Form 20-F x
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Form 40-F o
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Yes o
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No x
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CREDIT SUISSE GROUP AG and CREDIT SUISSE AG
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(Registrants)
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By:
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/s/ Christian Schmid
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Christian Schmid
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Managing Director
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/s/ Claude Jehle
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Claude Jehle
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Date: January 23, 2013
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Director
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(i)
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if the BCNs represented by this Global Certificate are held on behalf of Euroclear or Clearstream, Luxembourg or any other clearing system (an “Alternative Clearing System”) and any such clearing system is closed for business for a continuous period of 14 days (other than by reason of holidays, statutory or otherwise) or announces an intention permanently to cease business or does in fact do so; or
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(ii)
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upon or following any failure to pay principal in respect of any BCNs when it is due and payable; or
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(iii)
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with the consent of the Issuer,
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By: /s/ Anthony Le Conte | /s/ Roy McGregor |
Anthony Le Conte
Member of the Board of Directors
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Roy McGregor
Member of the Board of Directors
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By: /s/ S. Roos | /s/ Gabriele Fisch |
S. Roos
Assistant Manager
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Gabriele Fisch
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1
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Form, Denomination and Title
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2
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Transfers of Tier 1 BCNs
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(a)
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Transfer of Tier 1 BCNs
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(b)
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Delivery of New Certificates
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(c)
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Transfers Free of Charge
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(d)
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Closed Periods
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(e)
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Partial Redemption in Respect of Tier 1 BCNs
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3
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Status and Subordination of the Tier 1 BCNs
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(a)
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Status
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(b)
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Subordination
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(i)
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Subject as provided below, in the event of an order being made, or an effective resolution being passed, for the liquidation, dissolution or winding-up of the Issuer by reason of insolvency, bankruptcy or otherwise (except, in any such case, a solvent liquidation, dissolution or winding-up solely for the purposes of a reorganisation, reconstruction or amalgamation of the Issuer or the substitution in place of the Issuer of either a successor in business of the Issuer or CSG, the terms of which reorganisation, reconstruction, amalgamation or substitution (x) have previously been approved by an Extraordinary Resolution and (y) do not provide that the Tier 1 BCNs shall thereby become redeemable or repayable in accordance with these Conditions), the rights and claims of the Holders against the Issuer in respect of or arising under (including any damages awarded for breach of any obligation under) the Tier 1 BCNs shall, subject to any obligations which are mandatorily preferred by law, rank junior to the claims of all holders of unsubordinated obligations of the Issuer and all other subordinated obligations of the Issuer except subordinated obligations of the Issuer in respect of Tier 1 Instruments, at least pari passu with all subordinated obligations of the Issuer in respect of Tier 1 Instruments and senior to the claims of holders of all classes of share capital of the Issuer, provided that, if at any such time a Substitution Date has not occurred but an order has been made or an effective resolution has been passed for the liquidation or winding-up of CSG, any amount payable to Holders shall not exceed the amount per Tier 1 BCN that would be paid on a liquidation distribution out of the assets of CSG had the Tier 1 BCNs and any other obligations ranking pari passu with the Tier 1 BCNs ranked pari passu with Guarantor Parity Obligations (as defined in the Guarantee).
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(ii)
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On or after a Substitution Date, where CSG is the new issuer of the Tier 1 BCNs, in the event of an order being made, or an effective resolution being passed, for the liquidation or winding-up of CSG (except in any such case, a solvent liquidation or dissolution or winding-up solely for the purposes of a reorganisation, reconstruction or amalgamation of CSG or the substitution in place of CSG of a successor in business of CSG, the terms of which reorganisation, reconstruction, amalgamation or substitution (x) have previously been approved by an Extraordinary Resolution and (y) do not provide that the Tier 1 BCNs shall thereby become redeemable or repayable in accordance with these Conditions):
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(a)
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prior to the occurrence of a Contingency Event or a Viability Event, the claims of the Holders against CSG in respect of or arising under the Tier 1 BCNs shall rank (i) junior to all claims of CSG Priority Creditors, (ii) at least pari passu with CSG Parity Obligations and (iii) senior to the rights and claims of all holders of CSG Share Capital;
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(b)
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on and after the occurrence of a Contingency Event or a Viability Event, the rights and claims of Holders against CSG under the Tier 1 BCNs in respect of any Accrued Conversion Interest shall rank in the manner described in Condition 3(b)(ii)(a) above; or
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(c)
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on and after the occurrence of a Contingency Event or a Viability Event and an announcement that CSG is unable to create and issue the Ordinary Shares so as to fulfil the provisions of Conversion set forth in Condition 7(a), the claims of the Holders in respect of the delivery of Ordinary Shares in accordance with Condition 7 will convert to a monetary claim of such Holder against CSG to participate in the liquidation proceeds of CSG with a claim per Tier 1 BCN for a sum equal to that which holders of the number of Ordinary Shares into which such Tier 1 BCNs should have been converted at the then Conversion Price would receive out of the liquidation proceeds of CSG.
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4
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Guarantee
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(a)
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Guarantee and Status
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(b)
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Subordination
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5
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Set-off
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6
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Interest Calculations
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(a)
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Interest on Fixed Rate Tier 1 BCNs
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(b)
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Interest on Floating Rate Tier 1 BCNs
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(i)
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Interest Payment Dates
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(ii)
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Business Day Convention
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(iii)
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Floating Rate of Interest for Floating Rate Tier 1 BCNs
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(x)
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The Floating Rate of Interest for each Interest Accrual Period will, subject as provided below, be either:
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(1)
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the offered quotation; or
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(2)
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if required pursuant to Condition 6(b)(iii)(y) below, the arithmetic mean of the offered quotations,
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(y)
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If the Relevant Screen Page is not available or if Condition 6(b)(iii)(x)(1) above applies and no such offered quotation appears on the Relevant Screen Page or if sub-paragraph (x)(2) above applies and fewer than three such offered quotations appear on the Relevant Screen Page, in each case as at the time specified above, subject as provided below, the Calculation Agent shall request, if the Reference Rate is LIBOR, the principal London office of each of the Reference Banks or, if the Reference Rate is EURIBOR, the principal Euro-zone office of each of the Reference Banks, to provide the Calculation Agent with its offered quotation (expressed as a percentage rate per annum) for the Reference Rate if the Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the Interest Determination Date in question. If two or more of the Reference Banks provide the Calculation Agent with such offered quotations, the Floating Rate of Interest for such Interest Accrual Period shall be the arithmetic mean of such offered quotations as determined by the Calculation Agent.
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(z)
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If Condition 6(b)(iii)(y) above applies and the Calculation Agent determines that fewer than two Reference Banks are providing offered quotations, subject as provided below, the Floating Rate of Interest shall be the arithmetic mean of the rates per annum (expressed as a percentage) as communicated to (and at the request of) the Calculation Agent by the Reference Banks, or any two or more of them, at which such banks were offered, if the Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the relevant Interest Determination Date, deposits in the Specified Currency for a period equal to that which would have been used for the Reference Rate by leading banks in, if the Reference Rate is LIBOR, the London inter-bank market or, if the Reference Rate is EURIBOR, the Euro-zone inter-bank market, as the case may be, or, if fewer than two of the Reference Banks provide the Calculation Agent with such offered rates, the offered rate for deposits in the Specified Currency for a period equal to that which would have been used for the Reference Rate, or the arithmetic mean of the offered rates for deposits in the Specified Currency for a period equal to that which would have been used for the Reference Rate, at which, if the Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the relevant Interest Determination Date, any one or more banks (which bank or banks is or are in the opinion of the Issuer suitable for such purpose) informs the Calculation Agent it is quoting to leading banks in, if the Reference Rate is LIBOR, the London inter-bank market or, if the Reference Rate is EURIBOR, the Euro-zone inter-bank market, as the case may be, provided that, if the Rate of Interest cannot be determined in accordance with the foregoing provisions of this paragraph, the Floating Rate of Interest shall be determined as at the last preceding Interest Determination Date (though substituting, where a different Margin or Maximum or Minimum Rate of Interest is to be applied to the relevant Interest Accrual Period from that which applied to the last preceding Interest Accrual Period, the Margin or Maximum or Minimum Rate of Interest relating to the relevant Interest Accrual Period, in place of the Margin or Maximum or Minimum Rate of Interest relating to that last preceding Interest Accrual Period).
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(c)
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Interest on Fixed/Floating Rate Tier 1 BCNs
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(d)
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Accrual of Interest
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(i)
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Where a Tier 1 BCN is to be redeemed pursuant to Condition 8(c), 8(d) or 8(e), interest shall, subject as provided in Condition 6(h), accrue up to (but excluding) the due date for redemption, and shall cease to accrue on such Tier 1 BCN on the due date for redemption unless, upon due presentation, payment is improperly withheld or refused, in which event interest shall continue to accrue (both before and after judgment) at the relevant Rate of Interest from time to time in the manner provided in this Condition 6 to the Due Date.
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(ii)
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In the case of a Conversion in respect of the Tier 1 BCNs pursuant to Condition 7, interest shall, subject as provided in Condition 6(h), accrue on the principal amount of each Tier 1 BCN up to (but excluding) the date of the relevant Contingency Event Notice or, as the case may be, Viability Event Notice, and interest shall cease to accrue on each Tier 1 BCN with effect from the relevant Contingency Event Notice or, as the case may be, Viability Event Notice.
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(e)
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Margin, Maximum/Minimum Rates of Interest and Rounding
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(i)
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If any Margin is specified in the relevant Pricing Schedule (either (x) generally or (y) in relation to one or more Interest Accrual Periods), an adjustment shall be made to all Rates of Interest, in the case of (x), or the Rates of Interest for the specified Interest Accrual Periods, in the case of (y), calculated in accordance with Condition 6(b) above by adding (if a positive number) or subtracting the absolute value (if a negative number) of such Margin, subject always to the next paragraph.
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(ii)
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If any Maximum or Minimum Rate of Interest is specified in the relevant Pricing Schedule, then any Rate of Interest shall be subject to such maximum or minimum, as the case may be.
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(iii)
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For the purposes of any calculations required pursuant to these Conditions (unless otherwise specified), (x) all percentages resulting from such calculations shall be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with halves being rounded up), (y) all figures shall be rounded to seven significant figures (with halves being rounded up) and (z) all currency amounts that fall due and payable shall be rounded to the nearest unit of such currency (with halves being rounded up), save in the case of yen, which shall be rounded down to the nearest yen. For these purposes “unit” means the lowest amount of such currency that is legal tender.
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(f)
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Calculations
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(g)
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Determination and Publication of Rates of Interest and Interest Amounts
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(h)
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Cancellation of Interest; Prohibited Interest
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(i)
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The Issuer may, at its discretion, elect to cancel all or part of any payment of interest which is otherwise scheduled to be paid on an Interest Payment Date by giving notice of such election to the Holders in accordance with Condition 17, and to the Principal Paying and Conversion Agent, not more than 30 nor less than 10 Business Days prior to the relevant Interest Payment Date. This Condition 6(h)(i) is without prejudice to the provisions of Condition 6(h)(ii) and Condition 6(h)(v).
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(ii)
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The Issuer shall be prohibited from making, in whole or in part, any payment of interest on the Tier 1 BCNs on the relevant Interest Payment Date to the extent that on such Interest Payment Date:
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(a)
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CSG has an amount of Distributable Profits which is less than the sum of the (i) aggregate amount of such interest payment and (ii) all other payments (other than redemption payments) made by CSG since the date of the Relevant Accounts (1) on the Tier 1 BCNs and (2) on or in respect of any Tier 1 Instruments or Tier 1 Shares, in each case, excluding any portion of such other payments already accounted for in determining the Distributable Profits and, in each case as necessary, translated into the Share Currency at the relevant Prevailing Rate on or around such Interest Payment Date; and/or
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(b)
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the Regulatory Condition is not satisfied or would not be satisfied if such interest payment were made.
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(iii)
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If, on any Interest Payment Date, any payment of interest scheduled to be made on such date is not made in full by reason of Condition 6(h)(i) (such amount not paid, being “Pending Interest”) or by reason of Condition 6(h)(ii),
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(a)
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the Issuer shall procure that CSG shall not, directly or indirectly, resolve, or recommend to the Shareholders, that any distribution or dividend in cash or in kind (other than in the form of Ordinary Shares) be paid or made on any Ordinary Shares; and
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(b)
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the Issuer shall procure that CSG shall not, directly or indirectly, redeem, purchase or otherwise acquire any Ordinary Shares other than in relation to (1) transactions in securities effected by or for the account of customers of CSG or any of its Subsidiaries or in connection with the distribution or trading of, or market making in respect of Ordinary Shares securities; (2) the satisfaction by CSG or any of its Subsidiaries of its obligations under any employee benefit plans or similar arrangements with or for the benefit of employees, officers, directors or consultants; (3) a reclassification of the capital stock of CSG or any of its Subsidiaries or the exchange or conversion of one class or series of such capital stock for another class or series of such capital stock; or (4) the purchase of fractional interests in shares of the capital stock of CSG or any of its majority-owned subsidiaries pursuant to the provisions of any security being converted into or exchanged for such capital stock,
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(iv)
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Payments of interest on the Tier 1 BCNs are not cumulative. Notwithstanding any other provision in these Conditions but without prejudice to Condition 6(h)(v), the cancellation or non-payment of any interest payment by virtue of this Condition 6(h) shall not constitute a default for any purpose (including, without limitation, Condition 12(a) and (b)) on the part of the Issuer. Any interest payment not paid by virtue of this Condition 6(h) shall not accumulate or be payable at any time thereafter, and Holders shall have no right thereto.
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(v)
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Notwithstanding any other provision in these Conditions, if the ordinary shareholders of CSG resolve to make or pay a distribution or dividend in cash or in kind (other than in the form of Ordinary Shares) on the Ordinary Shares in respect of a financial year or other specified period during which there has arisen any Pending Interest, the Issuer shall, subject as provided below, pay to the Holders, within 5 Business Days of such distribution or dividend being paid or made, an amount equal to the aggregate amount of all Pending Interest which has arisen during such financial year or other specified period. If the Shareholders do not resolve to make or pay a distribution or dividend on the Ordinary Shares as described in this Condition 6(h)(v), no amount shall be payable under this Condition 6(h)(v).
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(i)
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Definitions
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(i)
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in the case of a currency other than euro, a day (other than a Saturday or Sunday) on which commercial banks and foreign exchange markets settle payments in the principal financial centre for such currency; and/or
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(ii)
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in the case of euro, a day on which the TARGET system is operating (a “TARGET Business Day”); and/or
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(iii)
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in the case of a currency and/or one or more Business Centres specified in the relevant Pricing Schedule a day (other than a Saturday or a Sunday) on which commercial banks and foreign exchange markets settle payments in such currency in such Business Centre(s) or, if no currency is indicated, generally in each of such Business Centres.
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(i)
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if “Actual/Actual” or “Actual/Actual – ISDA” is specified in the relevant Pricing Schedule, the actual number of days in the Calculation Period divided by 365 (or, if any portion of that Calculation Period falls in a leap year, the sum of (A) the actual number of days in that portion of the Calculation Period falling in a leap year divided by 366 and (B) the actual number of days in that portion of the Calculation Period falling in a non-leap year divided by 365);
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(ii)
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if “Actual/365 (Fixed)” is specified in the relevant Pricing Schedule, the actual number of days in the Calculation Period divided by 365;
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(iii)
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if “Actual/360” is specified in the relevant Pricing Schedule, the actual number of days in the Calculation Period divided by 360;
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(iv)
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if “Actual/Actual-ICMA” is specified in the relevant Pricing Schedule,
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(a)
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if the Calculation Period is equal to or shorter than the Determination Period during which it falls, the number of days in the Calculation Period divided by the product of (x) the number of days in such Determination Period and (y) the number of Determination Periods normally ending in any year; and
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(b)
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if the Calculation Period is longer than one Determination Period, the sum of:
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(x)
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the number of days in such Calculation Period falling in the Determination Period in which it begins divided by the product of (1) the number of days in such Determination Period and (2) the number of Determination Periods normally ending in any year; and
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(y)
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the number of days in such Calculation Period falling in the next Determination Period divided by the product of (1) the number of days in such Determination Period and (2) the number of Determination Periods normally ending in any year,
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(v)
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if “30/360”, “360/360” or “Bond Basis” is specified in the relevant Pricing Schedule, the number of days in the Calculation Period divided by 360, calculated on a formula basis as follows:
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Day Count Fraction = | ||
(i)
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in respect of an Interest Accrual Period, the amount of interest payable per Calculation Amount for that Interest Accrual Period and which, in the case of Fixed Rate Tier 1 BCNs, and unless otherwise specified in the relevant Pricing Schedule, shall mean the Fixed Coupon Amount or Broken Amount specified in the relevant Pricing Schedule as being payable on the Interest Payment Date ending in the Interest Period of which such Interest Accrual Period forms part; and
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(ii)
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in respect of any other period, the amount of interest payable per Calculation Amount for that period.
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(j)
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Calculation Agent
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7
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Conversion
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(a)
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Conversion upon a Contingency Event or a Viability Event
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(i)
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If a Contingency Event occurs at any time while the Tier 1 BCNs are outstanding, each Tier 1 BCN shall, subject to and as provided in this Condition 7, be redeemed and settled (the “Contingency Event Conversion”) by the delivery of new fully paid Ordinary Shares to the Settlement Shares Depository on behalf of the Holders on the date specified therefor in the Contingency Event Notice, which shall be no more than 20 Business Days following the occurrence of the Contingency Event (the “Contingency Event Conversion Settlement Date”). Subject to Condition 7(c), receipt by the Settlement Shares Depository of the Ordinary Shares shall be a good and complete discharge of the Issuer’s obligations in respect of the Tier 1 BCNs and those of the Guarantor under the Guarantee.
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(ii)
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If a Viability Event occurs at any time while the Tier 1 BCNs are outstanding, each Tier 1 BCN shall, subject to and as provided in this Condition 7, be redeemed and settled (the “Viability Event Conversion”) by the delivery of new fully paid Ordinary Shares to the Settlement Shares Depository on behalf of the Holders on the date specified therefor in the Viability Event Notice, which date shall be no more than 20 Business Days following the occurrence of the Viability Event (the “Viability Event Conversion Settlement Date”). Subject to Condition 7(c), receipt by the Settlement Shares Depository of the Ordinary Shares shall be a good and complete discharge of the Issuer’s obligations in respect of the Tier 1 BCNs and those of the Guarantor under the Guarantee.
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(a)
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the Regulator has notified CSG that it has determined that Conversion of the Tier 1 BCNs, together with the conversion or write off of holders’ claims in respect of any other Buffer Capital Instruments, Tier 1 Instruments and Tier 2 Instruments that, pursuant to their terms or by operation of law, are capable of being converted into equity or written off at that time, is, because customary measures to improve CSG’s capital adequacy are at the time inadequate or unfeasible, an essential requirement to prevent CSG from becoming insolvent, bankrupt or unable to pay a material part of its debts as they fall due, or from ceasing to carry on its business; or
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(b)
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customary measures to improve CSG’s capital adequacy being at the time inadequate or unfeasible, CSG has received an irrevocable commitment of extraordinary support from the Public Sector (beyond customary transactions and arrangements in the ordinary course) that has, or imminently will have, the effect of improving CSG's capital adequacy and without which, in the determination of the Regulator, CSG would have become insolvent, bankrupt, unable to pay a material part of its debts as they fall due or unable to carry on its business; or
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(c)
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the Capital Ratio contained in any Interim Capital Report is below five per cent. and as a consequence the conversion into equity or write off of any or all Progressive Capital Instruments in issue at such time occurs or, in the determination of the Regulator, would have occurred but for Conversion of the Tier 1 BCNs and the conversion or write off of all other Buffer Capital Instruments that, pursuant to their terms or by operation of law, are capable of being converted into equity or written off at that time.
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(iii)
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If a Contingency Event or Viability Event occurs, the Tier 1 BCNs will be converted in whole and not in part as provided in accordance with Condition 7(a).
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(iv)
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The Tier 1 BCNs are not convertible into Ordinary Shares at the option of Holders at any time and are not redeemable in cash as a result of a Contingency Event or a Viability Event.
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(v)
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Prior to giving the Contingency Event Notice or the Viability Event Notice, the Issuer shall deliver to the Principal Paying and Conversion Agent a certificate signed by two Authorised Signatories of CSG stating that the Contingency Event or, as the case may be, the Viability Event has occurred, and such certificate will be conclusive and binding on the Holders.
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(vi)
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If a Takeover Event shall occur that is a Qualifying Takeover Event, then, where the relevant Conversion Date falls on or after the New Conversion Condition Effective Date (as defined below), each Tier 1 BCN shall, upon the occurrence of the Contingency Event or, as the case may be, the Viability Event, subject to and as provided in this Condition 7(a) and Condition 7(j), be converted into Approved Entity Shares (as defined below) of the Approved Entity (as defined below).
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(b)
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Recourse for Ordinary Shares
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(c)
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Accrued Conversion Interest
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(i)
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Upon Conversion, the Issuer shall, or shall procure that CSG shall, pay to the Holders the Accrued Conversion Interest (if any) in respect of the Tier 1 BCNs on the relevant Conversion Date.
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(ii)
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Payment of any Accrued Conversion Interest will be made by transfer to an account with a bank in the principal financial centre of the Specified Currency or, in the case of a payment in euro, to an account with a bank in a city in which banks have access to the TARGET System, as specified in the relevant Delivery Notice or, as the case may be, as provided below.
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(iii)
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If, in the case of a Conversion, a Delivery Notice and the Certificate representing the relevant Tier 1 BCNs are not delivered to the Principal Paying and Conversion Agent on or before the Notice Cut-off Date as required in Condition 7(m) or otherwise, the relevant Delivery Notice shall be treated as null and void and any Accrued Conversion Interest in respect of the relevant Tier 1 BCNs which is due to be paid on the Conversion Date shall be paid on the relevant Conversion Date to the Principal Paying and Conversion Agent for distribution to the relevant Holders in accordance with Condition 9.
