho Securities USA LLC, Santander US Capital Markets LLC, Wells Fargo Securities, LLC and the other underwriters party to the underwriting agreement relating to the purchase and sale of the Notes (the “Underwriting Agreement”).
8 Indenture dated 6 September 2019 between BATCAP, as Issuer, British American Tobacco, BATIF, BATNF and RAI, each as a guarantor, the Trustee and Citibank, N.A. as initial paying agent, authentication agent, transfer agent, registrar and calculation agent (in each such several capacities as the “Paying Agent”, “Authentication Agent”, “Transfer Agent”, “Registrar” and “Calculation Agent”) relating to the Notes (the “Base Indenture”).
9 Supplemental Indenture No. 20 dated 20 February 2024 between BATCAP, as Issuer, British American Tobacco, BATIF, BATNF and RAI, each as a guarantor, the Trustee and Citibank, N.A. as paying agent, authentication agent, transfer agent, registrar and calculation agent (in each such several capacities as the “Paying Agent”, “Authentication Agent”, “Transfer Agent”, “Registrar” and “Calculation Agent”) relating to the 2031 Notes (the “2031 Notes Indenture”).
10 Supplemental Indenture No. 21 dated 20 February 2024 between BATCAP, as Issuer, British American Tobacco, BATIF, BATNF and RAI, each as a guarantor, the Trustee and Citibank, N.A. as paying agent, authentication agent, transfer agent, registrar and calculation agent (in each such several capacities as the “Paying Agent”, “Authentication Agent”, “Transfer Agent”, “Registrar” and “Calculation Agent”) relating to the 2034 Notes (the “2034 Notes Indenture” and, together with the Base Indenture and the 2031 Notes Indenture, the “Indentures”).
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B.A.T. Netherlands Finance B.V. Handelsweg 53A 1181 ZA Amsterdam | | Stibbe N.V. Advocaten en notarissen Beethovenplein 10 P.O. Box 75640 1070 AP Amsterdam The Netherlands T +31 20 546 0 606 F +31 20 546 0 123 www.stibbe.com Date 20 February 2024 |
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| Shelf Programme – February 2024 issuance | | | |
Ladies and Gentlemen,
(1)We have acted as counsel with respect to matters of the laws of the Netherlands to B.A.T. Netherlands Finance B.V. (the "Guarantor") in connection with the registration statement on Form F-3 under the Securities Act of 1933 of the United States originally dated 1 July 2022 (the "Registration Statement") in relation to the registration of the offer and sale, from time to time, of debt securities by B.A.T Capital Corporation ("BATCAP"), B.A.T. International Finance p.l.c. ("BATIF") and British American Tobacco p.l.c. ("BAT" or the "Parent Guarantor").
This opinion is furnished to you in order to be incorporated by reference into the Registration Statement.
(2)For the purpose of this opinion, we have examined and exclusively relied upon photocopies or copies received by fax or by electronic means, or originals if so expressly stated, of the following documents:
(a)the prospectus supplement dated 15 February 2024 supplementing the Registration Statement;
(b)the underwriting agreement by and among (1) the underwriters named in schedule 1 thereto, (2) BATCAP (as issuer), (3) the Parent Guarantor, BATIF, the Guarantor and Reynolds American Inc. ("RAI") (as guarantors) dated 15 February 2024;
(c)the base indenture by and among (1) BATCAP (as issuer), (2) the Parent Guarantor, BATIF, the Guarantor and RAI (as guarantors), (3) Citibank, N.A. ("Citibank") (as trustee) and (4) Citibank (as authentication agent, transfer agent, registrar, calculation agent and initial paying agent) dated 6 September 2019 (the "Base Indenture");
(d)the supplemental indenture no. 20 relating to the $850,000,000 5.834% Notes due 2031 by and among (1) BATCAP (as issuer), (2) the Parent Guarantor, BATIF, the Guarantor and RAI (as guarantors) and (3) Citibank (as trustee) dated 20 February 2024;
Stibbe N.V. is registered with the Dutch Chamber of Commerce under number 34198700. Any services performed are carried out under an agreement for services (‘overeenkomst van opdracht’) with Stibbe N.V., which is governed exclusively by Dutch law. The general conditions of Stibbe N.V., which include a limitation of liability, apply and are available on www.stibbe.com/generalconditions or upon request.