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(d)
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Conversion Price
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(a)
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the Reference Market Price of an Ordinary Share on the fifth Zurich Business Day prior to the date of the relevant Contingency Event Notice or, as the case may be, the Viability Event Notice translated, if necessary, into the Specified Currency at the Exchange Rate;
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(b)
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the Floor Price on the fifth Zurich Business Day prior to the date of the Contingency Event Notice or, as the case may be, the Viability Event Notice; and
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(c)
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the nominal value of each Ordinary Share on the Share Creation Date (being, at the Issue Date, CHF 0.04) translated, if necessary, into the Specified Currency at the Adjusted Exchange Rate,
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(i)
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if the Ordinary Shares to be issued or delivered (if applicable) do not rank for the Dividend (or entitlement) in question, the VWAP on the dates on which the Ordinary Shares shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement; or
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(ii)
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if the Ordinary Shares to be issued or delivered (if applicable) do rank for the Dividend (or entitlement) in question, the VWAP on the dates on which the Ordinary Shares shall have been based on a price ex-Dividend (or ex- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement,
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(e)
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Adjustments to the Floor Price
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(i)
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If and whenever there shall be a consolidation, reclassification or subdivision affecting the number of Ordinary Shares, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such consolidation, reclassification or subdivision by the following fraction:
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A
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is the aggregate number of Ordinary Shares in issue immediately before such consolidation, reclassification or subdivision, as the case may be; and
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B
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is the aggregate number of Ordinary Shares in issue immediately after, and as a result of, such consolidation, reclassification or subdivision, as the case may be.
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(ii)
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If and whenever CSG shall issue any fully paid Ordinary Shares to the Shareholders by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve) other than (1) where any such Ordinary Shares are or are to be issued instead of the whole or part of a Dividend in cash which the Shareholders would or could otherwise have elected to receive, (2) where the Shareholders may elect to receive a Dividend in cash in lieu of such Ordinary Shares or (3) where any such Ordinary Shares are or are expressed to be issued in lieu of a Dividend (whether or not a cash Dividend equivalent or amount is announced or would otherwise be payable to Shareholders, whether at their election or otherwise), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such issue by the following fraction:
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A
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is the aggregate number of Ordinary Shares in issue immediately before such issue; and
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B
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is the aggregate number of Ordinary Shares in issue immediately after such issue.
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(iii)
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If and whenever any Capital Distribution shall be made or paid to Shareholders, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
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A
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is the Volume Weighted Average Price of one Ordinary Share on whichever is the earlier of (x) the last dealing day preceding the Effective Date or (y) the dealing day when the amount of the relevant Dividend is announced, or, if the day on which the amount of the relevant Dividend is announced is not a dealing day, the next following dealing day; and
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B
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is the portion of the Fair Market Value of the aggregate Capital Distribution attributable to one Ordinary Share, with such portion being determined by dividing the Fair Market Value of the aggregate Capital Distribution on the Effective Date by the number of Ordinary Shares entitled to receive the relevant Dividend (or, in the case of a purchase, redemption or buy back of Ordinary Shares or any depositary or other receipts or certificates representing Ordinary Shares by or on behalf of CSG or any Subsidiary of CSG, by the number of Ordinary Shares in issue immediately following such purchase, redemption or buy back, and treating as not being in issue any Ordinary Shares, or any Ordinary Shares represented by depositary or other receipts or certificates, purchased, redeemed or bought back).
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(a)
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any Dividend which is expressed by CSG or declared by the Board of Directors of CSG to be a capital distribution, extraordinary dividend, extraordinary distribution, special dividend, special distribution or return of value to shareholders of CSG or any analogous or similar term, in which case the Capital Distribution shall be the Fair Market Value of such Dividend; or
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(b)
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any Non-Cash Dividend; or
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(c)
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any Cash Dividend (the “Relevant Dividend”) paid or made in respect of a fiscal year of CSG (the “Relevant Fiscal Year”) if the sum of:
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(i)
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the Fair Market Value of the Relevant Dividend per Ordinary Share; and
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(ii)
|
the aggregate of the Fair Market Value per Ordinary Share of any other Cash Dividend or Cash Dividends per Ordinary Share paid or made in respect of the Relevant Fiscal Year (disregarding for such purpose any amount previously determined to be a Capital Distribution in respect of the Relevant Fiscal Year),
|
(iv)
|
If and whenever CSG shall issue Ordinary Shares to Shareholders as a class by way of rights at a price per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share on the Effective Date, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the number of Ordinary Shares in issue on the Effective Date;
|
|
B
|
is the number of Ordinary Shares which the aggregate consideration (if any) receivable for the Ordinary Shares issued by way of rights would purchase at such Current Market Price per Ordinary Share on the Effective Date; and
|
|
C
|
is the number of Ordinary Shares to be issued.
|
(v)
|
If and whenever CSG shall issue any Securities (other than Ordinary Shares) to Shareholders as a class by way of rights or grant to Shareholders as a class by way of rights any options, warrants or other rights to subscribe for or purchase any Securities (including options, warrants or other rights to subscribe for or purchase Ordinary Shares), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the Volume Weighted Average Price of one Ordinary Share on the last dealing day preceding the Effective Date; and
|
|
B
|
is the Fair Market Value on the Effective Date of the portion of the rights attributable to one Ordinary Share.
|
(vi)
|
If and whenever CSG shall issue (otherwise than as mentioned in Condition 7(e)(iv) above) wholly for cash or for no consideration any Ordinary Shares (other than Ordinary Shares issued on conversion of the Tier 1 BCNs or on the exercise of any rights of conversion into, or exchange or subscription for or purchase of, Ordinary Shares) or issue or grant (otherwise than as mentioned in Condition 7(e)(iv) above) wholly for cash or for no consideration any options, warrants or other rights to subscribe for or purchase any Ordinary Shares (other than the Tier 1 BCNs, which term shall for this purpose include any Further Tier 1 BCNs), in each case at a price per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share on the date of the first public announcement of the terms of such issue or grant, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the number of Ordinary Shares in issue immediately before the issue of such Ordinary Shares or the grant of such options, warrants or rights;
|
|
B
|
is the number of Ordinary Shares which the aggregate consideration (if any) receivable for the issue of such Ordinary Shares or, as the case may be, for the Ordinary Shares to be issued or otherwise made available upon the exercise of any such options, warrants or rights, would purchase at such Current Market Price per Ordinary Share; and
|
|
C
|
is the number of Ordinary Shares to be issued pursuant to such issue of such Ordinary Shares or, as the case may be, the maximum number of Ordinary Shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights.
|
(vii)
|
If and whenever CSG or any Subsidiary of CSG or (at the direction or request of or pursuant to any arrangements with CSG or any Subsidiary of CSG) any other company, person or entity (otherwise than as mentioned in Conditions 7(e)(iv), 7(e)(v) or 7(e)(vi) above) shall issue wholly for cash or for no consideration any Securities (other than the Tier 1 BCNs which term shall for this purpose exclude any Further Tier 1 BCNs) which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, Ordinary Shares (or shall grant any such rights in respect of existing Securities so issued) or Securities which by their terms might be redesignated as Ordinary Shares, and the consideration per Ordinary Share receivable upon conversion, exchange, subscription or redesignation is less than 95 per cent. of the Current Market Price per Ordinary Share on the date of the first public announcement of the terms of issue of such securities (or the terms of such grant), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the number of Ordinary Shares in issue immediately before such issue or grant (but where the relevant Securities carry rights of conversion into or rights of exchange or subscription for Ordinary Shares which have been issued, purchased or acquired by CSG or any Subsidiary of CSG (or at the direction or request or pursuant to any arrangements with CSG or any Subsidiary of CSG) for the purposes of or in connection with such issue, less the number of such Ordinary Shares so issued, purchased or acquired);
|
|
B
|
is the number of Ordinary Shares which the aggregate consideration (if any) receivable for the Ordinary Shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription attached to such Securities or, as the case may be, for the Ordinary Shares to be issued or to arise from any such redesignation would purchase at such Current Market Price per Ordinary Share; and
|
|
C
|
is the maximum number of Ordinary Shares to be issued or otherwise made available upon conversion or exchange of such Securities or upon the exercise of such right of subscription attached thereto at the initial conversion, exchange or subscription price or rate or, as the case may be, the maximum number of Ordinary Shares which may be issued or arise from any such redesignation,
|
(viii)
|
“Effective Date” means, in respect of this Condition 7(e)(vii), the date of issue of such Securities or, as the case may be, the grant of such rights. If and whenever CSG or any Subsidiary of CSG or (at the direction or request of or pursuant to any arrangements with CSG or any Subsidiary of CSG) any other company, person or entity shall offer any Securities in connection with which Shareholders as a class are entitled to participate in arrangements whereby such Securities may be acquired by them (except where the Floor Price falls to be adjusted under Conditions 7(e)(ii), (e)(iii), (e)(iv), (e)(vi) or (e)(vii) above (or would fall to be so adjusted if the relevant issue or grant was at less than 95 per cent. of the Current Market Price per Ordinary Share on the relevant dealing day) or under Condition 7(e)(v) above), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately before the Effective Date by the following fraction:
|
|
A
|
is the Current Market Price of one Ordinary Share on the Effective Date; and
|
|
B
|
is the Fair Market Value on the Effective Date of the portion of the relevant offer attributable to one Ordinary Share.
|
(ix)
|
If the Issuer, in consultation with CSG, determines that a reduction to the Floor Price should be made for whatever reason, the Floor Price will be reduced (either generally or for a specified period as notified to Holders) in such manner and with effect from such date as the Issuer, in consultation with CSG, shall determine and notify to the Holders.
|
(A)
|
where the events or circumstances giving rise to any adjustment pursuant to this Condition 7(e) have already resulted or will result in an adjustment to the Floor Price or where the events or circumstances giving rise to any adjustment arise by virtue of any other events or circumstances which have already given or will give rise to an adjustment to the Floor Price or where more than one event which gives rise to an adjustment to the Floor Price occurs within such a short period of time that, in the opinion of CSG, a modification to the operation of the adjustment provisions is required to give the intended result, such modification shall be made to the operation of the adjustment provisions as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate to give the intended result;
|
(B)
|
such modification shall be made to the operation of this Tier 1 BCN as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate (i) to ensure that an adjustment to the Floor Price or the economic effect thereof shall not be taken into account more than once and (ii) to ensure that the economic effect of a Dividend is not taken into account more than once;
|
(C)
|
for the avoidance of doubt, the issue of Ordinary Shares upon a Conversion or upon any conversion or exchange in respect of any other Securities or the exercise of any other options, warrants or other rights shall not result in an adjustment to the Floor Price; and
|
(D)
|
at any time when the Ordinary Shares are not admitted to trading on a Recognised Stock Exchange by reason of a Non-Qualifying Takeover Event or otherwise, the Floor Price shall be adjusted as provided above save that for the purposes thereof the Current Market Price of an Ordinary Share, the Volume Weighted Average Price of an Ordinary Share and the Effective Date shall be determined in good faith by an Independent Financial Adviser in such manner as it considers appropriate to ensure that an adjustment to the Floor Price is made which gives the intended same result as if the Ordinary Shares were so admitted to trading.
|
(1)
|
the aggregate consideration receivable or price for Ordinary Shares issued for cash shall be the amount of such cash;
|
(2)
|
(x) the aggregate consideration receivable or price for Ordinary Shares to be issued or otherwise made available upon the conversion or exchange of any Securities shall be deemed to be the consideration or price received or receivable for any such Securities and (y) the aggregate consideration receivable or price for Ordinary Shares to be issued or otherwise made available upon the exercise of rights of subscription attached to any Securities or upon the exercise of any options, warrants or rights shall be deemed to be that part (which may be the whole) of the consideration or price received or receivable for such Securities or, as the case may be, for such options, warrants or rights which are attributed by CSG to such rights of subscription or, as the case may be, such options, warrants or rights or, if no part of such consideration or price is so attributed, the Fair Market Value of such rights of subscription or, as the case may be, such options, warrants or rights as at the relevant date of first public announcement referred to in Conditions 7(e)(vi) or 7(e)(vii), plus in the case of each of (x) and (y) above, the additional minimum consideration receivable or price (if any) upon the conversion or exchange of such Securities, or upon the exercise of such rights or subscription attached thereto or, as the case may be, upon exercise of such options, warrants or rights and (z) the consideration receivable or price per Ordinary Share upon the conversion or exchange of, or upon the exercise of such rights of subscription attached to, such Securities or, as the case may be, upon the exercise of such options, warrants or rights shall be the aggregate consideration or price referred to in (x) or (y) above (as the case may be) divided by the number of Ordinary Shares to be issued upon such conversion or exchange or exercise at the initial conversion, exchange or subscription price or rate;
|
(3)
|
if the consideration or price determined pursuant to (1) or (2) above (or any component thereof) shall be expressed in a currency other than the Share Currency, it shall be converted into the Share Currency at the Prevailing Rate on the relevant Effective Date (in the case of (1) above) or the relevant date of first public announcement (in the case of (2) above);
|
(4)
|
in determining the consideration or price pursuant to the above, no deduction shall be made for any commissions or fees (howsoever described) or any expenses paid or incurred for any underwriting, placing or management of the issue of the relevant Ordinary Shares or Securities or options, warrants or rights, or otherwise in connection therewith; and
|
(5)
|
the consideration or price shall be determined as provided above on the basis of the consideration or price received, receivable, paid or payable, regardless of whether all or part thereof is received, receivable, paid or payable by or to CSG or another entity.
|
(f)
|
Notice of Adjustments to the Floor Price
|
(g)
|
Decision of an Independent Financial Adviser
|
(h)
|
Share Option Schemes
|
(i)
|
Rounding Down and Notice of Adjustment to the Floor Price
|
(j)
|
Qualifying Takeover Event
|
(i)
|
If a Qualifying Takeover Event shall occur, the Tier 1 BCNs shall, where the Conversion Date falls on or after the New Conversion Condition Effective Date, be converted into Approved Entity Shares of the Approved Entity, mutatis mutandis as provided in accordance with this Condition 7, at a Conversion Price that shall be the New Conversion Price.
|
(ii)
|
The New Floor Price shall be subject to adjustment in the circumstances provided in this Condition 7 for the adjustment of the Floor Price (if necessary with such modifications and amendments as an Independent Financial Adviser acting in good faith shall determine to be appropriate) and the Issuer shall give notice to Holders of the New Floor Price and of any such modifications and amendments thereafter.
|
(iii)
|
In the case of a Qualifying Takeover Event:
|
(1)
|
the Issuer shall and will procure that the Guarantor shall, on or prior to the New Conversion Condition Effective Date, enter into such agreements and arrangements, which may include deeds supplemental to these Conditions, and such amendments and modifications to these Conditions and the Guarantee shall be made to ensure that, with effect from the New Conversion Condition Effective Date, the Tier 1 BCNs shall be convertible into, or exchangeable for, Approved Entity Shares of the Approved Entity, mutatis mutandis in accordance with, and subject to, this Condition 7 (as may be so supplemented, amended or modified) at the New Conversion Price;
|
(2)
|
the Issuer shall, where the Conversion Date falls on or after the New Conversion Condition Effective Date, procure the issue and/or delivery of the relevant number of Approved Entity Shares in the manner provided in this Condition 7, as may be amended or modified as provided above.
|
(iv)
|
Within 10 business days following the occurrence of a Takeover Event, the Issuer shall give notice thereof in accordance with Condition 17 to the Holders (a “Takeover Event Notice”).
|
(1)
|
the identity of the Acquiror;
|
(2)
|
whether the Takeover Event is a Qualifying Takeover Event or a Non-Qualifying Takeover Event;
|
(3)
|
in the case of a Qualifying Takeover Event, if determined at such time, the New Floor Price; and
|
(4)
|
if applicable, the New Conversion Condition Effective Date.
|
(v)
|
“Acquiror” means the person which, following a Takeover Event, controls CSG.
|
(i)
|
the Reference Market Price of the Approved Entity Shares on the fifth Zurich Business Day prior to the date of the relevant Contingency Event Notice or Viability Event Notice (translated, if necessary, into the Specified Currency at the Prevailing Rate on the relevant Business Day) (and where references in the definition of “Reference Market Price” and “VWAP” to “Ordinary Shares” shall be construed as a reference to the Approved Entity Shares and in the definition of “dealing day”, reference to the “Primary Stock Exchange” shall be to the relevant Recognised Stock Exchange); and
|
(ii)
|
the New Floor Price on the fifth Zurich Business Day prior to such Contingency Event Notice or Viability Event Notice translated, if necessary, into the Specified Currency at the Prevailing Rate on such Business Day.
|
NFP = EFPx | VWAPAES |
VWAPOS |
|
NFP
|
is the New Floor Price.
|
|
EFP
|
is the Floor Price in effect on the dealing day immediately prior to the New Conversion Condition Effective Date.
|
|
VWAPAES
|
means the average of the Volume Weighted Average Price of the Approved Entity Shares (translated, if necessary, into the Specified Currency at the Prevailing Rate on the relevant dealing day) on each of the five dealing days ending on the dealing day prior to the closing date of the Takeover Event (and where references in the definition of “Volume Weighted Average Price” to “Ordinary Shares” shall be construed as a reference to the Approved Entity Shares and in the definition of “dealing day”, references to the “Primary Stock Exchange” shall be to the relevant Recognised Stock Exchange).
|
|
VWAPOS
|
is the average of the Volume Weighted Average Price of the Ordinary Shares on each of the five dealing days ending on the dealing day immediately prior to the closing date of the Takeover Event.
|
(i)
|
the Acquiror is an Approved Entity; and
|
(ii)
|
the New Conversion Condition is satisfied.
|
(k)
|
Procedure for Settlement and Delivery of Ordinary Shares on Conversion
|
(l)
|
Fractions
|
(m)
|
Procedure for Delivery in respect of a Conversion
|
(i)
|
The Issuer, with the assistance of the Share Delivery Agent, shall procure that on or prior to the Conversion Date, CSG delivers to the Settlement Shares Depository such number of Ordinary Shares as is required to satisfy in full the Issuer’s obligation to deliver Ordinary Shares in respect of the Conversion of the aggregate amount of Tier 1 BCNs on the Conversion Date. Receipt by the Settlement Shares Depository of such Ordinary Shares shall be a good and complete discharge of the Issuer’s and CSG’s obligations in respect of the Tier 1 BCNs.
|
(ii)
|
In order to obtain delivery of the relevant Ordinary Shares upon a Conversion from the Settlement Shares Depository, the relevant Holder must deliver a duly completed Delivery Notice, together with the relevant Certificates representing the Tier 1 BCNs held by it, to the specified office of any Paying and Conversion Agent no later than 5 Business Days (in the relevant place of delivery) prior to the relevant Conversion Date (the “Notice Cut-off Date”).
|
(iii)
|
Subject to the making of a Settlement Shares Offer and as otherwise provided herein, the Principal Paying and Conversion Agent shall give instructions to the Settlement Shares Depository for the relevant Ordinary Shares to be delivered by the Settlement Shares Depository on the Conversion Date in accordance with the instructions given in the relevant Delivery Notice, provided that such duly completed Delivery Notice and the relevant Certificate representing the Tier 1 BCNs have been so delivered not later than the Notice Cut-off Date.
|
(iv)
|
If a duly completed Delivery Notice and relevant Certificate representing any Tier 1 BCN is not delivered to the specified office of a Paying and Conversion Agent on or before the Notice Cut-off Date, then at any time following the Notice Cut-off Date and prior to the 10th Business Day after the Conversion Date the Issuer may in its sole and absolute discretion (and the relevant Holders of such Tier 1 BCNs shall be deemed to agree thereto), elect to appoint a person (the “Selling Agent”) to procure that all Ordinary Shares held by the Settlement Shares Depository in respect of which no duly completed Delivery Notice and Certificate representing the Tier 1 BCNs have been delivered on or before the Notice Cut-off Date as aforesaid or in respect of which any Holder is otherwise not entitled to be admitted to the register of Shareholders shall be sold by or on behalf of the Selling Agent as soon as reasonably practicable. Subject to the deduction by or on behalf of the Selling Agent of any amount payable in respect of its liability to taxation and the payment of any capital, stamp, issue, registration and/or transfer taxes and duties (if any) and any fees or costs incurred by or on behalf of the Selling Agent in connection with the issue, allotment and sale thereof, the net proceeds of sale, converted into the Specified Currency at the Prevailing Rate on the Notice Cut-off Date, if necessary, shall as soon as reasonably practicable be distributed rateably to the relevant Holders in accordance with Condition 9 or in such other manner and at such time as the Issuer or CSG shall determine and notify to the Holders.
|
(v)
|
Any Delivery Notice shall be irrevocable. Failure properly to complete and deliver a Delivery Notice and deliver the relevant Certificate representing the Tier 1 BCNs may result in such Delivery Notice being treated as null and void and the Issuer shall be entitled to procure the sale of any applicable Ordinary Shares to which the relevant Holder may be entitled in accordance with Condition 7(m)(iv) above. Any determination as to whether any Delivery Notice has been properly completed and delivered as provided in this Condition 7 shall be made by the Issuer in its sole discretion, acting in good faith, and shall, in the absence of manifest error, be conclusive and binding on the relevant Holders.