(e)the supplemental indenture no. 21 relating to the $850,000,000 6.000% Notes due 2034 by and among (1) BATCAP (as issuer), (2) the Parent Guarantor, BATIF, the Guarantor and RAI (as guarantors) and (3) Citibank (as trustee) dated 20 February 2024;
(f)extracts from the Trade Register of the Chamber of Commerce (Kamer van Koophandel, afdeling Handelsregister) relating to the Guarantor dated 6 September 2019 (the "2019 Extract") and dated the date hereof (the "Current Extract" and together with the 2019 Extract, the "Extracts");
(g)the deed of incorporation of the Guarantor dated 23 April 2014 including its articles of association (statuten), which according to the Current Extract are the articles of association of the Guarantor as currently in force;
(h)the minutes of a meeting of the managing board of the Guarantor held on 12 June 2019 reflecting resolutions approving, inter alia, the execution by the Guarantor of the Base Indenture and the performance of its obligations thereunder;
(i)the minutes of a meeting of the managing board of the Guarantor held on 13 June 2022 reflecting resolutions approving, inter alia, the execution by the Guarantor of the Agreements (as defined below) (other than the Base Indenture) and the performance of its obligations thereunder; and
(j)the minutes of a meeting of the managing board of the Guarantor held on 15 February 2024 reflecting resolutions approving, inter alia, the execution by the Guarantor of the Agreements (other than the Base Indenture) and the performance of its obligations thereunder.
(3)The documents listed in paragraphs (2)(b) – (e) (inclusive) are hereinafter collectively also referred to as the "Agreements". The resolutions listed in paragraphs (2)(h) - (j) (inclusive) are hereinafter collectively also referred to as the "Resolutions".
References to the Civil Code, the Bankruptcy Act, the Code of Civil Procedure, the Financial Supervision Act and any other Codes or Acts are references to the Burgerlijk Wetboek, the Faillissementswet, the Wetboek van Burgerlijke Rechtsvordering, the Wet op het financieel toezicht and such other Codes or Acts of the Netherlands, as amended. In this opinion, "the Netherlands" refers to the European part of the Kingdom of the Netherlands and "EU" refers to the European Union.
(4)In rendering this opinion we have assumed:
(a)the genuineness and authenticity of all signatures on, and the authenticity and completeness of, all documents submitted to us as copies of drafts, originals or execution copies and the exact conformity to the originals of all documents submitted to us as photocopies or copies transmitted by facsimile or by electronic means;
(b)in relation to any signature other than a wet-ink signature (i) that the signing method used is sufficiently reliable, taking into consideration the purpose for which the electronic signature was used and all other relevant circumstances, within the
meaning of section 3:15a of the Civil Code or (ii) that such signature is a qualified electronic signature (elektronische gekwalificeerde handtekening) within the meaning of Regulation (EU) 910/2014;
(c)(i) the power, capacity and authority of all parties thereto other than the Guarantor to enter into and execute the Agreements; (ii) that the Agreements have been duly authorised by all parties thereto other than the Guarantor; and (iii) that the Agreements have been validly executed and delivered (where such concept is legally relevant) by each of the parties thereto (including but not limited to the Guarantor) under all applicable laws, including the laws by which the Agreements are expressed to be governed, other than the laws of the Netherlands;
(d)that any and all authorisations and consents of, or other filings with or notifications to, any public authority or other relevant body or person in or of any jurisdiction which may be required (other than under the laws of the Netherlands) in respect of the execution or performance of the Agreements have been or will be duly obtained or made, as the case may be;
(e)that the information set forth in the Extracts was and is complete and accurate on their respective dates and was and is consistent with the information contained in the files kept by the Trade Register with respect to the Guarantor;
(f)that the Resolutions have not been annulled, revoked or rescinded and are in full force and effect as at the date hereof;
(g)that the Guarantor has not been declared bankrupt (failliet verklaard), granted suspension of payments (surseance van betaling verleend) or dissolved (ontbonden), nor has ceased to exist due to merger (fusie) or demerger (splitsing) and that no out of court restructuring plan (onderhands akkoord) procedure is being prepared or has been commenced involving the Guarantor; although not constituting conclusive evidence, this assumption is supported by the contents of the Current Extract and by our online search of the Central Insolvency Register of the courts in the Netherlands (Centraal Insolventieregister) (as regards the out of court restructuring plan (onderhands akkoord) procedure, a search can be performed with respect to a public procedure only) on the date hereof, which did not reveal any information which would render this assumption to be untrue;
(h)that none of the insolvency proceedings listed in Annex A, as amended, to Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings has been declared applicable to the Guarantor by a court in one of the member states of the EU (with the exception of Denmark), other than the Netherlands; although not constituting conclusive evidence, this assumption is supported by our online search of the section on EU Registrations of the Central Insolvency Register (Centraal Insolventieregister) on the date hereof, which did not reveal any information which would render this assumption to be untrue;
(i)that none of the members of the managing board of the Guarantor has a conflict of interest within the meaning of section 2:239 of the Civil Code with the Guarantor with respect to any of the Agreements or the transactions contemplated thereby;
(j)that none of the members of the managing board of the Guarantor is subject to a civil law director disqualification (civielrechtelijk bestuursverbod) or has been suspended (geschorst) by the court to act as a managing director of the Guarantor within the meaning of sections 106a through 106c of the Bankruptcy Act, or is subject to any other disqualification, ban or suspension which compromises its authority to exercise its duties as a managing director; and
(k)that the granting of a guarantee given by the Guarantor with respect to the obligations of BATCAP in clause 9.01 of the Base Indenture can be regarded as being in the corporate interest of the Guarantor for purposes of section 2:7 of the Civil Code and cannot be regarded as constituting an act of fraudulent conveyance which is subject to challenge pursuant to section 3:45 of the Civil Code or section 42 of the Bankruptcy Act.