|
(vi)
|
In respect of a Contingency Event Conversion only, following receipt by the Settlement Shares Depository of the Ordinary Shares as described above, which, subject to Condition 7(c), shall be a good and complete discharge of the Issuer’s obligations in respect of the Tier 1 BCNs, the Issuer may, in its sole and absolute discretion, appoint a placement agent (the “Settlement Shares Offer Agent”) acting on behalf, and for the accounts, of the Holders to conduct an offering of the Ordinary Shares to which the Holders are otherwise entitled (a “Settlement Shares Offer”). In the relevant Contingency Event Notice, the Issuer shall notify whether it will appoint such Settlement Shares Offer Agent to conduct such a Settlement Shares Offer. If it does so appoint a Settlement Shares Offer Agent, CSG will instruct the Settlement Shares Depository to deliver the relevant Ordinary Shares to or to the order of the Settlement Shares Offer Agent for this purpose prior to the end of the Offer Settlement Period. Such Settlement Shares Offer shall be made at a net price per Ordinary Share, which, translated into the Specified Currency at the Prevailing Rate at the date of the Contingency Event Notice, is equal to or above the Conversion Price, to some or, subject to applicable laws and regulations and to such an offer being practicable in the opinion of the Issuer and CSG in the Offer Settlement Period (as defined below), all shareholders of CSG on the record date of the Contingency Event Notice then eligible to participate in such offer. Any such Settlement Shares Offer shall be completed no later than 20 Business Days after the occurrence of the Contingency Event (the “Offer Settlement Period”). Neither CSG, the Issuer nor the Settlement Shares Depository shall incur any liability whatsoever to the Holders in respect of the appointment of such Settlement Shares Offer Agent or its conduct, save for cases of gross negligence or wilful intent.
|
(n)
|
Taxes and Duties
|
(o)
|
Delivery
|
(p)
|
Ordinary Shares
|
(q)
|
Purchase or Redemption of Ordinary Shares
|
(r)
|
Covenants
|
(i)
|
(other than in connection with a Reorganisation) not issue or pay up any Securities, in either case by way of capitalisation of profits or reserves, other than:
|
(1)
|
by the issue of fully paid Ordinary Shares or other Securities to Shareholders and other holders of shares in the capital of CSG which, by their terms, entitle the holders thereof to receive Ordinary Shares or other shares or Securities on a capitalisation of profits or reserves; or
|
(2)
|
by the issue of Ordinary Shares paid up in full (in accordance with applicable law) and issued wholly, ignoring fractional entitlements, in lieu of the whole or part of a Dividend in cash; or
|
(3)
|
by the issue of fully paid equity share capital (other than Ordinary Shares) to the holders of equity share capital of the same class and other holders of shares in the capital of CSG which, by their terms, entitle the holders thereof to receive equity share capital (other than Ordinary Shares); or
|
(4)
|
by the issue of Ordinary Shares or any equity share capital to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of CSG or any of its Subsidiaries or any associated company or to trustees or nominees to be held for the benefit of any such person, in any such case pursuant to an employee, director or executive share or option scheme whether for all employees, directors, or executives or any one or more of them,
|
(ii)
|
not modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation but so that nothing in this Condition 7(r)(ii) shall prevent:
|
(1)
|
any consolidation, reclassification or subdivision of the Ordinary Shares; or
|
(2)
|
any modification of such rights which is not materially prejudicial to the interests of the Holders as determined in good faith by an Independent Financial Adviser;
|
(iii)
|
procure that no Securities (whether issued by CSG or any Subsidiary of CSG or procured by CSG or any Subsidiary of CSG to be issued or issued by any other person pursuant to any arrangement with CSG or any Subsidiary of CSG) issued without rights to convert into, or exchange or subscribe for, Ordinary Shares shall subsequently be granted such rights exercisable at a consideration per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share at the close of business on the last dealing day preceding the date of the first public announcement of the proposed inclusion of such rights unless the same gives rise (or would, but for the provisions of Condition 7(i) relating to roundings and minimum adjustments or the carry forward of adjustments, give rise) to an adjustment to the Floor Price and that at no time shall there be in issue Ordinary Shares of differing nominal values, save where such Ordinary Shares have the same economic rights;
|
(iv)
|
not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on a Conversion, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
|
(v)
|
not reduce its issued share capital, share premium account, capital redemption reserve, or any uncalled liability in respect thereof, or any non-distributable reserves, except where the reduction is permitted by applicable law and results in (or would, but for the provisions of Condition 7(i) relating to roundings or the carry forward of adjustments, result in) an adjustment to the Floor Price or is otherwise taken into account for the purposes of determining whether or not such an adjustment should be made;
|
(vi)
|
in the event of a Reorganisation, take (or shall procure that there is taken) all necessary action to ensure that, immediately after completion of the relevant proceedings, such amendments are made to these Conditions as are necessary to ensure that the Tier 1 BCNs may be converted into or exchanged for ordinary shares or units or the equivalent in Newco mutatis mutandis in accordance with and subject to these Conditions and the ordinary shares or units or the equivalent of Newco are listed and admitted to trading on a Recognised Stock Exchange;
|
(vii)
|
issue, allot and/or deliver Ordinary Shares upon Conversion subject to and as provided in this Condition 7;
|
(viii)
|
save following a Non-Qualifying Takeover Event, use all reasonable endeavours to ensure that its issued and outstanding Ordinary Shares and the Ordinary Shares or, as appropriate, Approved Entity Shares issued upon Conversion shall be admitted to listing and trading on a Primary Stock Exchange or admitted to listing on another regulated, regularly operating, recognised stock exchange or securities market;
|
(ix)
|
at all times keep available for issue, free from pre-emptive or other preferential rights, a sufficient number of Ordinary Shares to enable Conversion of the Tier 1 BCNs, and all other rights of subscription and exchange for Ordinary Shares, to be satisfied in full; and
|
(x)
|
where the provisions of this Condition 7 require or provide for a determination by an Independent Financial Adviser or a role to be performed by a Settlement Shares Depository, a Settlement Shares Offer Agent and/or a Share Delivery Agent, CSG shall use all reasonable endeavours promptly to appoint such person for such purpose.
|
8
|
Redemption, Substitution, Variation and Purchase
|
(a)
|
No Fixed Redemption Date
|
(b)
|
Conditions to Redemption, Substitution, Variation and Purchase
|
(c)
|
Optional Redemption
|
(d)
|
Redemption due to Taxation
|
(e)
|
Redemption for Capital Event
|
(f)
|
No redemption following a Contingency Event or Viability Event
|
(g)
|
Purchases
|
(h)
|
Substitution or Variation upon a Capital Event or a Tax Event
|
(i)
|
Cancellation
|
9
|
Payments
|
(a)
|
Tier 1 BCNs
|
(i)
|
Payments of principal and premium (if any) to be made to Holders in respect of Tier 1 BCNs and payments of accrued interest payable on a redemption of Tier 1 BCNs (other than on an Interest Payment Date) and payment of any Accrued Conversion Interest that is to be paid in accordance with this Condition 9 shall, in each case, be made against presentation and surrender of the relevant Certificates at the specified office of any of the Transfer Agents or of the Registrar and in the manner provided in (ii) below.
|
(ii)
|
Payments of interest to be made to Holders in respect of Tier 1 BCNs due on an Interest Payment Date shall be paid to the person shown on the Register at the close of business on the seventh day before the due date for payment thereof (the “Record Date”).
|
(iii)
|
All such payments shall be made in the relevant currency by transfer to an account in the relevant currency maintained by the payee with a bank.
|
(iv)
|
Payments of all other amounts other than as referred to in (i) and (ii) will be made as provided in these Conditions.
|
(b)
|
Payments subject to Fiscal Laws
|
(c)
|
Appointment of Agents
|
(d)
|
Non-Business Days
|
(i)
|
(in the case of a payment in a currency other than euro) where payment is to be made by transfer to an account maintained with a bank in the relevant currency on which foreign exchange transactions may be carried on in the relevant currency in the principal financial centre of the country of such currency; or
|
(ii)
|
(in the case of a payment in euro) which is a TARGET Business Day.
|
10
|
Taxation
|
(a)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN by reason of the Holder having some connection with a Tax Jurisdiction other than the mere holding of such Tier 1 BCN; or
|
(b)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment more than 30 days after the Due Date (as defined below) except to the extent that the Holder would have been entitled to such additional amounts on presenting the same for payment on such thirtieth day assuming that day to have been a business day (as defined in Condition 9(d)); or
|
(c)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is imposed on a payment to an individual and is (A) required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive, (B) required to be made pursuant to the Agreement between the European Community and the Confederation of Switzerland dated as of 26 October 2004 (the “Swiss Savings Tax Agreement”) providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, the Swiss Savings Tax Agreement, (C) required to be made pursuant to agreements between Guernsey and the EU Member States (the “Guernsey Savings Tax Agreements”) providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such Guernsey Savings Tax Agreements, or (D) required to be made pursuant to any agreements between the European Community and other countries or territories providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreements; or
|
(d)
|
any such taxes, duties, assessments or other governmental charges imposed on any other person than the Issuer or CSG, including any Paying and Conversion Agent in any jurisdiction; or
|
(e)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting the relevant Tier 1 BCN to another Paying and Conversion Agent in a Member State of the European Union; or
|
(f)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is required by the Swiss Federal Withholding Tax Code of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer vom 13 Oktober 1965 as amended from time to time); or
|
(g)
|
any combination of two or more items (a) to (f) above.
|
11
|
Prescription
|
12
|
Events of Default
|
(a)
|
Events of Default relating to the Issuer
|
(i)
|
Events of Default
|
|
(x)
|
default is made for a period of 10 days or more in the payment of any principal or premium (if any) due or 30 days or more in the payment of any interest due in respect of the Tier 1 BCNs or any of them; or
|
|
(y)
|
an order is made or a resolution is passed for the winding-up, dissolution or liquidation of the Issuer or the Guarantor (other than a winding-up which has been approved previously by an Extraordinary Resolution of the Holders).
|
(ii)
|
Proceedings for Winding-up
|
(iii)
|
Enforcement
|
(b)
|
Events of Default relating to CSG following a Substitution Date
|
(i)
|
CSG fails to make any payment of principal in respect of the Tier 1 BCNs for a period of 10 days or more after the date such payment is due, or CSG fails to make any payment of interest in respect of the Tier 1 BCNs for a period of 30 days or more after the date on which such payment is due;
|
(ii)
|
an involuntary case or other proceeding shall be commenced against CSG, with respect to CSG or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of CSG or for any substantial part of the property and assets of CSG, and such involuntary case or other proceedings shall remain undismissed and unstayed for a period of 60 days, except that the issuance of a writ of payment (Zahlungsbefehl) under the Swiss debt enforcement and bankruptcy laws shall not constitute such involuntary case or proceeding for the purpose of this Condition 12(b); or an order for relief shall be entered against CSG for the purpose of this Condition 12(b); or an order for relief shall be entered against CSG under any bankruptcy, insolvency or other similar law now or hereafter in effect; or
|
(iii)
|
CSG (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of CSG for all or substantially all of the property and assets of CSG, or (iii) effects any general assignment for the benefit of creditors.
|
(c)
|
Extent of Holder’s remedy
|
13
|
Meetings of Holders, Modification and Substitution
|
(a)
|
Meetings of Holders
|
(b)
|
Modifications
|
(c)
|
Substitution upon Reorganisation
|
(d)
|
Substitution
|
14
|
Currency Indemnity
|
15
|
Replacement of Tier 1 BCNs and Certificates
|
16
|
Further Issues
|
17
|
Notices
|
18
|
Definitions
|
(i)
|
have economic terms not materially less favourable to a Holder thereof than the Conditions of the Tier 1 BCNs (as reasonably determined by the Issuer, and provided that a certification to such effect of the Authorised Signatories shall have been delivered to the Principal Paying and Conversion Agent prior to the issue of the relevant securities), provided that such securities (1) contain terms such that they remain or become, as the case may be, securities which are eligible wholly or partly to be treated as Buffer Capital under National Regulations and/or Additional Tier 1 Capital under BIS Regulations; (2) include terms which provide for the same Interest Rate and principal from time to time applying to the Tier 1 BCNs; (3) rank pari passu with the Guarantee; and (4) preserve any existing rights under these Conditions to any accrued but unpaid interest which has not been satisfied; and
|
(ii)
|
where the Tier 1 BCNs which have been substituted or varied were listed immediately prior to their substitution or variation, the relevant securities are listed on (i) the Luxembourg Euro MTF Market or (ii) such other internationally recognised stock exchange as selected by the Issuer; and
|
(iii)
|
where the Tier 1 BCNs which have been substituted or varied were rated by a Rating Agency immediately prior to their substitution or variation, each such Rating Agency has ascribed, or announced its intention to ascribe and publish, an equal or higher rating to the relevant securities;
|
(i)
|
if the Ordinary Shares to be issued or delivered do not rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the Ordinary Shares shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement; or
|
(ii)
|
if the Ordinary Shares to be issued or delivered do rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the Ordinary Shares shall have been based on a price ex-Dividend (or ex- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the Fair Market Value of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement,
|
(i)
|
where: (1) a Dividend in cash is announced which is to be, or may at the election of a Shareholder or Shareholders be, satisfied by the issue or delivery of Ordinary Shares or other property or assets, or where a capitalisation of profits or reserves is announced which is to be, or may at the election of a Shareholder or Shareholders be, satisfied by the payment of cash, then the Dividend or capitalisation in question shall be treated as a Cash Dividend of an amount equal to the greater of (i) the Fair Market Value of such cash amount and (ii) the Current Market Price of such Ordinary Shares as at the first date on which the Ordinary Shares are traded ex- the relevant Dividend on the Primary Stock Exchange or, as the case may be, the record date or other due date for establishment of entitlement in respect of the relevant capitalisation or, as the case may be, the Fair Market Value of such other property or assets as at the date of the first public announcement of such Dividend or capitalisation on the Primary Stock Exchange or, if later, the date on which the number of Ordinary Shares (or amount of such other property or assets, as the case may be) which may be issued or delivered is determined or (2) there shall be any issue of Ordinary Shares by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve) where such issue is or is expressed to be in lieu of a Dividend (whether or not a cash Dividend equivalent or amount is announced or would otherwise be payable to Shareholders, whether at their election or otherwise), the Dividend or capitalisation in question shall be treated as a Cash Dividend of an amount equal to the Current Market Price of such Ordinary Shares as at the first date on which the Ordinary Shares are traded ex- the relevant capitalisation on the Primary Stock Exchange or, as the case may be, the record date or other due date for establishment of entitlement in respect of the relevant capitalisation or, in any such case, if later, the date on which the number of Ordinary Shares to be issued or delivered is determined;
|
(ii)
|
any issue of Ordinary Shares falling within Condition 7(e)(ii) shall be disregarded;
|
(iii)
|
a purchase or redemption or buy back of share capital of CSG by or on behalf of CSG or any of its Subsidiaries shall not constitute a Dividend unless, in the case of a purchase or redemption or buy back of Ordinary Shares by or on behalf of CSG or any of its Subsidiaries, the weighted average price per Ordinary Share (before expenses) on any one day (a “Specified Share Day”) in respect of such purchases or redemptions or buy backs (translated, if not in the Share Currency, into the Share Currency at the Prevailing Rate on such day) exceeds by more than 5 per cent. the average of the daily Volume Weighted Average Price of an Ordinary Share on the five dealing days immediately preceding the Specified Share Day or, where an announcement (excluding, for the avoidance of doubt for these purposes, any general authority for such purchases, redemptions or buy backs approved by a general meeting of Shareholders or any notice convening such a meeting of Shareholders) has been made of the intention to purchase, redeem or buy back Ordinary Shares at some future date at a specified price or where a tender offer is made, on the five dealing days immediately preceding the date of such announcement or the date of first public announcement of such tender offer (and regardless of whether or not a price per Ordinary Share, a minimum price per Ordinary Share or a price range or formula for the determination thereof is or is not announced at such time), as the case may be, in which case such purchase, redemption or buy back shall be deemed to constitute a Dividend in the Share Currency in an amount equal to the amount by which the aggregate price paid (before expenses) in respect of such Ordinary Shares purchased, redeemed or bought back by CSG or, as the case may be, any of its Subsidiaries (translated where appropriate into the Share Currency as provided above) exceeds the product of (i) 105 per cent. of the daily Volume Weighted Average Price of an Ordinary Share determined as aforesaid and (ii) the number of Ordinary Shares so purchased, redeemed or bought back;
|
(iv)
|
if CSG or any of its Subsidiaries shall purchase, redeem or buy back any depositary or other receipts or certificates representing Ordinary Shares, the provisions of paragraph (iii) above shall be applied in respect thereof in such manner and with such modifications (if any) as shall be determined in good faith by an Independent Financial Adviser;
|
(v)
|
where a dividend or distribution is paid or made to Shareholders pursuant to any plan implemented by CSG for the purpose of enabling Shareholders to elect, or which may require Shareholders, to receive dividends or distributions in respect of the Ordinary Shares held by them from a person other than, or in addition to, CSG, such dividend or distribution shall for the purposes of Condition 7 be treated as a dividend or distribution made or paid to Shareholders by CSG, and the foregoing provisions of this definition and the provisions of Condition 7, including references to CSG paying or making a dividend, shall be construed accordingly, and any such determination shall be made on a gross basis and disregarding any withholding or deduction required to be made on account of tax, and disregarding any associated tax credit; and
|
(vi)
|
a dividend or distribution that is a Spin-Off shall be deemed to be a Non Cash Dividend paid or made by CSG;
|
(i)
|
a distribution of Spin-Off Securities by CSG to Shareholders as a class; or
|
(ii)
|
any issue, transfer or delivery of any property or assets (including cash or shares or other securities of or in or issued or allotted by any entity) by any entity (other than CSG) to Shareholders as a class or, in the case of or in connection with a Reorganisation, Existing Shareholders as a class (but excluding the issue and allotment of ordinary shares (or depositary or other receipts or certificates representing such ordinary shares) by Newco to Existing Shareholders as a class), pursuant in each case to any arrangements with CSG or any of its Subsidiaries;
|
19
|
Governing Law and Jurisdiction
|
1
|
Once completed, this form is to be sent to the Registrar.
|
2
|
The signature of the person effecting a transfer shall conform to a list of duly authorised specimen signatures supplied by the holder of the BCN(s) represented by this Certificate or (if such signature corresponds with the name as it appears on the face of this Certificate) be certified by a notary public or a recognised bank or be supported by such other evidence as the Registrar may reasonably require.
|
3
|
A representative of the Holder should state the capacity in which the signs.
|
1
|
Issuer:
|
Credit Suisse Group (Guernsey) II Limited
|
|
2
|
Guarantor:
|
Credit Suisse Group AG
|
|
3
|
Series Number:
|
2
|
|
4
|
Specified Currency or Currencies:
|
U.S.$
|
|
5
|
Aggregate Nominal Amount:
|
||
(i) Series:
|
U.S.$1,725,000,000
|
||
(ii) Tranche:
|
1
|
||
6
|
(i) Specified Denomination:
|
U.S.$200,000
|
|
(ii) Calculation Amount:
|
U.S.$200,000
|
||
7
|
Issue Date:
|
31 July 2012
|
|
8
|
Interest Commencement Date:
|
Issue Date
|
|
9
|
Interest Basis:
|
Fixed/Floating Rate (further particulars specified below)
|
|
10
|
Redemption/Payment Basis:
|
100 per cent. of Principal Amount
|
|
11
|
Change of Interest or Payment Basis:
|
Not applicable
|
|
PROVISIONS RELATING TO INTEREST PAYABLE
|
|||
12
|
Fixed Rate Note Provisions
|
Not applicable
|
|
13
|
Fixed/Floating Rate Provisions
|
Applicable
|
|
(i) |
Fixed Rate of Interest:
|
9.5 per cent. per annum payable annually in arrear until the first Interest Payment Date following the First Optional Redemption Date. Thereafter, as provided in (ii) below.
|
|
(ii) |
Floating Rate of Interest:
|
The aggregate of 6.64 per cent. and the 6 month US Dollar LIBOR rate.
|
|
(iii) |
Fixed Interest Rate Period:
|
From the Issue Date to (and including) the first Interest Payment Date following the First Optional Redemption Date
|
|
(iv) |
Floating Interest Rate Period:
|
From (but excluding) the first Interest Payment Date following the First Optional Redemption Date to the date of any redemption of any of the Tier 1 BCNs
|
(v) |
Interest Payment Date(s):
|
14 February in each year commencing on 14 February 2013 during the Fixed Interest Period and 14 February and 14 August in each year during the Floating Interest Rate Period adjusted during the Floating Interest Rate Period in accordance with the Modified Following Business Day Convention
|
|
(vi) |
Fixed Coupon Amount(s):
|
To be calculated in accordance with Condition 6(f)
|
|
(vii) |
Broken Amount(s):
|
To be calculated according to Condition 6(f)
|
|
(viiii) |
Day Count Fraction:
|
30/360 during the Fixed Interest Note Period and Actual/360 during the Floating Rate Period.
|
|
(ix) |
Determination Dates:
|
Not applicable
|
|
(x) |
Other terms relating to the method of calculating interest for Fixed Rate Notes:
|
Not applicable
|
|
14
|
Floating Rate Note Provisions
|
Not Applicable
|
|
PROVISIONS RELATING TO CONVERSION
|
|||
15
|
Floor Price (subject to adjustment as provided in the Conditions)
|
U.S.$16.57
|
|
PROVISIONS RELATING TO REDEMPTION
|
|||
16
|
Early Redemption
|
||
First Optional Redemption Date:
|
23 October 2018
|
||
Other optional redemption dates:
|
Each Interest Payment Date after the First Optional Redemption Date
|
||
Optional Redemption Amount:
|
U.S.$200,000 per Specified Denomination
|
||
17
|
Redemption due to Taxation
|
||
Tax Redemption Amount:
|
Make Whole Redemption Price
|
||
Tax redemption dates:
|
At any time and in accordance with Condition 8(d)
|
||
Make Whole Redemption Price:
|
"Make Whole Redemption Price" means, in respect of each Tier 1 BCN, (a) the principal amount of such Tier 1 BCN or, if it is higher and the relevant date fixed for redemption falls prior to the First Optional Redemption Date, (b) the amount equal to the sum of the present value of the principal amount of such Tier 1 BCN, together with the present values of the scheduled Interest Payments (assuming for this purpose the relevant Interest Payments are not cancelled in accordance with the Conditions) from the relevant date fixed for redemption to the First Optional Redemption Date, in each case discounted to such redemption date in a manner consistent with customary market practice at the Relevant Discount Rate.
|
"Relevant Discount Rate" means 3 per cent. plus the Mid Market Swap Rate as determined by the Calculation Agent at or around 11.00 a.m. (CET) on the third Zurich Business Day preceding the relevant date fixed for redemption.