(5)We have not investigated the laws of any jurisdiction other than the Netherlands. This opinion is limited to matters of the laws of the Netherlands as they presently stand. We do not express any opinion with respect to (i) any public international law or the rules of or promulgated under any treaty or by any treaty organisation, other than any provisions of EU law having direct effect, (ii) matters of competition law, and (iii) matters of taxation.
(6)Based upon and subject to the foregoing and to the further qualifications, limitations and exceptions set forth herein, and subject to any factual matters not disclosed to us and inconsistent with the information revealed by the documents reviewed by us in the course of our examination referred to above, we are as at the date hereof of the following opinion:
(a)the Guarantor has been duly incorporated and is validly existing under the laws of the Netherlands as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) and has the necessary corporate capacity and power to enter into the Agreements and to exercise its rights and perform its obligations thereunder;
(b)all corporate action required to be taken by the Guarantor to authorise the execution of the Agreements by it or on its behalf and the performance of its obligations thereunder has been duly taken; and
(c)the Agreements have been duly executed on behalf of the Guarantor.
(7)This opinion is subject to the following qualifications:
(a)we express no opinion as to the accuracy of any representations given by the Guarantor or any other party (express or implied) under or by virtue of the Agreements; and
(b)the opinions expressed above are limited and may be affected by any applicable bankruptcy (faillissement), suspension of payments (surseance van betaling), insolvency, out of court restructuring plan (onderhands akkoord) procedure, moratorium, reorganisation, liquidation, fraudulent conveyance, or similar laws affecting the enforceability of rights of creditors generally (including rights of set-off) in any relevant jurisdiction including but not limited to section 3:45 of the Civil Code
and section 42 of the Bankruptcy Act concerning fraudulent conveyance as well as by any sanctions or measures under the Sanctions Act 1977 (Sanctiewet 1977) or by EU or other international sanctions and Regulation (EC) No 2271/96.
(8)In this opinion, Dutch legal concepts are expressed in English terms and not in their original Dutch terms. The concepts concerned may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. This opinion is given by Stibbe N.V. and may only be relied upon under the express condition that (i) any issues of interpretation or liability arising hereunder will be governed by the laws of the Netherlands and will be brought exclusively before a court of the Netherlands, and (ii) such liability, if any, shall be limited to Stibbe N.V. only, to the exclusion of any of its directors, partners, employees, shareholders and advisors or its or their affiliates and to the aggregate of the amount paid under Stibbe N.V.'s professional insurance in the particular instance and any applicable deductible payable by Stibbe N.V.
(9)We assume no obligation to update this opinion or to inform any person of any changes of law or other matters coming to our knowledge occurring after the date hereof which may affect this opinion in any respect. This opinion is given for the purposes of the Registration Statement only and may not be disclosed or quoted to any person other than as an exhibit to (and together with) the Registration Statement, without our prior written consent.
(10)We hereby consent to the filing of this opinion as an exhibit to BAT's current report on Form 6-K filed on 20 February 2024 and to the incorporation by reference of this opinion into the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the prospectus supplement constituting a part of the Registration Statement. In giving such consent, we do not thereby admit or imply that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the United States Securities and Exchange Commission.
Yours faithfully,
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Stibbe N.V. | | |
| | |
| | |
| /s/ Rein van Helden | | /s/ Jeroen Smits |
Rein van Helden | | Jeroen Smits |
Exhibit 5.4
womblebonddickinson.com
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| Womble Bond Dickerson (US) LLP |
| |
| One West Fourth Street |
| February 20, 2024 | Winston-Salem, NC 27101 |
| |
| Reynolds American Inc | t: 336.721.5600 |
| 401 North Main Street | f: 336721.3660 |
| Winston-Salem, NC 27101 | |
Re: Offering Pursuant to Registration Statement on Form F-3 (File No. 333-265958)
Ladies and Gentlemen:
We have acted as special North Carolina counsel to Reynolds American Inc., a North Carolina corporation (“RAI”), in connection with underwritten public offerings by B.A.T Capital Corporation, a Delaware corporation (“BATCAP”).