"Mid Market Swap Rate" means the mid market USD swap rate Libor basis for the maturity falling most closely to the First Optional Redemption Date appearing on the relevant Bloomberg page (or such other page as may replace that page on Bloomberg, or such other page as may be nominated by the person providing or sponsoring the information appearing there for the purposes of displaying comparable rates).
|
||
18
|
Redemption for Capital Event
|
|
Capital Event Redemption Amount:
|
Make Whole Redemption Price
|
|
Capital Event redemption dates:
|
At any time and in accordance with Condition 8(e)
|
|
GENERAL PROVISIONS APPLICABLE TO THE NOTES
|
||
19
|
Financial Centre(s) or other special provisions relating to payment dates:
|
Zurich
|
20
|
Ratings:
|
None on Issue Date; Fitch Ratings expected from the Issue Date
|
21
|
Listing:
|
None. The Issuer will use its best endeavours to apply for a listing on or as soon as reasonably practicable following the Issue Date.
|
22
|
Common Code:
|
081084661 |
23
|
ISIN Code:
|
XS0810846617
|
1.
|
Being informed that Credit Suisse Group (Guernsey) II Limited (the “Issuer”) issued and sold U.S.$ 1,725,000,000 9.5 per cent. Tier 1 Buffer Capital Notes (the “Tier 1 BCNs”), Credit Suisse Group AG, Zurich, Switzerland (the “Guarantor”), hereby irrevocably and unconditionally guarantees to the holders of the Tier 1 BCNs (the “Holders”) in accordance with Article 111 CO, irrespective of the validity of the Tier 1 BCNs, or the validity of the purchase agreement entered into between the Issuer, the Guarantor and the Investor (as defined therein) on February 13, 2011, as amended by an amendment agreement on July 31, 2012 or any other agreement entered into in relation to the Tier 1 BCNs (the “Agreements”), and waiving all rights of objection and defence arising from the terms and conditions of the Tier 1 BCNs (the “Terms of the Tier 1 BCNs”) and/or the Agreements, (i) the due and punctual payment of all principal, premium and interest and any other sums from time to time expressed to be payable by the Issuer in respect of the Tier 1 BCNs, (ii) upon the occurrence of a Contingency Event Conversion or a Viability Event Conversion, the due delivery of the Ordinary Shares, and (iii) the performance of any other action to be performed by the Issuer in accordance with the Terms of the Tier 1 BCNs.
|
2.
|
All payments of principal, premium (if any) and/or interest to Holders by or on behalf of the Guarantor under the Guarantee shall be made without withholding or deduction for or on account of any present or future tax, duty, assessment or governmental charge of whatsoever nature imposed, levied, collected, withheld or assessed by or on behalf of any Tax Jurisdiction or any authority thereof or therein having power to tax, unless such withholding or deduction is required by law. In that event, unless compensated under the indemnity in Condition 13(d) the Guarantor shall pay such additional amounts (the “Additional Amounts”) as will result (after such withholding or deduction) in receipt by the Holders of the sums which would have been receivable (in the absence of such withholding or deduction) from it in respect of their Tier 1 BCNs; except that no such Additional Amounts shall be payable with respect to any Tier 1 BCN on account of:
|
(a)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN by reason of the holder thereof having some connection with a Tax Jurisdiction other than the mere holding of such Tier 1 BCN; or
|
(b)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment more than 30 days after the Due Date except to the extent that the holder thereof would have been entitled to such additional amounts on presenting the same for payment on such thirtieth day assuming that day to have been a business day (as defined in Condition 9(d)); or
|
(c)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is imposed on a payment to an individual and is (A) required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive, (B) required to be made pursuant to the Agreement between the European Community and the Confederation of Switzerland dated as of 26 October 2004 (the “Swiss Savings Tax Agreement”) providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, the Swiss Savings Tax Agreement, (C) required to be made pursuant to agreements between Guernsey and the EU Member States dated 19 November 2004 (the “Guernsey Savings Tax Agreement”) providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such Guernsey Savings Tax Agreement, or (D) required to be made pursuant to any agreements between the European Community and other countries or territories providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreements; or
|
(d)
|
any such taxes, duties, assessments or other governmental charges imposed on any other person than the Issuer or CSG, including any Paying or Conversion Agent in any jurisdiction; or
|
(e)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Tier 1 BCN to another Paying and Conversion Agent in a Member State of the European Union; or
|
(f)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is required by the Swiss Federal Withholding Tax Code of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer vom 13. Oktober 1965) as amended from time to time; or
|
(g)
|
any combination of two or more items (a) to (f) above.
|
3.
|
Notwithstanding any other provision hereof, the Guarantor shall, without prejudice to Condition 6(h)(v), not be obliged to make any payment under this Guarantee to the extent that the Issuer has elected to cancel any payment pursuant to Condition 6(h)(i) or is prohibited from making such payment pursuant to Condition 6(h)(ii).
|
4.
|
The Guarantee constitutes a direct, unconditional, unsecured and subordinated obligation of the Guarantor as hereinafter provided, except for such preferences as are provided by any mandatory applicable provision of law.
|
(a)
|
prior to the occurrence of a Contingency Event or a Viability Event, the rights and claims of the Holders against the Guarantor in respect of or arising under the Guarantee shall rank (i) junior to all claims of Guarantor Priority Creditors, (ii) at least pari passu with Guarantor Parity Obligations and (iii) senior to the rights and claims of all holders of Guarantor Share Capital;
|
(b)
|
on and after the occurrence of a Contingency Event or a Viability Event, the rights and claims of Holders against the Guarantor under the Guarantee in respect of any Accrued Conversion Interest, shall rank in the manner as described in Article 4(a) above; or
|
(c)
|
on and after the occurrence of a Contingency Event or a Viability Event and an announcement that the Guarantor is unable to create and issue the Ordinary Shares so as to fulfil the provisions of conversion set forth in Condition 7(a), the rights and claims of the Holders in respect of the delivery of Ordinary Shares in accordance with Condition 7 will convert to a monetary claim of such Holder against the Guarantor to participate in the liquidation proceeds of the Guarantor with a claim per Tier 1 BCN for a sum equal to that which holders of the number of Ordinary Shares into which such Tier 1 BCN should have been converted at the then Conversion Price would receive out of the liquidation proceeds of the Guarantor.
|
5.
|
Payments under the Guarantee shall be made in the Specified Currency. The Guarantor undertakes to pay to the Holders, without any restrictions, and whatever the circumstances may be, irrespective of nationality or domicile of the beneficiary of such payments and without requiring any affidavit or the fulfilment of any other formality, any sums due pursuant to the Guarantee in the Specified Currency in accordance with the Terms of the Tier 1 BCNs. Any transfer tax, which might possibly be imposed on the transfer of such funds shall be borne by the Guarantor.
|
6.
|
The Guarantee shall give rise to a separate and independent cause of action against the Guarantor, shall apply irrespective of any indulgence granted to the Issuer by any Holder from time to time, and shall continue in full force and effect notwithstanding any judgement or order against the Issuer and/or the Guarantor.
|
7.
|
Whilst any Tier 1 BCN remains outstanding, the Guarantor shall, save with the approval of an Extraordinary Resolution:
|
(a)
|
(other than in connection with a Reorganisation) not issue or pay up any Securities, in either case by way of capitalisation of profits or reserves, other than:
|
(1)
|
by the issue of fully paid Ordinary Shares or other Securities to Shareholders and other holders of shares in the capital of the Guarantor which, by their terms, entitle the holders thereof to receive Ordinary Shares or other shares or Securities on a capitalisation of profits or reserves; or
|
(2)
|
by the issue of Ordinary Shares paid up in full (in accordance with applicable law) and issued wholly, ignoring fractional entitlements, in lieu of the whole or part of a Dividend in cash; or
|
(3)
|
by the issue of fully paid equity share capital (other than Ordinary Shares) to the holders of equity share capital of the same class and other holders of shares in the capital of the Guarantor which, by their terms, entitle the holders thereof to receive equity share capital (other than Ordinary Shares); or
|
(4)
|
by the issue of Ordinary Shares or any equity share capital to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of the Guarantor or any of its Subsidiaries or any associated company or to trustees or nominees to be held for the benefit of any such person, in any such case pursuant to an employee, director or executive share or option scheme whether for all employees, directors, or executives or any one or more of them,
|
(b)
|
not modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation but so that nothing in this Article 7(b) shall prevent:
|
(1)
|
any consolidation, reclassification or subdivision of the Ordinary Shares; or
|
(2)
|
any modification of such rights which is not materially prejudicial to the interests of the Holders as determined in good faith by an Independent Financial Adviser;
|
(c)
|
procure that no Securities (whether issued by the Guarantor or any Subsidiary of the Guarantor or procured by the Guarantor or any Subsidiary of the Guarantor to be issued or issued by any other person pursuant to any arrangement with the Guarantor or any Subsidiary of the Guarantor) issued without rights to convert into, or exchange or subscribe for, Ordinary Shares shall subsequently be granted such rights exercisable at a consideration per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share at the close of business on the last dealing day preceding the date of the first public announcement of the proposed inclusion of such rights unless the same gives rise (or would, but for the provisions of Condition 7(i) relating to roundings and minimum adjustments or the carry forward of adjustments, give rise) to an adjustment to the Floor Price and that at no time shall there be in issue Ordinary Shares of differing nominal values, save where such Ordinary Shares have the same economic rights;
|
(d)
|
not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on Conversion, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
|
(e)
|
not reduce its issued share capital, share premium account, capital redemption reserve, or any uncalled liability in respect thereof, or any non-distributable reserves, except where the reduction is permitted by applicable law and results in (or would, but for the provisions of Condition 7(i) relating to roundings or the carry forward of adjustments, result in) an adjustment to the Floor Price or is otherwise taken into account for the purposes of determining whether or not such an adjustment should be made;
|
(f)
|
in the event of a Reorganisation, take (or shall procure that there is taken) all necessary action to ensure that, immediately after completion of the relevant proceedings, such amendments are made to the Conditions as are necessary to ensure that the Tier 1 BCNs may be converted into or exchanged for ordinary shares or units or the equivalent in Newco mutatis mutandis in accordance with and subject to the Conditions and the ordinary shares or units or the equivalent of Newco are listed and admitted to trading on a Recognised Stock Exchange;
|
(g)
|
issue, allot and/or deliver Ordinary Shares upon Conversion subject to and as provided in Condition 7;
|
(h)
|
save following a Non-Qualifying Takeover Event, use all reasonable endeavours to ensure that its issued and outstanding Ordinary Shares and the Ordinary Shares or, as appropriate, Approved Entity Shares issued upon Conversion shall be admitted to listing and trading on a Primary Stock Exchange or admitted to listing on another regulated, regularly operating, recognised stock exchange or securities market;
|
(i)
|
at all times keep available for issue, free from pre-emptive or other preferential rights, sufficient Ordinary Shares to enable Conversion of the Tier 1 BCNs, and all other rights of subscription and exchange for Ordinary Shares, to be satisfied in full; and
|
(j)
|
where the provisions of Condition 7 require or provide for a determination by an Independent Financial Adviser or a role to be performed by a Settlement Shares Depository, a Settlement Shares Offer Agent and|or a Share Delivery Agent, the Guarantor shall use all reasonable endeavours promptly to appoint such person for such purpose.
|
8.
|
If, on any Interest Payment Date, any payment of interest scheduled to be made on such date is not made by the Issuer in full by reason of Condition 6(h)(i) (such amount not paid, being “Pending Interest”) or by reason of Condition 6(h)(ii),
|
(a)
|
the Guarantor hereby undertakes not to, directly or indirectly, resolve, or recommend to its Shareholders, that any distribution or dividend in cash or in kind (other than in the form of Ordinary Shares) be paid or made on any Ordinary Shares; and
|
(b)
|
the Guarantor hereby undertakes not to, directly or indirectly, redeem, purchase or otherwise acquire any Ordinary Shares other than in relation to (1) transactions in securities effected by or for the account of customers of the Guarantor or any of its Subsidiaries or in connection with the distribution or trading of, or market making in respect of Ordinary Shares securities; (2) the satisfaction by the Guarantor or any of its Subsidiaries of its obligations under any employee benefit plans or similar arrangements with or for the benefit of employees, officers, directors or consultants; (3) a reclassification of the capital stock of the Guarantor or any of its Subsidiaries or the exchange or conversion of one class or series of such capital stock for another class or series of such capital stock; or (4) the purchase of fractional interests in shares of the capital stock of the Guarantor or any of its majority-owned subsidiaries pursuant to the provisions of any security being converted into or exchanged for such capital stock,
|
9.
|
Notwithstanding any reference herein to the Tier 1 BCNs and the Agreements the Guarantor hereby acknowledges and agrees that this Guarantee and the Guarantor’s obligations under this Guarantee shall constitute separate, independent, primary and non accessory guarantee obligations of the Guarantor within the meaning of Article 111 CO and not a mere surety within the meaning of Article 492 et seq. CO and will, in particular, not be affected or discharged by reason of any time or other indulgence granted by the Holders or the winding-up, insolvency or reorganisation of the Issuer. This Guarantee and the Guarantor’s obligations under this Guarantee shall in particular be independent from the legal validity and enforceability of the Holders’ claims under the Tier 1 BCNs and the Guarantor hereby waves all rights of objection and defence arising from the Tier 1 BCNs and the Agreements.
|
10.
|
For so long as the Tier 1 BCNs are outstanding, the Guarantor undertakes that;
|
(a)
|
unless the Guarantor is itself being wound up, it will not permit or take any action that would or might cause, the liquidation, dissolution or winding up of the Issuer; and
|
(b)
|
the Issuer will at all times be a subsidiary of the Guarantor itself or a directly or indirectly wholly-owned subsidiary of the Guarantor; and
|
(c)
|
it will not omit to take any action that enables the Issuer to perform its obligations under the Tier 1 BCNs.
|
11.
|
The Guarantee is governed by Swiss law.
|
12.
|
Terms and expressions not otherwise defined in the Guarantee shall have the same meaning as defined in the Terms of the Tier 1 BCNs.
|
/s/ Susanne Reinhard | /s/ Christian Schmid | ||
Name: Susanne Reinhard
|
Name: Christian Schmid
|
||
Function: Vice President
|
Function: Managing Director
|
||
Receipt acknowledged by Competrol Establishment: | |||
/s/ Nashim Tabhara | /s/ Khalil Kachicho | ||
Name: Nashim Tabhara | Name: Khalil Kachicho | ||
Function: Authorized Signatory | Function: Authorized Signatory | ||
1
|
Form, Denomination, Title and Paid Up Amount
|
2
|
Transfers of Tier 1 BCNs
|
(a)
|
Transfer of Tier 1 BCNs
|
(b)
|
Delivery of New Certificates
|
(c)
|
Transfers Free of Charge
|
(d)
|
Closed Periods
|
(e)
|
Partial Redemption in Respect of Tier 1 BCNs
|
3
|
Status and Subordination of the Tier 1 BCNs
|
(a)
|
Status
|
(b)
|
Subordination
|
(i)
|
Subject as provided below, in the event of an order being made, or an effective resolution being passed, for the liquidation, dissolution or winding-up of the Issuer by reason of bankruptcy or otherwise (except, in any such case, a solvent liquidation, dissolution or winding-up solely for the purposes of a reorganisation, reconstruction or amalgamation of the Issuer or the substitution in place of the Issuer of either a successor in business of the Issuer or CSG, the terms of which reorganisation, reconstruction, amalgamation or substitution (x) have previously been approved by an Extraordinary Resolution and (y) do not provide that the Tier 1 BCNs shall thereby become redeemable or repayable in accordance with these Conditions), the rights and claims of the Holders against the Issuer in respect of or arising under (including any damages awarded for breach of any obligation under) the Tier 1 BCNs shall, subject to any obligations which are mandatorily preferred by law, rank junior to the claims of all holders of unsubordinated obligations of the Issuer and all other subordinated obligations of the Issuer except subordinated obligations of the Issuer in respect of Tier 1 Instruments, at least pari passu with all subordinated obligations of the Issuer in respect of Tier 1 Instruments and senior to the claims of holders of all classes of share capital of the Issuer, provided that, if at any such time a Substitution Date has not occurred but an order has been made or an effective resolution has been passed for the liquidation or winding-up of CSG, any amount payable to Holders shall not exceed the amount per Tier 1 BCN that would be paid on a liquidation distribution out of the assets of CSG had the Tier 1 BCNs and any other obligations ranking pari passu with the Tier 1 BCNs ranked pari passu with Guarantor Parity Obligations (as defined in the Guarantee).
|
(ii)
|
On or after a Substitution Date, where CSG is the new Issuer, in the event of an order being made, or an effective resolution being passed, for the liquidation or winding-up of CSG:
|
(a)
|
prior to the occurrence of a Contingency Event or a Viability Event, the claims of the Holders against CSG in respect of or arising under the Tier 1 BCNs shall rank (i) junior to all claims of CSG Priority Creditors, (ii) at least pari passu with CSG Parity Obligations and (iii) senior to the rights and claims of all holders of CSG Share Capital;
|
(b)
|
on and after the occurrence of a Contingency Event or a Viability Event, the rights and claims of Holders against CSG under the Tier 1 BCNs in respect of any Accrued Conversion Interest shall rank in the manner described in Condition 3(b)(ii)(a) above; or
|
(c)
|
on and after the occurrence of a Contingency Event or a Viability Event and an announcement that CSG is unable to create and issue the Ordinary Shares so as to fulfil the provisions of Conversion set forth in Condition 7(a), the claims of the Holders in respect of the delivery of Ordinary Shares in accordance with Condition 7 will convert to a monetary claim of such Holder against CSG to participate in the liquidation proceeds of CSG with a claim per Tier 1 BCN for a sum equal to that which holders of the number of Ordinary Shares into which such Tier 1 BCNs should have been converted at the then Conversion Price would receive out of the liquidation proceeds of CSG.
|
4
|
Guarantee
|
5
|
Set-off
|
6
|
Interest Calculations
|
(a)
|
Interest on Fixed Rate Tier 1 BCNs
|
(b)
|
Interest on Floating Rate Tier 1 BCNs
|
(i)
|
Interest Payment Dates
|
(ii)
|
Business Day Convention
|
(iii)
|
Floating Rate of Interest for Floating Rate Tier 1 BCNs
|
|
(x)
|
The Floating Rate of Interest for each Interest Accrual Period will, subject as provided below, be either:
|
|
(1)
|
the offered quotation; or
|
|
(2)
|
if required pursuant to Condition 6(b)(iii)(y) below, the arithmetic mean of the offered quotations,
|
|
(y)
|
If the Relevant Screen Page is not available or if Condition 6(b)(iii)(x)(1) above applies and no such offered quotation appears on the Relevant Screen Page or if sub-paragraph (x)(2) above applies and fewer than three such offered quotations appear on the Relevant Screen Page, in each case as at the time specified above, subject as provided below, the Calculation Agent shall request, if the Reference Rate is LIBOR, the principal London office of each of the Reference Banks or, if the Reference Rate is EURIBOR, the principal Euro-zone office of each of the Reference Banks, to provide the Calculation Agent with its offered quotation (expressed as a percentage rate per annum) for the Reference Rate if the Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the Interest Determination Date in question. If two or more of the Reference Banks provide the Calculation Agent with such offered quotations, the Floating Rate of Interest for such Interest Accrual Period shall be the arithmetic mean of such offered quotations as determined by the Calculation Agent.
|
|
(z)
|
If Condition 6(b)(iii)(y) above applies and the Calculation Agent determines that fewer than two Reference Banks are providing offered quotations, subject as provided below, the Floating Rate of Interest shall be the arithmetic mean of the rates per annum (expressed as a percentage) as communicated to (and at the request of) the Calculation Agent by the Reference Banks, or any two or more of them, at which such banks were offered, if the Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the relevant Interest Determination Date, deposits in the Specified Currency for a period equal to that which would have been used for the Reference Rate by leading banks in, if the Reference Rate is LIBOR, the London inter-bank market or, if the Reference Rate is EURIBOR, the Euro-zone inter-bank market, as the case may be, or, if fewer than two of the Reference Banks provide the Calculation Agent with such offered rates, the offered rate for deposits in the Specified Currency for a period equal to that which would have been used for the Reference Rate, or the arithmetic mean of the offered rates for deposits in the Specified Currency for a period equal to that which would have been used for the Reference Rate, at which, if the Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the relevant Interest Determination Date, any one or more banks (which bank or banks is or are in the opinion of the Issuer suitable for such purpose) informs the Calculation Agent it is quoting to leading banks in, if the Reference Rate is LIBOR, the London inter-bank market or, if the Reference Rate is EURIBOR, the Euro-zone inter-bank market, as the case may be, provided that, if the Rate of Interest cannot be determined in accordance with the foregoing provisions of this paragraph, the Floating Rate of Interest shall be determined as at the last preceding Interest Determination Date (though substituting, where a different Margin or Maximum or Minimum Rate of Interest is to be applied to the relevant Interest Accrual Period from that which applied to the last preceding Interest Accrual Period, the Margin or Maximum or Minimum Rate of Interest relating to the relevant Interest Accrual Period, in place of the Margin or Maximum or Minimum Rate of Interest relating to that last preceding Interest Accrual Period).
|
(c)
|
Interest on Fixed/Floating Rate Tier 1 BCNs
|
(d)
|
Accrual of Interest
|
(i)
|
Where a Tier 1 BCN is to be redeemed pursuant to Condition 8(c), 8(d) or 8(e), interest shall, subject as provided in Condition 6(h), accrue up to (but excluding) the due date for redemption, and shall cease to accrue on such Tier 1 BCN on the due date for redemption unless, upon due presentation, payment is improperly withheld or refused, in which event interest shall continue to accrue (both before and after judgment) at the relevant Rate of Interest from time to time in the manner provided in this Condition 6 to the Due Date.
|
(ii)
|
In the case of a Conversion in respect of the Tier 1 BCNs, interest shall, subject as provided in Condition 6(h), accrue on the principal amount of each Tier 1 BCN up to (but excluding) the date of the relevant Contingency Event Notice or, as the case may be, Viability Event Notice, and interest shall cease to accrue on each Tier 1 BCN with effect from the relevant Contingency Event Notice or, as the case may be, Viability Event Notice.
|
(e)
|
Margin, Maximum/Minimum Rates of Interest and Rounding
|
(i)
|
If any Margin is specified in the relevant Pricing Schedule (either (x) generally or (y) in relation to one or more Interest Accrual Periods), an adjustment shall be made to all Rates of Interest, in the case of (x), or the Rates of Interest for the specified Interest Accrual Periods, in the case of (y), calculated in accordance with Condition 6(b) above by adding (if a positive number) or subtracting the absolute value (if a negative number) of such Margin, subject always to the next paragraph.
|
(ii)
|
If any Maximum or Minimum Rate of Interest is specified in the relevant Pricing Schedule, then any Rate of Interest shall be subject to such maximum or minimum, as the case may be.
|
(iii)
|
For the purposes of any calculations required pursuant to these Conditions (unless otherwise specified), (x) all percentages resulting from such calculations shall be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with halves being rounded up), (y) all figures shall be rounded to seven significant figures (with halves being rounded up) and (z) all currency amounts that fall due and payable shall be rounded to the nearest unit of such currency (with halves being rounded up), save in the case of yen, which shall be rounded down to the nearest yen. For these purposes “unit” means the lowest amount of such currency that is legal tender.
|
(f)
|
Calculations
|
(g)
|
Determination and Publication of Rates of Interest and Interest Amounts
|
(h)
|
Cancellation of Interest; Prohibited Interest
|
(i)
|
The Issuer may, at its discretion, elect to cancel all or part of any payment of interest which is otherwise scheduled to be paid on an Interest Payment Date by giving notice of such election to the Holders in accordance with Condition 17, and to the Principal Paying and Conversion Agent, not more than 30 nor less than 10 Business Days prior to the relevant Interest Payment Date. This Condition 6(h)(i) is without prejudice to the provisions of Condition 6(h)(ii) and Condition 6(h)(v).
|
(ii)
|
The Issuer shall be prohibited from making, in whole or in part, any payment of interest on the Tier 1 BCNs on the relevant Interest Payment Date to the extent that on such Interest Payment Date:
|
(a)
|
CSG has an amount of Distributable Profits which is less than the sum of the (i) aggregate amount of such interest payment and (ii) all other payments (other than redemption payments) made by CSG since the date of the Relevant Accounts (i) on the Tier 1 BCNs and (ii) on or in respect of any Tier 1 Instruments or Tier 1 Shares, in each case, excluding any portion of such other payments already accounted for in determining the Distributable Profits and, in each case as necessary, translated into the Share Currency at the relevant Prevailing Rate on or around such Interest Payment Date; and/or
|
(b)
|
the Regulatory Condition is not satisfied or would not be satisfied if such interest payment were made.
|
(iii)
|
If, on any Interest Payment Date, any payment of interest scheduled to be made on such date is not made in full by reason of Condition 6(h)(i) (such amount not paid, being “Pending Interest”) or by reason of Condition 6(h)(ii),
|
(a)
|
the Issuer shall procure that CSG shall not, directly or indirectly, resolve, or recommend to the Shareholders, that any distribution or dividend in cash or in kind (other than in the form of Ordinary Shares) be paid or made on any Ordinary Shares; and
|
(b)
|
the Issuer shall procure that CSG shall not, directly or indirectly, redeem, purchase or otherwise acquire any Ordinary Shares other than in relation to (1) transactions in securities effected by or for the account of customers of CSG or any of its Subsidiaries or in connection with the distribution or trading of, or market making in respect of Ordinary Shares securities; (2) the satisfaction by CSG or any of its Subsidiaries of its obligations under any employee benefit plans or similar arrangements with or for the benefit of employees, officers, directors or consultants; (3) a reclassification of the capital stock of CSG or any of its Subsidiaries or the exchange or conversion of one class or series of such capital stock for another class or series of such capital stock; or (4) the purchase of fractional interests in shares of the capital stock of CSG or any of its majority-owned subsidiaries pursuant to the provisions of any security being converted into or exchanged for such capital stock,
|
(iv)
|
Payments of interest on the Tier 1 BCNs are not cumulative. Notwithstanding any other provision in these Conditions but without prejudice to Condition 6(h)(v), the cancellation or non-payment of any interest payment by virtue of this Condition 6(h) shall not constitute a default for any purpose (including, without limitation, Condition 12(a) and (b)) on the part of the Issuer. Any interest payment not paid by virtue of this Condition 6(h) shall not accumulate or be payable at any time thereafter, and Holders shall have no right thereto.
|
(v)
|
Notwithstanding any other provision in these Conditions, if the ordinary shareholders of CSG resolve to make or pay a distribution or dividend in cash or in kind (other than in the form of Ordinary Shares) on the Ordinary Shares in respect of a financial year or other specified period during which there has arisen any Pending Interest, the Issuer shall, subject as provided below, pay to the Holders, within 5 Business Days of such distribution or dividend being paid or made, an amount equal to the aggregate amount of all Pending Interest which has arisen during such financial year or other specified period. If the Shareholders do not resolve to make or pay a distribution or dividend on the Ordinary Shares as described in this Condition 6(h)(v), no amount shall be payable under this Condition 6(h)(v).
|
(i)
|
Definitions
|
(i)
|
in the case of a currency other than euro, a day (other than a Saturday or Sunday) on which commercial banks and foreign exchange markets settle payments in the principal financial centre for such currency; and/or
|
(ii)
|
in the case of euro, a day on which the TARGET system is operating (a “TARGET Business Day”); and/or
|
(iii)
|
in the case of a currency and/or one or more Business Centres specified in the relevant Pricing Schedule a day (other than a Saturday or a Sunday) on which commercial banks and foreign exchange markets settle payments in such currency in such Business Centre(s) or, if no currency is indicated, generally in each of such Business Centres.
|
(i)
|
if “Actual/Actual” or “Actual/Actual – ISDA” is specified in the relevant Pricing Schedule, the actual number of days in the Calculation Period divided by 365 (or, if any portion of that Calculation Period falls in a leap year, the sum of (A) the actual number of days in that portion of the Calculation Period falling in a leap year divided by 366 and (B) the actual number of days in that portion of the Calculation Period falling in a non-leap year divided by 365);
|
(ii)
|
if “Actual/365 (Fixed)” is specified in the relevant Pricing Schedule, the actual number of days in the Calculation Period divided by 365;
|
(iii)
|
if “Actual/360” is specified in the relevant Pricing Schedule, the actual number of days in the Calculation Period divided by 360;
|
(iv)
|
if “Actual/Actual-ICMA” is specified in the relevant Pricing Schedule,
|
(a)
|
if the Calculation Period is equal to or shorter than the Determination Period during which it falls, the number of days in the Calculation Period divided by the product of (x) the number of days in such Determination Period and (y) the number of Determination Periods normally ending in any year; and
|
(b)
|
if the Calculation Period is longer than one Determination Period, the sum of:
|
|
(x)
|
the number of days in such Calculation Period falling in the Determination Period in which it begins divided by the product of (1) the number of days in such Determination Period and (2) the number of Determination Periods normally ending in any year; and
|
|
(y)
|
the number of days in such Calculation Period falling in the next Determination Period divided by the product of (1) the number of days in such Determination Period and (2) the number of Determination Periods normally ending in any year,
|
(v)
|
if “30/360”, “360/360” or “Bond Basis” is specified in the relevant Pricing Schedule, the number of days in the Calculation Period divided by 360, calculated on a formula basis as follows:
|
Day Count Fraction = | ||
(i)
|
in respect of an Interest Accrual Period, the amount of interest payable per Calculation Amount for that Interest Accrual Period and which, in the case of Fixed Rate Tier 1 BCNs, and unless otherwise specified in the relevant Pricing Schedule, shall mean the Fixed Coupon Amount or Broken Amount specified in the relevant Pricing Schedule as being payable on the Interest Payment Date ending in the Interest Period of which such Interest Accrual Period forms part; and
|
(ii)
|
in respect of any other period, the amount of interest payable per Calculation Amount for that period.
|
(j)
|
Calculation Agent
|
7
|
Conversion
|
(a)
|
Conversion upon a Contingency Event or a Viability Event
|
(i)
|
If a Contingency Event occurs at any time while the Tier 1 BCNs are outstanding and fully paid up, each Tier 1 BCN shall, subject to and as provided in this Condition 7, be redeemed and settled (the “Contingency Event Conversion”) by the delivery of new fully paid Ordinary Shares to the Settlement Shares Depository on behalf of the Holders on the date specified therefor in the Contingency Event Notice, which shall be no more than 20 Business Days following the occurrence of the Contingency Event (the “Contingency Event Conversion Settlement Date”). Subject to Condition 7(c), receipt by the Settlement Shares Depository of the Ordinary Shares shall be a good and complete discharge of the Issuer’s obligations in respect of the Tier 1 BCNs and those of the Guarantor under the Guarantee.
|
(ii)
|
If a Viability Event occurs at any time while the Tier 1 BCNs are outstanding and fully paid up, each Tier 1 BCN shall, subject to and as provided in this Condition 7, be redeemed and settled (the “Viability Event Conversion”) by the delivery of new fully paid Ordinary Shares to the Settlement Shares Depository on behalf of the Holders on the date specified therefor in the Viability Event Notice, which date shall be no more than 20 Business Days following the occurrence of the Viability Event (the “Viability Event Conversion Settlement Date”). Subject to Condition 7(c), receipt by the Settlement Shares Depository of the Ordinary Shares shall be a good and complete discharge of the Issuer’s obligations in respect of the Tier 1 BCNs and those of the Guarantor under the Guarantee.
|
(iii)
|
If a Contingency Event or Viability Event occurs, the Tier 1 BCNs will be converted in whole and not in part as provided below.
|
(iv)
|
Prior to giving the Contingency Event Notice or the Viability Event Notice, the Issuer shall deliver to the Principal Paying and Conversion Agent a certificate signed by two Authorised Signatories of CSG stating that the Contingency Event or, as the case may be, the Viability Event has occurred, and such certificate will be conclusive and binding on the Holders.
|
(v)
|
If a Takeover Event shall occur that is a Qualifying Takeover Event, then, where the relevant Conversion Date falls on or after the New Conversion Condition Effective Date (as defined below), each Tier 1 BCN shall, upon the occurrence of the Contingency Event or, as the case may be, the Viability Event, subject to and as provided in this Condition 7(a) and Condition 7(j), be converted into Approved Entity Shares (as defined below) of the Approved Entity (as defined below).
|
(b)
|
Recourse for Ordinary Shares
|
(c)
|
Accrued Conversion Interest
|
(i)
|
Upon Conversion, the Issuer shall, or shall procure that CSG shall, pay to the Holders the Accrued Conversion Interest (if any) in respect of the Tier 1 BCNs on the relevant Conversion Date.
|
(ii)
|
Payment of any Accrued Conversion Interest will be made by transfer to an account with a bank in the principal financial centre of the Specified Currency or, in the case of a payment in euro, to an account with a bank in a city in which banks have access to the TARGET System, as specified in the relevant Delivery Notice or, as the case may be, as provided below.
|
(iii)
|
If, in the case of a Conversion, a Delivery Notice and the Certificate representing the relevant Tier 1 BCNs are not delivered to the Principal Paying and Conversion Agent on or before the Notice Cut-off Date as required in Condition 7(m) or otherwise, the relevant Delivery Notice shall be treated as null and void and any Accrued Conversion Interest in respect of the relevant Tier 1 BCNs which is due to be paid on the Conversion Date shall be paid on the relevant Conversion Date to the Principal Paying and Conversion Agent for distribution to the relevant Holders in accordance with Condition 9.
|
(d)
|
Conversion Price
|
(a)
|
the Reference Market Price of an Ordinary Share on the fifth Zurich Business Day prior to the date of the relevant Contingency Event Notice or, as the case may be, the Viability Event Notice translated, if necessary, into the Specified Currency at the Exchange Rate;
|
(b)
|
the Floor Price on the fifth Zurich Business Day prior to the date of the Contingency Event Notice or, as the case may be, the Viability Event Notice; and
|
(c)
|
the nominal value of each Ordinary Share on the Share Creation Date (being, at the Issue Date, CHF 0.04) translated, if necessary, into the Specified Currency at the Adjusted Exchange Rate,
|
(i)
|
if the Ordinary Shares to be issued or delivered (if applicable) do not rank for the Dividend (or entitlement) in question, the VWAP on the dates on which the Ordinary Shares shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement; or
|
(ii)
|
if the Ordinary Shares to be issued or delivered (if applicable) do rank for the Dividend (or entitlement) in question, the VWAP on the dates on which the Ordinary Shares shall have been based on a price ex-Dividend (or ex- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement,
|
(e)
|
Adjustments to the Floor Price
|
(i)
|
If and whenever there shall be a consolidation, reclassification or subdivision affecting the number of Ordinary Shares, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such consolidation, reclassification or subdivision by the following fraction:
|
|
A
|
is the aggregate number of Ordinary Shares in issue immediately before such consolidation, reclassification or subdivision, as the case may be; and
|
|
B
|
is the aggregate number of Ordinary Shares in issue immediately after, and as a result of, such consolidation, reclassification or subdivision, as the case may be.
|
(ii)
|
If and whenever CSG shall issue any fully paid Ordinary Shares to the Shareholders by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve) other than (1) where any such Ordinary Shares are or are to be issued instead of the whole or part of a Dividend in cash which the Shareholders would or could otherwise have elected to receive, (2) where the Shareholders may elect to receive a Dividend in cash in lieu of such Ordinary Shares or (3) where any such Ordinary Shares are or are expressed to be issued in lieu of a Dividend (whether or not a cash Dividend equivalent or amount is announced or would otherwise be payable to Shareholders, whether at their election or otherwise), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such issue by the following fraction:
|
|
A
|
is the aggregate number of Ordinary Shares in issue immediately before such issue; and
|
|
B
|
is the aggregate number of Ordinary Shares in issue immediately after such issue.
|
(iii)
|
If and whenever any Capital Distribution shall be made or paid to Shareholders, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the Volume Weighted Average Price of one Ordinary Share on whichever is the earlier of (x) the last dealing day preceding the Effective Date or (y) the dealing day when the amount of the relevant Dividend is announced, or, if the day on which the amount of the relevant Dividend is announced is not a dealing day, the next following dealing day; and
|
|
B
|
is the portion of the Fair Market Value of the aggregate Capital Distribution attributable to one Ordinary Share, with such portion being determined by dividing the Fair Market Value of the aggregate Capital Distribution on the Effective Date by the number of Ordinary Shares entitled to receive the relevant Dividend (or, in the case of a purchase, redemption or buy back of Ordinary Shares or any depositary or other receipts or certificates representing Ordinary Shares by or on behalf of CSG or any Subsidiary of CSG, by the number of Ordinary Shares in issue immediately following such purchase, redemption or buy back, and treating as not being in issue any Ordinary Shares, or any Ordinary Shares represented by depositary or other receipts or certificates, purchased, redeemed or bought back).
|
(a)
|
any Dividend which is expressed by CSG or declared by the Board of Directors of CSG to be a capital distribution, extraordinary dividend, extraordinary distribution, special dividend, special distribution or return of value to shareholders of CSG or any analogous or similar term, in which case the Capital Distribution shall be the Fair Market Value of such Dividend; or
|
(b)
|
any Non-Cash Dividend; or
|
(c)
|
any Cash Dividend (the “Relevant Dividend”) paid or made in respect of a fiscal year of CSG (the “Relevant Fiscal Year”) if the sum of:
|
(i)
|
the Fair Market Value of the Relevant Dividend per Ordinary Share; and
|
(ii)
|
the aggregate of the Fair Market Value per Ordinary Share of any other Cash Dividend or Cash Dividends per Ordinary Share paid or made in respect of the Relevant Fiscal Year (disregarding for such purpose any amount previously determined to be a Capital Distribution in respect of the Relevant Fiscal Year),
|
(iv)
|
If and whenever CSG shall issue Ordinary Shares to Shareholders as a class by way of rights at a price per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share on the Effective Date, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the number of Ordinary Shares in issue on the Effective Date;
|
|
B
|
is the number of Ordinary Shares which the aggregate consideration (if any) receivable for the Ordinary Shares issued by way of rights would purchase at such Current Market Price per Ordinary Share on the Effective Date; and
|
|
C
|
is the number of Ordinary Shares to be issued.
|
(v)
|
If and whenever CSG shall issue any Securities (other than Ordinary Shares) to Shareholders as a class by way of rights or grant to Shareholders as a class by way of rights any options, warrants or other rights to subscribe for or purchase any Securities (including options, warrants or other rights to subscribe for or purchase Ordinary Shares), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the Volume Weighted Average Price of one Ordinary Share on the last dealing day preceding the Effective Date; and
|
|
B
|
is the Fair Market Value on the Effective Date of the portion of the rights attributable to one Ordinary Share.
|
(vi)
|
If and whenever CSG shall issue (otherwise than as mentioned in Condition 7(e)(iv) above) wholly for cash or for no consideration any Ordinary Shares (other than Ordinary Shares issued on conversion of the Tier 1 BCNs or on the exercise of any rights of conversion into, or exchange or subscription for or purchase of, Ordinary Shares) or issue or grant (otherwise than as mentioned in Condition 7(e)(iv) above) wholly for cash or for no consideration any options, warrants or other rights to subscribe for or purchase any Ordinary Shares (other than the Tier 1 BCNs, which term shall for this purpose include any Further Tier 1 BCNs), in each case at a price per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share on the date of the first public announcement of the terms of such issue or grant, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the number of Ordinary Shares in issue immediately before the issue of such Ordinary Shares or the grant of such options, warrants or rights;
|
|
B
|
is the number of Ordinary Shares which the aggregate consideration (if any) receivable for the issue of such Ordinary Shares or, as the case may be, for the Ordinary Shares to be issued or otherwise made available upon the exercise of any such options, warrants or rights, would purchase at such Current Market Price per Ordinary Share; and
|
|
C
|
is the number of Ordinary Shares to be issued pursuant to such issue of such Ordinary Shares or, as the case may be, the maximum number of Ordinary Shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights.
|
(vii)
|
If and whenever CSG or any Subsidiary of CSG or (at the direction or request of or pursuant to any arrangements with CSG or any Subsidiary of CSG) any other company, person or entity (otherwise than as mentioned in Conditions 7(e)(iv), 7(e)(v) or 7(e)(vi) above) shall issue wholly for cash or for no consideration any Securities (other than the Tier 1 BCNs which term shall for this purpose exclude any Further Tier 1 BCNs) which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, Ordinary Shares (or shall grant any such rights in respect of existing Securities so issued) or Securities which by their terms might be redesignated as Ordinary Shares, and the consideration per Ordinary Share receivable upon conversion, exchange, subscription or redesignation is less than 95 per cent. of the Current Market Price per Ordinary Share on the date of the first public announcement of the terms of issue of such securities (or the terms of such grant), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the number of Ordinary Shares in issue immediately before such issue or grant (but where the relevant Securities carry rights of conversion into or rights of exchange or subscription for Ordinary Shares which have been issued, purchased or acquired by CSG or any Subsidiary of CSG (or at the direction or request or pursuant to any arrangements with CSG or any Subsidiary of CSG) for the purposes of or in connection with such issue, less the number of such Ordinary Shares so issued, purchased or acquired);
|
|
B
|
is the number of Ordinary Shares which the aggregate consideration (if any) receivable for the Ordinary Shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription attached to such Securities or, as the case may be, for the Ordinary Shares to be issued or to arise from any such redesignation would purchase at such Current Market Price per Ordinary Share; and
|
|
C
|
is the maximum number of Ordinary Shares to be issued or otherwise made available upon conversion or exchange of such Securities or upon the exercise of such right of subscription attached thereto at the initial conversion, exchange or subscription price or rate or, as the case may be, the maximum number of Ordinary Shares which may be issued or arise from any such redesignation,
|
(viii)
|
“Effective Date” means, in respect of this Condition 7(e)(vii), the date of issue of such Securities or, as the case may be, the grant of such rights.If and whenever CSG or any Subsidiary of CSG or (at the direction or request of or pursuant to any arrangements with CSG or any Subsidiary of CSG) any other company, person or entity shall offer any Securities in connection with which Shareholders as a class are entitled to participate in arrangements whereby such Securities may be acquired by them (except where the Floor Price falls to be adjusted under Conditions 7(e)(ii), (e)(iii), (e)(iv), (e)(vi) or (e)(vii) above (or would fall to be so adjusted if the relevant issue or grant was at less than 95 per cent. of the Current Market Price per Ordinary Share on the relevant dealing day) or under Condition 7(e)(v) above), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately before the Effective Date by the following fraction:
|
|
A
|
is the Current Market Price of one Ordinary Share on the Effective Date; and
|
|
B
|
is the Fair Market Value on the Effective Date of the portion of the relevant offer attributable to one Ordinary Share.