BATCAP is offering $850,000,000 aggregate principal amount of BATCAP’s 5.834% notes due 2031 and $850,000,000 aggregate principal amount of BATCAP’s 6.000% notes due 2034 (the “Notes”), which Notes are guaranteed by certain guarantors, including RAI (such guarantees of RAI, the “RAI Guarantees”), pursuant to a registration statement on Form F-3 filed with the U.S. Securities and Exchange Commission (the “Commission”) on July 1, 2022 (File No. 333-265958) (the “Registration Statement”), as described in a prospectus supplement, dated February 15, 2024 (the “Prospectus Supplement”). The Notes will be issued pursuant to an indenture, dated as of September 6, 2019, by and among BATCAP, the guarantors party thereto (including RAI), Citibank, N.A., as trustee (the “Trustee”), and Citibank, N.A., as registrar, transfer agent, calculation agent and initial paying agent, as supplemented by the supplemental indenture no. 20 and the supplemental indenture no. 21, each dated as of February 20, 2024, and each by and among BATCAP, the guarantors party thereto (including RAI), and the Trustee (as so supplemented, the “Indenture”). The RAI Guarantees are set forth in the Indenture. BATCAP and the guarantors party to the Indenture (including RAI) have entered into an underwriting agreement, dated February 15, 2024, with Barclays Capital Inc., HSBC Securities (USA) Inc., Mizuho Securities (USA) LLC, Santander US Capital Markets LLC, and Wells Fargo Securities, LLC.
In rendering the opinions set forth herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following documents, corporate records and other instruments: (i) the Indenture; (ii) the Amended and Restated Articles of Incorporation of RAI filed with the North Carolina Secretary of State on July 25, 2017; (iii) the Second Amended and Restated Bylaws of RAI; (iv) the unanimous written consent of the board of directors of RAI dated June 14, 2019; (v) the unanimous written consent of directors of RAI dated June 27, 2022; and (vi) the certificate of existence of RAI issued by the North Carolina Secretary of State dated February 15, 2024 (the “Certificate of Existence”). As to any facts relevant to our opinions, we have relied upon a certificate from an officer of RAI.
Based upon and subject to the foregoing and the further limitations and qualifications hereinafter expressed, it is our opinion that as of the date hereof:
1. RAI is a corporation in existence under the laws of the State of North Carolina.
Womble Bond Dickinson (US) LLP is a member of Womble Bond Dickinson (International) Limited, which consists of independent and autonomous law firms providing services in the US, the UK, and elsewhere around the world. Each Womble Bond Dickinson entity is a separate legal entity and is not responsible for the acts or omissions of, nor can bind or obligate, another Womble Bond Dickinson entity. Womble Bond Dickinson (International) Limited does not practice law. Please see www.womblebonddickinson.com/us/legal-notice for further details.
2. RAI has the corporate power to enter into and perform its obligations under the RAI Guarantees.
3. RAI has authorized the execution, delivery, and performance of the RAI Guarantees by all necessary corporate action.
In our examination, we have assumed the legal capacity of all natural persons, the incumbency of all persons designated as officers, directors or similar representatives of legal persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified, conformed, facsimile, electronic or photostatic copies. We have also assumed that the parties (other than RAI) had or will have the power, corporate or other, to enter into and perform all obligations in connection with the matters addressed by this opinion, and that they have or will have duly authorized by all requisite action, corporate or other, such obligations. We have further assumed that all parties have or will have duly executed and delivered all agreements and documents related to the matters addressed by this opinion and that the obligations thereunder are or will be valid and binding against all parties undertaking them.
The opinions set forth herein are limited to matters governed by the laws of the State of North Carolina, and no opinion is expressed herein as to the laws of any other jurisdiction. We express no opinion concerning any matter respecting or affected by any laws other than laws that a lawyer in North Carolina exercising customary professional diligence would reasonably recognize as being directly applicable to RAI, the issuance of the Notes, or both. Without limitation, we express no opinion regarding the enforceability of the RAI Guarantees. Our opinions expressed herein are as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof that may affect our opinions expressed herein. In rendering our opinion numbered 1 above, we have relied solely upon the Certificate of Existence.
This opinion is furnished to you in connection with the filing by British American Tobacco p.l.c. with the Commission of a Report of Foreign Private Issuer on Form 6-K (the “Form 6-K”), which will be incorporated by reference into the Registration Statement. We hereby consent to the filing of this opinion with the Commission as an exhibit to the Form 6-K and to the incorporation by reference of this opinion into the Registration Statement. This opinion may be relied upon by Cravath, Swaine & Moore LLP in connection with the filing of its own opinion as to the Notes and related guarantees as an exhibit to the Form 6-K.
We also consent to the reference to our firm under the heading “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission.
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| Very truly yours, | |
| |
| /s/ Womble Bond Dickinson (US) LLP | |
| Womble Bond Dickinson (US) LLP | |
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