|
(ix)
|
If the Issuer, in consultation with CSG, determines that a reduction to the Floor Price should be made for whatever reason, the Floor Price will be reduced (either generally or for a specified period as notified to Holders) in such manner and with effect from such date as the Issuer, in consultation with CSG, shall determine and notify to the Holders.
|
(A)
|
where the events or circumstances giving rise to any adjustment pursuant to this paragraph (e) have already resulted or will result in an adjustment to the Floor Price or where the events or circumstances giving rise to any adjustment arise by virtue of any other events or circumstances which have already given or will give rise to an adjustment to the Floor Price or where more than one event which gives rise to an adjustment to the Floor Price occurs within such a short period of time that, in the opinion of CSG, a modification to the operation of the adjustment provisions is required to give the intended result, such modification shall be made to the operation of the adjustment provisions as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate to give the intended result;
|
(B)
|
such modification shall be made to the operation of this Tier 1 BCN as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate (i) to ensure that an adjustment to the Floor Price or the economic effect thereof shall not be taken into account more than once and (ii) to ensure that the economic effect of a Dividend is not taken into account more than once;
|
(C)
|
for the avoidance of doubt, the issue of Ordinary Shares upon a Conversion or upon any conversion or exchange in respect of any other Securities or the exercise of any other options, warrants or other rights shall not result in an adjustment to the Floor Price; and
|
(D)
|
at any time when the Ordinary Shares are not admitted to trading on a Recognised Stock Exchange by reason of a Non-Qualifying Takeover Event or otherwise, the Floor Price shall be adjusted as provided above save that for the purposes thereof the Current Market Price of an Ordinary Share, the Volume Weighted Average Price of an Ordinary Share and the Effective Date shall be determined in good faith by an Independent Financial Adviser in such manner as it considers appropriate to ensure that an adjustment to the Floor Price is made which gives the intended same result as if the Ordinary Shares were so admitted to trading.
|
(1)
|
the aggregate consideration receivable or price for Ordinary Shares issued for cash shall be the amount of such cash;
|
(2)
|
(x) the aggregate consideration receivable or price for Ordinary Shares to be issued or otherwise made available upon the conversion or exchange of any Securities shall be deemed to be the consideration or price received or receivable for any such Securities and (y) the aggregate consideration receivable or price for Ordinary Shares to be issued or otherwise made available upon the exercise of rights of subscription attached to any Securities or upon the exercise of any options, warrants or rights shall be deemed to be that part (which may be the whole) of the consideration or price received or receivable for such Securities or, as the case may be, for such options, warrants or rights which are attributed by CSG to such rights of subscription or, as the case may be, such options, warrants or rights or, if no part of such consideration or price is so attributed, the Fair Market Value of such rights of subscription or, as the case may be, such options, warrants or rights as at the relevant date of first public announcement referred to in Conditions 7(e)(vi) or 7(e)(vii), plus in the case of each of (x) and (y) above, the additional minimum consideration receivable or price (if any) upon the conversion or exchange of such Securities, or upon the exercise of such rights or subscription attached thereto or, as the case may be, upon exercise of such options, warrants or rights and (z) the consideration receivable or price per Ordinary Share upon the conversion or exchange of, or upon the exercise of such rights of subscription attached to, such Securities or, as the case may be, upon the exercise of such options, warrants or rights shall be the aggregate consideration or price referred to in (x) or (y) above (as the case may be) divided by the number of Ordinary Shares to be issued upon such conversion or exchange or exercise at the initial conversion, exchange or subscription price or rate;
|
(3)
|
if the consideration or price determined pursuant to (1) or (2) above (or any component thereof) shall be expressed in a currency other than the Share Currency, it shall be converted into the Share Currency at the Prevailing Rate on the relevant Effective Date (in the case of (1) above) or the relevant date of first public announcement (in the case of (2) above);
|
(4)
|
in determining the consideration or price pursuant to the above, no deduction shall be made for any commissions or fees (howsoever described) or any expenses paid or incurred for any underwriting, placing or management of the issue of the relevant Ordinary Shares or Securities or options, warrants or rights, or otherwise in connection therewith; and
|
(5)
|
the consideration or price shall be determined as provided above on the basis of the consideration or price received, receivable, paid or payable, regardless of whether all or part thereof is received, receivable, paid or payable by or to CSG or another entity.
|
(f)
|
Notice of Adjustments to the Floor Price
|
(g)
|
Decision of an Independent Financial Adviser
|
(h)
|
Share Option Schemes
|
(i)
|
Rounding Down and Notice of Adjustment to the Floor Price
|
(j)
|
Qualifying Takeover Event
|
(i)
|
If a Qualifying Takeover Event shall occur, the Tier 1 BCNs shall, where the Conversion Date falls on or after the New Conversion Condition Effective Date, be converted into Approved Entity Shares of the Approved Entity, mutatis mutandis as provided in accordance with this Condition 7, at a Conversion Price that shall be the New Conversion Price.
|
(ii)
|
The New Floor Price shall be subject to adjustment in the circumstances provided in this Condition 7 for the adjustment of the Floor Price (if necessary with such modifications and amendments as an Independent Financial Adviser acting in good faith shall determine to be appropriate) and the Issuer shall give notice to Holders of the New Floor Price and of any such modifications and amendments thereafter.
|
(iii)
|
In the case of a Qualifying Takeover Event:
|
(1)
|
the Issuer shall and will procure that the Guarantor shall, on or prior to the New Conversion Condition Effective Date, enter into such agreements and arrangements, which may include deeds supplemental to these Conditions, and such amendments and modifications to these Conditions and the Guarantee shall be made to ensure that, with effect from the New Conversion Condition Effective Date, the Tier 1 BCNs shall be convertible into, or exchangeable for, Approved Entity Shares of the Approved Entity, mutatis mutandis in accordance with, and subject to, this Condition 7 (as may be so supplemented, amended or modified) at the New Conversion Price;
|
(2)
|
the Issuer shall, where the Conversion Date falls on or after the New Conversion Condition Effective Date, procure the issue and/or delivery of the relevant number of Approved Entity Shares in the manner provided in this Condition 7, as may be amended or modified as provided above.
|
(iv)
|
Within 10 business days following the occurrence of a Takeover Event, the Issuer shall give notice thereof in accordance with Condition 17 to the Holders (a “Takeover Event Notice”).
|
(1)
|
the identity of the Acquiror;
|
(2)
|
whether the Takeover Event is a Qualifying Takeover Event or a Non-Qualifying Takeover Event;
|
(3)
|
in the case of a Qualifying Takeover Event, if determined at such time, the New Floor Price; and
|
(4)
|
if applicable, the New Conversion Condition Effective Date.
|
(v)
|
“Acquiror” means the person which, following a Takeover Event, controls CSG.
|
(i)
|
the Reference Market Price of the Approved Entity Shares on the fifth Zurich Business Day prior to the date of the relevant Contingency Event Notice or Viability Event Notice (translated, if necessary, into the Specified Currency at the Prevailing Rate on the relevant Business Day) (and where references in the definition of “Reference Market Price” and “VWAP” to “Ordinary Shares” shall be construed as a reference to the Approved Entity Shares and in the definition of “dealing day”, reference to the “Primary Stock Exchange” shall be to the relevant Recognised Stock Exchange); and
|
(ii)
|
the New Floor Price on the fifth Zurich Business Day prior to such Contingency Event Notice or Viability Event Notice translated, if necessary, into the Specified Currency at the Prevailing Rate on such Business Day.
|
NFP = EFPx | VWAPAES | |
VWAPOS |
|
NFP
|
is the New Floor Price.
|
|
EFP
|
is the Floor Price in effect on the dealing day immediately prior to the New Conversion Condition Effective Date.
|
|
VWAPAES
|
means the average of the Volume Weighted Average Price of the Approved Entity Shares (translated, if necessary, into the Specified Currency at the Prevailing Rate on the relevant dealing day) on each of the five dealing days ending on the dealing day prior to the closing date of the Takeover Event (and where references in the definition of “Volume Weighted Average Price” to “Ordinary Shares” shall be construed as a reference to the Approved Entity Shares and in the definition of “dealing day”, references to the “Primary Stock Exchange” shall be to the relevant Recognised Stock Exchange).
|
|
VWAPOS
|
is the average of the Volume Weighted Average Price of the Ordinary Shares on each of the five dealing days ending on the dealing day immediately prior to the closing date of the Takeover Event.
|
(i)
|
the Acquiror is an Approved Entity; and
|
(ii)
|
the New Conversion Condition is satisfied.
|
(k)
|
Procedure for Settlement and Delivery of Ordinary Shares on Conversion
|
(l)
|
Fractions
|
(m)
|
Procedure for Delivery in respect of a Conversion
|
(i)
|
The Issuer, with the assistance of the Share Delivery Agent, shall procure that on or prior to the Conversion Date, CSG delivers to the Settlement Shares Depository such number of Ordinary Shares as is required to satisfy in full the Issuer’s obligation to deliver Ordinary Shares in respect of the Conversion of the aggregate amount of Tier 1 BCNs on the Conversion Date. Receipt by the Settlement Shares Depository of such Ordinary Shares shall be a good and complete discharge of the Issuer’s and CSG’s obligations in respect of the Tier 1 BCNs.
|
(ii)
|
In order to obtain delivery of the relevant Ordinary Shares upon a Conversion from the Settlement Shares Depository, the relevant Holder must deliver a duly completed Delivery Notice, together with the relevant Certificates representing the Tier 1 BCNs held by it, to the specified office of any Paying and Conversion Agent no later than 5 Business Days (in the relevant place of delivery) prior to the relevant Conversion Date (the “Notice Cut-off Date”).
|
(iii)
|
Subject to the making of a Settlement Shares Offer and as otherwise provided herein, the Principal Paying and Conversion Agent shall give instructions to the Settlement Shares Depository for the relevant Ordinary Shares to be delivered by the Settlement Shares Depository on the Conversion Date in accordance with the instructions given in the relevant Delivery Notice, provided that such duly completed Delivery Notice and the relevant Certificate representing the Tier 1 BCNs have been so delivered not later than the Notice Cut-off Date.
|
(iv)
|
If a duly completed Delivery Notice and relevant Certificate representing any Tier 1 BCN is not delivered to the specified office of a Paying and Conversion Agent on or before the Notice Cut-off Date, then at any time following the Notice Cut-off Date and prior to the 10th Business Day after the Conversion Date the Issuer may in its sole and absolute discretion (and the relevant Holders of such Tier 1 BCNs shall be deemed to agree thereto), elect to appoint a person (the “Selling Agent”) to procure that all Ordinary Shares held by the Settlement Shares Depository in respect of which no duly completed Delivery Notice and Certificate representing the Tier 1 BCNs have been delivered on or before the Notice Cut-off Date as aforesaid or in respect of which any Holder is otherwise not entitled to be admitted to the register of Shareholders shall be sold by or on behalf of the Selling Agent as soon as reasonably practicable. Subject to the deduction by or on behalf of the Selling Agent of any amount payable in respect of its liability to taxation and the payment of any capital, stamp, issue, registration and/or transfer taxes and duties (if any) and any fees or costs incurred by or on behalf of the Selling Agent in connection with the issue, allotment and sale thereof, the net proceeds of sale, converted into the Specified Currency at the Prevailing Rate on the Notice Cut-off Date, if necessary, shall as soon as reasonably practicable be distributed rateably to the relevant Holders in accordance with Condition 9 or in such other manner and at such time as the Issuer or CSG shall determine and notify to the Holders.
|
(v)
|
Any Delivery Notice shall be irrevocable. Failure properly to complete and deliver a Delivery Notice and deliver the relevant Certificate representing the Tier 1 BCNs may result in such Delivery Notice being treated as null and void and the Issuer shall be entitled to procure the sale of any applicable Ordinary Shares to which the relevant Holder may be entitled in accordance with Condition 7(m)(iv) above. Any determination as to whether any Delivery Notice has been properly completed and delivered as provided in this Condition 7 shall be made by the Issuer in its sole discretion, acting in good faith, and shall, in the absence of manifest error, be conclusive and binding on the relevant Holders.
|
(vi)
|
In respect of a Contingency Event Conversion only, following receipt by the Settlement Shares Depository of the Ordinary Shares as described above, which, subject to Condition 7(c), shall be a good and complete discharge of the Issuer’s obligations in respect of the Tier 1 BCNs, the Issuer may, in its sole and absolute discretion, appoint a placement agent (the “Settlement Shares Offer Agent”) acting on behalf, and for the accounts, of the Holders to conduct an offering of the Ordinary Shares to which the Holders are otherwise entitled (a “Settlement Shares Offer”). In the relevant Contingency Event Notice, the Issuer shall notify whether it will appoint such Settlement Shares Offer Agent to conduct such a Settlement Shares Offer. If it does so appoint a Settlement Shares Offer Agent, CSG will instruct the Settlement Shares Depository to deliver the relevant Ordinary Shares to or to the order of the Settlement Shares Offer Agent for this purpose prior to the end of the Offer Settlement Period. Such Settlement Shares Offer shall be made at a net price per Ordinary Share, which, translated into the Specified Currency at the Prevailing Rate at the date of the Contingency Event Notice, is equal to or above the Conversion Price, to some or, subject to applicable laws and regulations and to such an offer being practicable in the opinion of the Issuer and CSG in the Offer Settlement Period (as defined below), all shareholders of CSG on the record date of the Contingency Event Notice then eligible to participate in such offer. Any such Settlement Shares Offer shall be completed no later than 20 Business Days after the occurrence of the Contingency Event (the “Offer Settlement Period”). Neither CSG, the Issuer nor the Settlement Shares Depository shall incur any liability whatsoever to the Holders in respect of the appointment of such Settlement Shares Offer Agent or its conduct, save for cases of gross negligence or wilful intent.
|
(n)
|
Taxes and Duties
|
(o)
|
Delivery
|
(p)
|
Ordinary Shares
|
(q)
|
Purchase or Redemption of Ordinary Shares
|
(r)
|
Covenants
|
(i)
|
(other than in connection with a Reorganisation) not issue or pay up any Securities, in either case by way of capitalisation of profits or reserves, other than:
|
(1)
|
by the issue of fully paid Ordinary Shares or other Securities to Shareholders and other holders of shares in the capital of CSG which, by their terms, entitle the holders thereof to receive Ordinary Shares or other shares or Securities on a capitalisation of profits or reserves; or
|
(2)
|
by the issue of Ordinary Shares paid up in full (in accordance with applicable law) and issued wholly, ignoring fractional entitlements, in lieu of the whole or part of a Dividend in cash; or
|
(3)
|
by the issue of fully paid equity share capital (other than Ordinary Shares) to the holders of equity share capital of the same class and other holders of shares in the capital of CSG which, by their terms, entitle the holders thereof to receive equity share capital (other than Ordinary Shares); or
|
(4)
|
by the issue of Ordinary Shares or any equity share capital to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of CSG or any of its Subsidiaries or any associated company or to trustees or nominees to be held for the benefit of any such person, in any such case pursuant to an employee, director or executive share or option scheme whether for all employees, directors, or executives or any one or more of them,
|
(ii)
|
not modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation but so that nothing in this Condition 7(r)(ii) shall prevent:
|
(1)
|
any consolidation, reclassification or subdivision of the Ordinary Shares; or
|
(2)
|
any modification of such rights which is not materially prejudicial to the interests of the Holders as determined in good faith by an Independent Financial Adviser;
|
(iii)
|
procure that no Securities (whether issued by CSG or any Subsidiary of CSG or procured by CSG or any Subsidiary of CSG to be issued or issued by any other person pursuant to any arrangement with CSG or any Subsidiary of CSG) issued without rights to convert into, or exchange or subscribe for, Ordinary Shares shall subsequently be granted such rights exercisable at a consideration per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share at the close of business on the last dealing day preceding the date of the first public announcement of the proposed inclusion of such rights unless the same gives rise (or would, but for the provisions of Condition 7(i) relating to roundings and minimum adjustments or the carry forward of adjustments, give rise) to an adjustment to the Floor Price and that at no time shall there be in issue Ordinary Shares of differing nominal values, save where such Ordinary Shares have the same economic rights;
|
(iv)
|
not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on a Conversion, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
|
(v)
|
not reduce its issued share capital, share premium account, capital redemption reserve, or any uncalled liability in respect thereof, or any non-distributable reserves, except where the reduction is permitted by applicable law and results in (or would, but for the provisions of Condition 7(i) relating to roundings or the carry forward of adjustments, result in) an adjustment to the Floor Price or is otherwise taken into account for the purposes of determining whether or not such an adjustment should be made;
|
(vi)
|
in the event of a Reorganisation, take (or shall procure that there is taken) all necessary action to ensure that, immediately after completion of the relevant proceedings, such amendments are made to these Conditions as are necessary to ensure that the Tier 1 BCNs may be converted into or exchanged for ordinary shares or units or the equivalent in Newco mutatis mutandis in accordance with and subject to these Conditions and the ordinary shares or units or the equivalent of Newco are listed and admitted to trading on a Recognised Stock Exchange;
|
(vii)
|
issue, allot and/or deliver Ordinary Shares upon Conversion subject to and as provided in this Condition 7;
|
(viii)
|
save following a Non-Qualifying Takeover Event, use all reasonable endeavours to ensure that its issued and outstanding Ordinary Shares and the Ordinary Shares or, as appropriate, Approved Entity Shares issued upon Conversion shall be admitted to listing and trading on a Primary Stock Exchange or admitted to listing on another regulated, regularly operating, recognised stock exchange or securities market;
|
(ix)
|
at all times keep available for issue, free from pre-emptive or other preferential rights, a sufficient number of Ordinary Shares to enable Conversion of the Tier 1 BCNs, and all other rights of subscription and exchange for Ordinary Shares, to be satisfied in full; and
|
(x)
|
where the provisions of this Condition 7 require or provide for a determination by an Independent Financial Adviser or a role to be performed by a Settlement Shares Depository, a Settlement Shares Offer Agent and/or a Share Delivery Agent, CSG shall use all reasonable endeavours promptly to appoint such person for such purpose.
|
8
|
Redemption, Substitution, Variation and Purchase
|
(a)
|
No Fixed Redemption Date
|
(b)
|
Conditions to Redemption, Substitution, Variation and Purchase
|
(c)
|
Optional Redemption
|
(d)
|
Redemption due to Taxation
|
(e)
|
Redemption for Capital Event
|
(f)
|
No redemption following a Contingency Event or Viability Event
|
(g)
|
Purchases
|
(h)
|
Substitution or Variation upon a Capital Event or a Tax Event
|
(i)
|
Cancellation
|
9
|
Payments
|
(a)
|
Tier 1 BCNs
|
(i)
|
Payments of principal and premium (if any) to be made to Holders in respect of Tier 1 BCNs and payments of accrued interest payable on a redemption of Tier 1 BCNs (other than on an Interest Payment Date) and payment of any Accrued Conversion Interest that is to be paid in accordance with this Condition 9 shall, in each case, be made against presentation and surrender of the relevant Certificates at the specified office of any of the Transfer Agents or of the Registrar and in the manner provided in (ii) below.
|
(ii)
|
Payments of interest to be made to Holders in respect of Tier 1 BCNs due on an Interest Payment Date shall be paid to the person shown on the Register at the close of business on the seventh day before the due date for payment thereof (the “Record Date”).
|
(iii)
|
All such payments shall be made in the relevant currency by transfer to an account in the relevant currency maintained by the payee with a bank.
|
(iv)
|
Payments of all other amounts other than as referred to in (i) and (ii) will be made as provided in these Conditions.
|
(b)
|
Payments subject to Fiscal Laws
|
(c)
|
Appointment of Agents
|
(d)
|
Non-Business Days
|
(i)
|
(in the case of a payment in a currency other than euro) where payment is to be made by transfer to an account maintained with a bank in the relevant currency on which foreign exchange transactions may be carried on in the relevant currency in the principal financial centre of the country of such currency; or
|
(ii)
|
(in the case of a payment in euro) which is a TARGET Business Day.
|
10
|
Taxation
|
(a)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN by reason of the Holder having some connection with a Tax Jurisdiction other than the mere holding of such Tier 1 BCN; or
|
(b)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment more than 30 days after the Due Date (as defined below) except to the extent that the Holder would have been entitled to such additional amounts on presenting the same for payment on such thirtieth day assuming that day to have been a business day (as defined in Condition 9(d)); or
|
(c)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is imposed on a payment to an individual and is (A) required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive, (B) required to be made pursuant to the Agreement between the European Community and the Confederation of Switzerland dated as of 26 October 2004 (the “Swiss Savings Tax Agreement”) providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, the Swiss Savings Tax Agreement, (C) required to be made pursuant to agreements between Guernsey and the EU Member States (the “Guernsey Savings Tax Agreements”) providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such Guernsey Savings Tax Agreements, or (D) required to be made pursuant to any agreements between the European Community and other countries or territories providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreements; or
|
(d)
|
any such taxes, duties, assessments or other governmental charges imposed on any other person than the Issuer and CSG, including any Paying and Conversion Agent in any jurisdiction; or
|
(e)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting the relevant Tier 1 BCN to another Paying and Conversion Agent in a Member State of the European Union; or
|
(f)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is required by the Swiss Federal Withholding Tax Code of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer vom 13 Oktober 1965 as amended from time to time); or
|
(g)
|
any combination of two or more items (a) to (f) above.
|
11
|
Prescription
|
12
|
Events of Default
|
(a)
|
Events of Default relating to the Issuer
|
(i)
|
Events of Default
|
|
(x)
|
default is made for a period of 10 days or more in the payment of any principal or premium (if any) due or 30 days or more in the payment of any interest due in respect of the Tier 1 BCNs or any of them; or
|
|
(y)
|
an order is made or a resolution is passed for the winding-up, dissolution or liquidation of the Issuer or the Guarantor (other than a winding-up which has been approved previously by an Extraordinary Resolution of the Holders).
|
(ii)
|
Proceedings for Winding-up
|
(iii)
|
Enforcement
|
(iv)
|
Extent of Holder’s remedy
|
(b)
|
Events of Default relating to CSG following a Substitution Date
|
(i)
|
CSG fails to make any payment of principal in respect of the Tier 1 BCNs for a period of 10 days or more after the date such payment is due, or CSG fails to make any payment of interest in respect of the Tier 1 BCNs for a period of 30 days or more after the date on which such payment is due;
|
(ii)
|
an involuntary case or other proceeding shall be commenced against CSG, with respect to CSG or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of CSG or for any substantial part of the property and assets of CSG, and such involuntary case or other proceedings shall remain undismissed and unstayed for a period of 60 days, except that the issuance of a writ of payment (Zahlungsbefehl) under the Swiss debt enforcement and bankruptcy laws shall not constitute such involuntary case or proceeding for the purpose of this Condition 12(b); or an order for relief shall be entered against CSG for the purpose of this Condition 12(b); or an order for relief shall be entered against CSG under any bankruptcy, insolvency or other similar law now or hereafter in effect; or
|
(iii)
|
CSG (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of CSG for all or substantially all of the property and assets of CSG, or (iii) effects any general assignment for the benefit of creditors.
|
13
|
Meetings of Holders, Modification and Substitution
|
(a)
|
Meetings of Holders
|
(b)
|
Modifications
|
(c)
|
Substitution upon Reorganisation
|
(d)
|
Substitution
|
14
|
Currency Indemnity
|
15
|
Replacement of Tier 1 BCNs and Certificates
|
16
|
Further Issues
|
17
|
Notices
|
18
|
Definitions
|
(i)
|
have economic terms not materially less favourable to a Holder thereof than the Conditions of the Tier 1 BCNs (as reasonably determined by the Issuer, and provided that a certification to such effect of the Authorised Signatories shall have been delivered to the Principal Paying and Conversion Agent prior to the issue of the relevant securities), provided that such securities (1) contain terms such that they remain or become, as the case may be, securities which are eligible wholly or partly to be treated as Buffer Capital under National Regulations and/or Additional Tier 1 Capital under BIS Regulations; (2) include terms which provide for the same Interest Rate and principal from time to time applying to the Tier 1 BCNs; (3) rank pari passu with the Guarantee; and (4) preserve any existing rights under these Conditions to any accrued but unpaid interest which has not been satisfied; and
|
(ii)
|
where the Tier 1 BCNs which have been substituted or varied were listed immediately prior to their substitution or variation, the relevant securities are listed on (i) the Luxembourg Euro MTF Market or (ii) such other internationally recognised stock exchange as selected by the Issuer; and
|
(iii)
|
where the Tier 1 BCNs which have been substituted or varied were rated by a Rating Agency immediately prior to their substitution or variation, each such Rating Agency has ascribed, or announced its intention to ascribe and publish, an equal or higher rating to the relevant securities;
|
(i)
|
if the Ordinary Shares to be issued or delivered do not rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the Ordinary Shares shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement; or
|
(ii)
|
if the Ordinary Shares to be issued or delivered do rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the Ordinary Shares shall have been based on a price ex-Dividend (or ex- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the Fair Market Value of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement,
|
(i)
|
where: (1) a Dividend in cash is announced which is to be, or may at the election of a Shareholder or Shareholders be, satisfied by the issue or delivery of Ordinary Shares or other property or assets, or where a capitalisation of profits or reserves is announced which is to be, or may at the election of a Shareholder or Shareholders be, satisfied by the payment of cash, then the Dividend or capitalisation in question shall be treated as a Cash Dividend of an amount equal to the greater of (i) the Fair Market Value of such cash amount and (ii) the Current Market Price of such Ordinary Shares as at the first date on which the Ordinary Shares are traded ex- the relevant Dividend on the Primary Stock Exchange or, as the case may be, the record date or other due date for establishment of entitlement in respect of the relevant capitalisation or, as the case may be, the Fair Market Value of such other property or assets as at the date of the first public announcement of such Dividend or capitalisation on the Primary Stock Exchange or, if later, the date on which the number of Ordinary Shares (or amount of such other property or assets, as the case may be) which may be issued or delivered is determined or (2) there shall be any issue of Ordinary Shares by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve) where such issue is or is expressed to be in lieu of a Dividend (whether or not a cash Dividend equivalent or amount is announced or would otherwise be payable to Shareholders, whether at their election or otherwise), the Dividend or capitalisation in question shall be treated as a Cash Dividend of an amount equal to the Current Market Price of such Ordinary Shares as at the first date on which the Ordinary Shares are traded ex- the relevant capitalisation on the Primary Stock Exchange or, as the case may be, the record date or other due date for establishment of entitlement in respect of the relevant capitalisation or, in any such case, if later, the date on which the number of Ordinary Shares to be issued or delivered is determined;
|
(ii)
|
any issue of Ordinary Shares falling within Condition 7(e)(ii) shall be disregarded;
|
(iii)
|
a purchase or redemption or buy back of share capital of CSG by or on behalf of CSG or any of its Subsidiaries shall not constitute a Dividend unless, in the case of a purchase or redemption or buy back of Ordinary Shares by or on behalf of CSG or any of its Subsidiaries, the weighted average price per Ordinary Share (before expenses) on any one day (a “Specified Share Day”) in respect of such purchases or redemptions or buy backs (translated, if not in the Share Currency, into the Share Currency at the Prevailing Rate on such day) exceeds by more than 5 per cent. the average of the daily Volume Weighted Average Price of an Ordinary Share on the five dealing days immediately preceding the Specified Share Day or, where an announcement (excluding, for the avoidance of doubt for these purposes, any general authority for such purchases, redemptions or buy backs approved by a general meeting of Shareholders or any notice convening such a meeting of Shareholders) has been made of the intention to purchase, redeem or buy back Ordinary Shares at some future date at a specified price or where a tender offer is made, on the five dealing days immediately preceding the date of such announcement or the date of first public announcement of such tender offer (and regardless of whether or not a price per Ordinary Share, a minimum price per Ordinary Share or a price range or formula for the determination thereof is or is not announced at such time), as the case may be, in which case such purchase, redemption or buy back shall be deemed to constitute a Dividend in the Share Currency in an amount equal to the amount by which the aggregate price paid (before expenses) in respect of such Ordinary Shares purchased, redeemed or bought back by CSG or, as the case may be, any of its Subsidiaries (translated where appropriate into the Share Currency as provided above) exceeds the product of (i) 105 per cent. of the daily Volume Weighted Average Price of an Ordinary Share determined as aforesaid and (ii) the number of Ordinary Shares so purchased, redeemed or bought back;
|
(iv)
|
if CSG or any of its Subsidiaries shall purchase, redeem or buy back any depositary or other receipts or certificates representing Ordinary Shares, the provisions of paragraph (iii) above shall be applied in respect thereof in such manner and with such modifications (if any) as shall be determined in good faith by an Independent Financial Adviser;
|
(v)
|
where a dividend or distribution is paid or made to Shareholders pursuant to any plan implemented by CSG for the purpose of enabling Shareholders to elect, or which may require Shareholders, to receive dividends or distributions in respect of the Ordinary Shares held by them from a person other than, or in addition to, CSG, such dividend or distribution shall for the purposes of Condition 7 be treated as a dividend or distribution made or paid to Shareholders by CSG, and the foregoing provisions of this definition and the provisions of Condition 7, including references to CSG paying or making a dividend, shall be construed accordingly, and any such determination shall be made on a gross basis and disregarding any withholding or deduction required to be made on account of tax, and disregarding any associated tax credit; and
|
(vi)
|
a dividend or distribution that is a Spin-Off shall be deemed to be a Non Cash Dividend paid or made by CSG;
|
(i)
|
a distribution of Spin-Off Securities by CSG to Shareholders as a class; or
|
(ii)
|
any issue, transfer or delivery of any property or assets (including cash or shares or other securities of or in or issued or allotted by any entity) by any entity (other than CSG) to Shareholders as a class or, in the case of or in connection with a Reorganisation, Existing Shareholders as a class (but excluding the issue and allotment of ordinary shares (or depositary or other receipts or certificates representing such ordinary shares) by Newco to Existing Shareholders as a class), pursuant in each case to any arrangements with CSG or any of its Subsidiaries;
|
19
|
Governing Law and Jurisdiction
|
1
|
Issuer:
|
Credit Suisse Group (Guernsey) II Limited
|
|
2
|
Guarantor:
|
Credit Suisse Group AG
|
|
3
|
Series Number:
|
1
|
|
4
|
Specified Currency or Currencies:
|
U.S.$
|
|
5
|
Aggregate Nominal Amount:
|
||
(i) |
Series:
|
U.S.$3,445,000,000
|
|
(ii) |
Tranche:
|
1
|
|
6
|
(i) |
Specified Denomination:
|
U.S.$200,000
|
(ii) |
Calculation Amount:
|
U.S.$200,000
|
|
(iii) |
Nil Paid on Issue Date:
|
Yes; the Holder of the Tier 1 BCN is required to pay up the principal amount of each Tier 1 BCN on the Paid Up Date as further described below
|
|
7
|
Issue Date:
|
14 February 2011
|
|
8
|
Interest Commencement Date:
|
Issue Date
|
|
9
|
Interest Basis:
|
Fixed/Floating Rate (further particulars specified below)
|
|
10
|
Redemption/Payment Basis:
|
100 per cent. of Principal Amount
|
|
11
|
Change of Interest or Payment Basis:
|
Not applicable
|
|
PROVISIONS RELATING TO INTEREST PAYABLE
|
|||
12
|
Fixed Rate Note Provisions
|
Not applicable
|
|
13
|
Fixed/Floating Rate Provisions
|
Applicable
|
|
(i) |
Fixed Rate of Interest:
|
9.5 per cent. per annum payable annually in arrear until the First Interest Payment Date following the First Optional Redemption Date. Thereafter, as provided in (ii) below.
|
|
(ii) |
Floating Rate of Interest:
|
The aggregate of 6.64 per cent. and the 6 month US Dollar LIBOR rate.
|
|
(iii) |
Fixed Interest Rate Period:
|
From the Issue Date to (and including) the First Interest Payment Date following the First Optional Redemption Date
|
|
(iv) |
Floating Interest Rate Period:
|
From (but excluding) the First Interest Payment Date following the First Optional Redemption Date to the date of any redemption of any of the Tier 1 BCNs
|
(v) |
Interest Payment Date(s):
|
14 February in each year commencing on 14 February 2012 during the Fixed Interest Period and 14 February and 14 August in each year during the Floating Interest Rate Period adjusted during the Floating Interest Rate Period in accordance with the Modified Following Business Day Convention
|
|
(vi) |
Fixed Coupon Amount(s):
|
To be calculated in accordance with Condition 6(f)
|
|
(vii) |
Broken Amount(s):
|
To be calculated according to Condition 6(f)
|
|
(viii) |
Day Count Fraction:
|
30/360 (Eurobond basis)during the Fixed Interest Note Period and Actual/360 during the Floating Rate Period.
|
|
(ix) |
Determination Dates:
|
Not applicable
|
|
(x) |
Other terms relating to the method of calculating interest for Fixed Rate Notes:
|
Not Applicable
|
|
14
|
Floating Rate Note Provisions
|
Not Applicable
|
|
PROVISIONS RELATING TO CONVERSION
|
|||
15
|
Floor Price (subject to adjustment as provided in the Conditions)
|
U.S.$20.00
|
|
PROVISIONS RELATING TO REDEMPTION
|
|||
16
|
Early Redemption
|
||
First Optional Redemption Date:
|
Fifth anniversary of the Paid Up Date
|
||
Other optional redemption dates:
|
Each Interest Payment Date after the First Optional Redemption Date
|
||
Optional Redemption Amount:
|
U.S.$200,000 per Specified Denomination
|
||
17
|
Redemption due to Taxation
|
||
Tax Redemption Amount:
|
Make Whole Redemption Price
|
||
Tax redemption dates:
|
At any time and in accordance with Condition 8(d)
|
||
Make Whole Redemption Price:
|
"Make Whole Redemption Price" means, in respect of each Tier 1 BCN, (a) the principal amount of such Tier 1 BCN or, if it is higher and the relevant date fixed for redemption falls prior to the First Optional Redemption Date, (b) the amount equal to the sum of the present value of the principal amount of such Tier 1 BCN, together with the present values of the scheduled Interest Payments (assuming for this purpose the relevant Interest Payments are not cancelled in accordance with the Conditions) from the relevant date fixed for redemption to the First Optional Redemption Date, in each case discounted to such redemption date in a manner consistent with customary market practice at the Relevant Discount Rate.
|
"Relevant Discount Rate" means 3 per cent. plus the Mid Market Swap Rate as determined by the Calculation Agent at or around 11.00 a.m. (CET) on the third Zurich Business Day preceding the relevant date fixed for redemption.
"Mid Market Swap Rate" means the mid market USD swap rate Libor basis for the maturity falling most closely to the First Optional Redemption Date appearing on the relevant Bloomberg page (or such other page as may replace that page on Bloomberg, or such other page as may be nominated by the person providing or sponsoring the information appearing there for the purposes of displaying comparable rates).
|
|||
18
|
Redemption for Capital Event
|
||
Capital Event Redemption Amount:
|
Make Whole Redemption Price
|
||
Capital Event redemption dates:
|
At any time and in accordance with Condition 8(e)
|
||
GENERAL PROVISIONS APPLICABLE TO THE NOTES
|
|||
19
|
Financial Centre(s) or other special provisions relating to payment dates:
|
Zurich
|
|
20
|
Ratings:
|
None on Issue Date; Fitch Ratings expected from Paid Up Date
|
|
21
|
Listing:
|
None. The Issuer will use its best endeavours to apply for a listing on or as soon as reasonably practicable following the Paid Up Date.
|
|
22
|
Paid Up Date:
|
“Paid Up Date” shall be the date determined by the Issuer in consultation with CSG that is the later to occur of (a) 23 October 2013 and (b) seven business days in Zurich and Qatar after the first date on which all of the Paying Up Conditions have been satisfied or CSG has waived some of the Paying Up Conditions (it being understood that (iii) of the Paying Up Conditions cannot be waived).
|
23
|
Paying Up Conditions:
|
“Paying Up Conditions” means all of the following conditions:
(i) the introduction and effective application of any National Regulations which require or will require CSG or the Group to maintain Buffer Capital (whether or not the requirement to maintain Buffer Capital commences from a later date);
(ii) confirmation to CSG from its Regulator that the Tier 1 BCNs are or will be eligible in their entirety to be treated as Buffer Capital under National Regulations and as Additional Tier 1 Capital under BIS Regulations;
(iii) CSG having obtained all required consents and approvals from its shareholders, its Regulator and any other competent authority, in respect of the paying up of the Tier 1 BCNs to their principal amount, the contingent issuance of Ordinary Shares in relation to any Conversion of the Tier 1 BCNs and all necessary matters associated therewith;
(iv) no event or circumstance existing which, as at such time, would entitle the Issuer to exercise its right (subject to the approval of the Regulator if and as required) to redeem the Tier 1 BCNs pursuant to Conditions 8(d) or 8(e); and
(v) no Event of Default having occurred in respect of the Tier 1 BCNs, and the Issuer’s obligations under the Tier 1 BCNs, and CSG’s obligations under the Guarantee, being legal, valid, binding and enforceable obligations of the Issuer and CSG, respectively.
|
|
1
|
In this Schedule:
|
1.1
|
references to a meeting are to a meeting of all Holders and include, unless the context otherwise requires, any adjournment;
|
1.2
|
“agent” means a proxy for, or representative of, a Holder; and
|
1.3
|
references to persons representing a proportion of the Tier 1 BCNs are to Holders or agents holding or representing in the aggregate at least that proportion in principal amount of the Tier 1 BCNs for the time being outstanding.
|
2
|
A proxy or representative may be appointed in the following circumstances:
|
2.1
|
A Holder may, by an instrument in writing in the English language (a “form of proxy”) signed by the Holder or, in the case of a corporation, executed under its common seal or signed on its behalf by an attorney or a duly authorised officer of the corporation and delivered to the specified office of the Registrar or the Transfer Agent not less than 48 hours before the time fixed for the relevant meeting, appoint the person (a “proxy”) to act on his or its behalf in connection with any meeting of the Holders and any adjourned such meeting.
|
2.2
|
Any Holder which is a corporation may, by delivering to any Agent, not later than 48 hours before the time fixed for any meeting, a resolution of its directors or other governing body, authorise any person to act as its representative (a “representative”) in connection with any meeting of the Holders and any adjourned such meeting.
|
2.3
|
Any proxy appointed pursuant to sub-paragraph 2.1 above or representative appointed pursuant to sub-paragraph 2.2 above shall so long as such appointment remains in full force be deemed, for all purposes in connection with the relevant meeting or adjourned meeting of the Holders, to be the Holder to which such appointment relates and the Holder of the Tier 1 BCNs shall be deemed for such purposes not to be the Holder or owner, respectively.
|
3
|
A meeting shall, subject to the Conditions and without prejudice to any powers conferred on other persons by this Schedule, have power by Extraordinary Resolution:
|
3.1
|
to sanction any proposal by the Issuer or any modification, abrogation, variation or compromise of, or arrangement in respect of, the rights of the Holders against the Issuer, whether or not those rights arise under the Tier 1 BCNs, and against the Guarantor under the Guarantee;
|
3.2
|
to sanction the substitution for the Tier 1 BCNs of other securities of the lssuer or any other person;
|
3.3
|
to assent to any modification of this Tier 1 BCN;
|
3.4
|
to assent to any modification of the Conditions including, inter alia, the terms regarding:
|
3.4.1
|
subordination referred to in the Conditions;
|
3.4.2
|
currency and due dates for payment of principal;
|
3.4.3
|
any interest payments in respect of the Tier 1 BCNs; and
|
3.4.4
|
reducing or cancelling the principal amount of any Tier 1 BCNs or the interest rate (as defined therein);
|
3.5
|
to waive or authorise any breach or proposed breach by the Issuer or the Guarantor of their respective obligations under the Conditions and the Guarantee or any act or omission which might otherwise constitute an Event of Default under the Conditions;
|
3.6
|
to authorise anyone to concur in and do anything necessary to carry out and give effect to an Extraordinary Resolution;
|
3.7
|
to give any authority, direction or sanction required to be given by Extraordinary Resolution; and
|
3.8
|
to appoint any persons (whether Holders or not) as a committee or committees to represent the Holders’ interests and to confer on them any powers or discretions which the Holders could themselves exercise by Extraordinary Resolution,
|
4
|
The Issuer or the Guarantor may at any time convene a meeting. If it receives a written request by Holders holding at least 10 per cent. in principal amount of the Tier 1 BCNs for the time being outstanding and is indemnified to its satisfaction against all costs and expenses, the Issuer or the Guarantor shall convene a meeting of the Holders. Every meeting shall be held at a time and place approved by the Principal Paying and Conversion Agent.
|
5
|
At least 21 days’ notice (exclusive of the day on which the notice is given and of the day of the meeting) shall be given to the Holders. A copy of the notice shall be given by the party convening the meeting to the other parties. The notice shall specify the day, time and place of meeting and the nature of the resolutions to be proposed and shall explain how Holders may appoint proxies or representatives.
|
6
|
The chairman of a meeting shall be such person as the Issuer may nominate in writing, but if no such nomination is made or if the person nominated is not present within 15 minutes after the time fixed for the meeting the Holders or agents present shall choose one of their number to be chairman, failing which the Issuer may appoint a chairman.
|
7
|
The chairman may but need not be a Holder or agent. The chairman of an adjourned meeting need not be the same person as the chairman of the original meeting.
|
8
|
The following may attend and speak at a meeting:
|
8.1
|
Holders and agents;
|
8.2
|
the chairman; and
|
8.3
|
the lssuer, the Guarantor and the Principal Paying and Conversion Agent (through their respective representatives) and their respective financial and legal advisers.
|
9
|
No business (except choosing a chairman) shall be transacted at a meeting unless a quorum is present at the commencement of business. If a quorum is not present within 15 minutes from the time initially fixed for the meeting, it shall, if convened on the requisition of Holders, be dissolved. In any other case it shall be adjourned until such date, not less than 14 nor more than 42 days later, and time and place as the chairman may decide. If a quorum is not present within 15 minutes from the time fixed for a meeting so adjourned, the meeting shall be dissolved.
|
10
|
One or more Holders or agents present in person shall be a quorum:
|
10.1
|
in the cases marked “No minimum proportion” in the table below, whatever the proportion of the Tier 1 BCNs which they represent; and
|
10.2
|
in any other case, only if they represent at least the proportion of the Tier 1 BCNs shown by the table below.
|
COLUMN 1
|
COLUMN 2
|
COLUMN 3
|
|
Purpose of meeting
|
Any meeting except one referred to in column 3
|
Meeting previously adjourned through want of a quorum
|
|
Required proportion
|
Required proportion
|
||
To pass a special quorum resolution
|
75 per cent.
|
25 per cent.
|
|
To pass any other Extraordinary Resolution
|
A clear majority
|
No minimum proportion
|
|
Any other purpose
|
10 per cent.
|
No minimum proportion
|
11
|
The chairman may with the consent of (and shall if directed by) a meeting adjourn the meeting from time to time and from place to place. Only business which could have been transacted at the original meeting may be transacted at a meeting adjourned in accordance with this paragraph or paragraph 9.
|
12
|
At least 10 days’ notice of a meeting adjourned through want of a quorum shall be given in the same manner as for an original meeting and that notice shall state the quorum required at the adjourned meeting. No notice need, however, otherwise be given of an adjourned meeting.
|
13
|
Each question submitted to a meeting shall be decided by a show of hands unless a poll is (before, or on the declaration of the result of, the show of hands) demanded by the chairman, the lssuer or one or more persons representing two per cent. of the Tier 1 BCNs.
|
14
|
Unless a poll is demanded, a declaration by the chairman that a resolution has or has not been passed shall be conclusive evidence of the fact without proof of the number or proportion of the votes cast in favour of or against it.
|
15
|
If a poll is demanded, it shall be taken in such manner and (subject as provided below) either at once or after such adjournment as the chairman directs. The result of the poll shall be deemed to be the resolution of the meeting at which it was demanded as at the date it was taken. A demand for a poll shall not prevent the meeting continuing for the transaction of business other than the question on which it has been demanded.
|
16
|
A poll demanded on the election of a chairman or on a question of adjournment shall be taken at once.
|
17
|
On a show of hands every person who is present in person and who produces a Certificate or is a proxy or a representative has one vote. On a poll every such person has one vote for U.S.$200,000 in principal amount of Certificates so produced or for which he is a proxy or representative. Without prejudice to the obligations of proxies, a person entitled to more than one vote need not use them all or cast them all in the same way.
|
18
|
In case of equality of votes the chairman shall both on a show of hands and on a poll have a casting vote in addition to any other votes which he may have.
|
19
|
An Extraordinary Resolution shall be binding on all the Holders, whether or not present at the meeting, and each of them shall be bound to give effect to it accordingly. The passing of such a resolution shall be conclusive evidence that the circumstances justify its being passed. The Issuer shall give notice of the passing of an Extraordinary Resolution to Holders within 14 days but failure to do so shall not invalidate the resolution.
|
20
|
Minutes shall be made of all resolutions and proceedings at every meeting and, if purporting to be signed by the chairman of that meeting or of the next succeeding meeting, shall be conclusive evidence of the matters in them. Until the contrary is proved every meeting for which minutes have been so made and signed shall be deemed to have been duly convened and held and all resolutions passed or proceedings transacted at it to have been duly passed and transacted.
|
21
|
A written resolution signed by the Holders of 75 per cent. in principal amount of the Tier 1 BCNs outstanding shall take effect as if it were an Extraordinary Resolution. Such a resolution in writing may be contained in one document or several documents in the same form, each signed by or on behalf of one or more Holders.
|
1.
|
Being informed that Credit Suisse Group (Guernsey) II Limited (the "Issuer") issued and sold U.S.$ 3,445,000,000 9.5 per cent. Tier 1 Buffer Capital Notes (the "Tier 1 BCNs"), Credit Suisse Group AG, Zurich, Switzerland (the "Guarantor"), hereby irrevocably and unconditionally guarantees to the holders of the Tier 1 BCNs (the "Holders") in accordance with Article 111 CO, irrespective of the validity of the Tier 1 BCNs, or the validity of the purchase agreement entered into between the Issuer, the Guarantor and the Investor (as defined therein) on February 13, 2011 or any other agreement entered into in relation to the Tier 1 BCNs (the "Agreements"), and waiving all rights of objection and defence arising from the terms and conditions of the Tier 1 BCNs (the "Terms of the Tier 1 BCNs") and|or the Agreements, (i) the due and punctual payment of all principal, premium and interest and any other sums from time to time expressed to be payable by the Issuer in respect of the Tier 1 BCNs, (ii) upon the occurrence of a Contingency Event Conversion or a Viability Event Conversion, the due delivery of the Ordinary Shares, and (iii) the performance of any other action to be performed by the Issuer in accordance with the Terms of the Tier 1 BCNs.
Accordingly, the Guarantor agrees to pay, deliver or perform within seven (7) days after the receipt by the Guarantor of any Holder's first written demand and confirmation in writing (i) that an amount has become due and payable by the Issuer under the Tier 1 BCNs which is equivalent to the amount claimed under the Guarantee, and such amount remained unpaid, or (ii) that, as a result of the conversion of the Tier 1 BCNs, Ordinary Shares were required to be delivered by the Issuer but were not delivered when due, or (iii) that any other action was required to be performed by the Issuer in accordance with the Terms of the Tier 1 BCNs but was not performed when due, any amount due and payable and|or any number of Ordinary Shares that the Issuer is required to procure that the Guarantor delivers to the Settlement Shares Depository under and pursuant to the Terms of the Tier 1 BCNs and|or any other action to be performed by the Issuer in accordance with the Terms of the Tier 1 BCNs.
|
2.
|
All payments of principal, premium (if any) and|or interest to Holders by or on behalf of the Guarantor under the Guarantee shall be made without withholding or deduction for or on account of any present or future tax, duty, assessment or governmental charge of whatsoever nature imposed, levied, collected, withheld or assessed by or on behalf of any Tax Jurisdiction or any authority thereof or therein having power to tax, unless such withholding or deduction is required by law. In that event, unless compensated under the indemnity in Condition 13 (d) the Guarantor shall pay such additional amounts (the "Additional Amounts") as will result (after such withholding or deduction) in receipt by the Holders of the sums which would have been receivable (in the absence of such withholding or deduction) from it in respect of their Tier 1 BCNs; except that no such Additional Amounts shall be payable with respect to any Tier 1 BCN on account of:
|
(a)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN by reason of the holder thereof having some connection with a Tax Jurisdiction other than the mere holding of such Tier 1 BCN; or
|
(b)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment more than 30 days after the Due Date except to the extent that the holder thereof would have been entitled to such additional amounts on presenting the same for payment on such thirtieth day assuming that day to have been a business day (as defined in Condition 9(d)); or
|
(c)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is imposed on a payment to an individual and is (A) required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive, (B) required to be made pursuant to the Agreement between the European Community and the Confederation of Switzerland dated as of 26 October 2004 (the "Swiss Savings Tax Agreement") providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, the Swiss Savings Tax Agreement, (C) required to be made pursuant to agreements between Guernsey and the EU Member States dated 19 November 2004 (the "Guernsey Savings Tax Agreement") providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such Guernsey Savings Tax Agreement, or (D) required to be made pursuant to any agreements between the European Community and other countries or territories providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreements; or
|
(d)
|
any such taxes, duties, assessments or other governmental charges imposed on any other person than the Issuer and CSG, including any Paying and Conversion Agent in any jurisdiction; or
|
(e)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Tier 1 BCN to another Paying and Conversion Agent in a Member State of the European Union; or
|
(f)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is required by the Swiss Federal Withholding Tax Code of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer vom 13. Oktober 1965) as amended from time to time; or
|
(g)
|
any combination of two or more items (a) to (f) above.
|
3.
|
Notwithstanding any other provision hereof, the Guarantor shall, without prejudice to Condition 6(h)(v), not be obliged to make any payment under this Guarantee to the extent that the Issuer has elected to cancel any payment pursuant to Condition 6(h)(i) or is prohibited from making such payment pursuant to Condition 6(h)(ii).
|
4.
|
The Guarantee constitutes a direct, unconditional, unsecured and subordinated obligation of the Guarantor as hereinafter provided, except for such preferences as are provided by any mandatory applicable provision of law.
|
(a)
|
prior to the occurrence of a Contingency Event or a Viability Event, the rights and claims of the Holders against the Guarantor in respect of or arising under the Guarantee shall rank (i) junior to all claims of Guarantor Priority Creditors, (ii) at least pari passu with Guarantor Parity Obligations and (iii) senior to the rights and claims of all holders of Guarantor Share Capital;
|
(b)
|
on and after the occurrence of a Contingency Event or a Viability Event, the rights and claims of Holders against the Guarantor under the Guarantee in respect of any Accrued Conversion Interest, shall rank in the manner as described in Article 4(a) above; or
|
(c)
|
on and after the occurrence of a Contingency Event or a Viability Event and an announcement that the Guarantor is unable to create and issue the Ordinary Shares so as to fulfil the provisions of conversion set forth in Condition 7(a), the rights and claims of the Holders in respect of the delivery of Ordinary Shares in accordance with Condition 7 will convert to a monetary claim of such Holder against the Guarantor to participate in the liquidation proceeds of the Guarantor with a claim per Tier 1 BCN for a sum equal to that which holders of the number of Ordinary Shares into which such Tier 1 BCN should have been converted at the then Conversion Price would receive out of the liquidation proceeds of the Guarantor.
|
5.
|
Payments under the Guarantee shall be made in the Specified Currency. The Guarantor undertakes to pay to the Holders, without any restrictions, and whatever the circumstances may be, irrespective of nationality or domicile of the beneficiary of such payments and without requiring any affidavit or the fulfilment of any other formality, any sums due pursuant to the Guarantee in the Specified Currency in accordance with the Terms of the Tier 1 BCNs. Any transfer tax, which might possibly be imposed on the transfer of such funds shall be borne by the Guarantor.
|
6.
|
The Guarantee shall give rise to a separate and independent cause of action against the Guarantor, shall apply irrespective of any indulgence granted to the Issuer by any Holder from time to time, and shall continue in full force and effect notwithstanding any judgement or order against the Issuer and|or the Guarantor.
|
7.
|
Whilst any Tier 1 BCN remains outstanding, the Guarantor shall, save with the approval of an Extraordinary Resolution:
|
(a)
|
(other than in connection with a Reorganisation) not issue or pay up any Securities, in either case by way of capitalisation of profits or reserves, other than:
|
(1)
|
by the issue of fully paid Ordinary Shares or other Securities to Shareholders and other holders of shares in the capital of the Guarantor which, by their terms, entitle the holders thereof to receive Ordinary Shares or other shares or Securities on a capitalisation of profits or reserves; or
|
(2)
|
by the issue of Ordinary Shares paid up in full (in accordance with applicable law) and issued wholly, ignoring fractional entitlements, in lieu of the whole or part of a Dividend in cash; or
|
(3)
|
by the issue of fully paid equity share capital (other than Ordinary Shares) to the holders of equity share capital of the same class and other holders of shares in the capital of the Guarantor which, by their terms, entitle the holders thereof to receive equity share capital (other than Ordinary Shares); or
|
(4)
|
by the issue of Ordinary Shares or any equity share capital to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of the Guarantor or any of its Subsidiaries or any associated company or to trustees or nominees to be held for the benefit of any such person, in any such case pursuant to an employee, director or executive share or option scheme whether for all employees, directors, or executives or any one or more of them,
|
(b)
|
not modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation but so that nothing in this Article 7(b) shall prevent:
|
(1)
|
any consolidation, reclassification or subdivision of the Ordinary Shares; or
|
(2)
|
any modification of such rights which is not materially prejudicial to the interests of the Holders as determined in good faith by an Independent Financial Adviser;
|
(c)
|
procure that no Securities (whether issued by the Guarantor or any Subsidiary of the Guarantor or procured by the Guarantor or any Subsidiary of the Guarantor to be issued or issued by any other person pursuant to any arrangement with the Guarantor or any Subsidiary of the Guarantor) issued without rights to convert into, or exchange or subscribe for, Ordinary Shares shall subsequently be granted such rights exercisable at a consideration per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share at the close of business on the last dealing day preceding the date of the first public announcement of the proposed inclusion of such rights unless the same gives rise (or would, but for the provisions of Condition 7(i) relating to roundings and minimum adjustments or the carry forward of adjustments, give rise) to an adjustment to the Floor Price and that at no time shall there be in issue Ordinary Shares of differing nominal values, save where such Ordinary Shares have the same economic rights;
|
(d)
|
not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on Conversion, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
|
(e)
|
not reduce its issued share capital, share premium account, capital redemption reserve, or any uncalled liability in respect thereof, or any non-distributable reserves, except where the reduction is permitted by applicable law and results in (or would, but for the provisions of Condition 7(i) relating to roundings or the carry forward of adjustments, result in) an adjustment to the Floor Price or is otherwise taken into account for the purposes of determining whether or not such an adjustment should be made;
|
(f)
|
in the event of a Reorganisation, take (or shall procure that there is taken) all necessary action to ensure that, immediately after completion of the relevant proceedings, such amendments are made to the Conditions as are necessary to ensure that the Tier 1 BCNs may be converted into or exchanged for ordinary shares or units or the equivalent in Newco mutatis mutandis in accordance with and subject to the Conditions and the ordinary shares or units or the equivalent of Newco are listed and admitted to trading on a Recognised Stock Exchange;
|
(g)
|
issue, allot and/or deliver Ordinary Shares upon Conversion subject to and as provided in Condition 7;
|
(h)
|
save following a Non-Qualifying Takeover Event, use all reasonable endeavours to ensure that its issued and outstanding Ordinary Shares and the Ordinary Shares or, as appropriate, Approved Entity Shares issued upon Conversion shall be admitted to listing and trading on a Primary Stock Exchange or admitted to listing on another regulated, regularly operating, recognised stock exchange or securities market;
|
(i)
|
at all times keep available for issue, free from pre-emptive or other preferential rights, sufficient Ordinary Shares to enable Conversion of the Tier 1 BCNs, and all other rights of subscription and exchange for Ordinary Shares, to be satisfied in full; and
|
(j)
|
where the provisions of Condition 7 require or provide for a determination by an Independent Financial Adviser or a role to be performed by a Settlement Shares Depository, a Settlement Shares Offer Agent and|or a Share Delivery Agent, the Guarantor shall use all reasonable endeavours promptly to appoint such person for such purpose.
|
8.
|
If, on any Interest Payment Date, any payment of interest scheduled to be made on such date is not made by the Issuer in full by reason of Condition 6(h)(i) (such amount not paid, being “Pending Interest”) or by reason of Condition 6(h)(ii),
|
(a)
|
the Guarantor hereby undertakes not to, directly or indirectly, resolve, or recommend to its Shareholders, that any distribution or dividend in cash or in kind (other than in the form of Ordinary Shares) be paid or made on any Ordinary Shares; and
|
(b)
|
the Guarantor hereby undertakes not to, directly or indirectly, redeem, purchase or otherwise acquire any Ordinary Shares other than in relation to (1) transactions in securities effected by or for the account of customers of the Guarantor or any of its Subsidiaries or in connection with the distribution or trading of, or market making in respect of Ordinary Shares securities; (2) the satisfaction by the Guarantor or any of its Subsidiaries of its obligations under any employee benefit plans or similar arrangements with or for the benefit of employees, officers, directors or consultants; (3) a reclassification of the capital stock of the Guarantor or any of its Subsidiaries or the exchange or conversion of one class or series of such capital stock for another class or series of such capital stock; or (4) the purchase of fractional interests in shares of the capital stock of the Guarantor or any of its majority-owned subsidiaries pursuant to the provisions of any security being converted into or exchanged for such capital stock,
|
9.
|
Notwithstanding any reference herein to the Tier 1 BCNs and the Agreements the Guarantor hereby acknowledges and agrees that this Guarantee and the Guarantor's obligations under this Guarantee shall constitute separate, independent, primary and non accessory guarantee obligations of the Guarantor within the meaning of Article 111 CO and not a mere surety within the meaning of Article 492 et seq. CO and will, in particular, not be affected or discharged by reason of any time or other indulgence granted by the Holders or the winding-up, insolvency or reorganisation of the Issuer. This Guarantee and the Guarantor's obligations under this Guarantee shall in particular be independent from the legal validity and enforceability of the Holders' claims under the Tier 1 BCNs and the Guarantor hereby waves all rights of objection and defence arising from the Tier 1 BCNs and the Agreements.
|
10.
|
For so long as the Tier 1 BCNs are outstanding, the Guarantor undertakes that;
|
(a)
|
unless the Guarantor is itself being wound up, it will not permit or take any action that would or might cause, the liquidation, dissolution or winding up of the Issuer; and
|
(b)
|
the Issuer will at all time be a subsidiary of the Guarantor itself or a directly or indirectly wholly-owned subsidiary of the Guarantor; and
|
(c)
|
it will not omit to take any action that enables the Issuer to perform its obligations under the Tier 1 BCNs.
|
11.
|
The Guarantee is governed by Swiss law.
Any dispute which might arise between the Holders, on the one hand, and the Guarantor, on the other hand, regarding the Guarantee shall be settled in accordance with Swiss law. The place of jurisdiction for any such dispute is Zurich 1. The competent courts at the place of jurisdiction, where the law so permits the Commercial Court of the Canton of Zurich, shall have exclusive jurisdiction with the right of appeal.
|
12.
|
Terms and expressions not otherwise defined in the Guarantee shall have the same meaning as defined in the Terms of the Tier 1 BCNs.
|
Credit Suisse Group AG (as the Guarantor)
|
1
|
Form, Denomination, Title and Paid Up Amount
|
2
|
Transfers of Tier 1 BCNs
|
(a)
|
Transfer of Tier 1 BCNs
|
(b)
|
Delivery of New Certificates
|
(c)
|
Transfers Free of Charge
|
(d)
|
Closed Periods
|
(e)
|
Partial Redemption in Respect of Tier 1 BCNs
|
3
|
Status and Subordination of the Tier 1 BCNs
|
(a)
|
Status
|
(b)
|
Subordination
|
(i)
|
Subject as provided below, in the event of an order being made, or an effective resolution being passed, for the liquidation, dissolution or winding-up of the Issuer by reason of bankruptcy or otherwise (except, in any such case, a solvent liquidation, dissolution or winding-up solely for the purposes of a reorganisation, reconstruction or amalgamation of the Issuer or the substitution in place of the Issuer of either a successor in business of the Issuer or CSG, the terms of which reorganisation, reconstruction, amalgamation or substitution (x) have previously been approved by an Extraordinary Resolution and (y) do not provide that the Tier 1 BCNs shall thereby become redeemable or repayable in accordance with these Conditions), the rights and claims of the Holders against the Issuer in respect of or arising under (including any damages awarded for breach of any obligation under) the Tier 1 BCNs shall, subject to any obligations which are mandatorily preferred by law, rank junior to the claims of all holders of unsubordinated obligations of the Issuer and all other subordinated obligations of the Issuer except subordinated obligations of the Issuer in respect of Tier 1 Instruments, at least pari passu with all subordinated obligations of the Issuer in respect of Tier 1 Instruments and senior to the claims of holders of all classes of share capital of the Issuer, provided that, if at any such time a Substitution Date has not occurred but an order has been made or an effective resolution has been passed for the liquidation or winding-up of CSG, any amount payable to Holders shall not exceed the amount per Tier 1 BCN that would be paid on a liquidation distribution out of the assets of CSG had the Tier 1 BCNs and any other obligations ranking pari passu with the Tier 1 BCNs ranked pari passu with Guarantor Parity Obligations (as defined in the Guarantee).
|
(ii)
|
On or after a Substitution Date, where CSG is the new Issuer, in the event of an order being made, or an effective resolution being passed, for the liquidation or winding-up of CSG:
|
(a)
|
prior to the occurrence of a Contingency Event or a Viability Event, the claims of the Holders against CSG in respect of or arising under the Tier 1 BCNs shall rank (i) junior to all claims of CSG Priority Creditors, (ii) at least pari passu with CSG Parity Obligations and (iii) senior to the rights and claims of all holders of CSG Share Capital;
|
(b)
|
on and after the occurrence of a Contingency Event or a Viability Event, the rights and claims of Holders against CSG under the Tier 1 BCNs in respect of any Accrued Conversion Interest shall rank in the manner described in Condition 3(b)(ii)(a) above; or
|
(c)
|
on and after the occurrence of a Contingency Event or a Viability Event and an announcement that CSG is unable to create and issue the Ordinary Shares so as to fulfil the provisions of Conversion set forth in Condition 7(a), the claims of the Holders in respect of the delivery of Ordinary Shares in accordance with Condition 7 will convert to a monetary claim of such Holder against CSG to participate in the liquidation proceeds of CSG with a claim per Tier 1 BCN for a sum equal to that which holders of the number of Ordinary Shares into which such Tier 1 BCNs should have been converted at the then Conversion Price would receive out of the liquidation proceeds of CSG.
|
4
|
Guarantee
|
5
|
Set-off
|
6
|
Interest Calculations
|
(a)
|
Interest on Fixed Rate Tier 1 BCNs
|
(b)
|
Interest on Floating Rate Tier 1 BCNs
|
(i)
|
Interest Payment Dates
|
(ii)
|
Business Day Convention
|
(iii)
|
Floating Rate of Interest for Floating Rate Tier 1 BCNs
|
|
(x)
|
The Floating Rate of Interest for each Interest Accrual Period will, subject as provided below, be either:
|
|
(1)
|
the offered quotation; or
|
|
(2)
|
if required pursuant to Condition 6(b)(iii)(y) below, the arithmetic mean of the offered quotations,
|
|
(y)
|
If the Relevant Screen Page is not available or if Condition 6(b)(iii)(x)(1) above applies and no such offered quotation appears on the Relevant Screen Page or if sub-paragraph (x)(2) above applies and fewer than three such offered quotations appear on the Relevant Screen Page, in each case as at the time specified above, subject as provided below, the Calculation Agent shall request, if the Reference Rate is LIBOR, the principal London office of each of the Reference Banks or, if the Reference Rate is EURIBOR, the principal Euro-zone office of each of the Reference Banks, to provide the Calculation Agent with its offered quotation (expressed as a percentage rate per annum) for the Reference Rate if the Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the Interest Determination Date in question. If two or more of the Reference Banks provide the Calculation Agent with such offered quotations, the Floating Rate of Interest for such Interest Accrual Period shall be the arithmetic mean of such offered quotations as determined by the Calculation Agent.
|
|
(z)
|
If Condition 6(b)(iii)(y) above applies and the Calculation Agent determines that fewer than two Reference Banks are providing offered quotations, subject as provided below, the Floating Rate of Interest shall be the arithmetic mean of the rates per annum (expressed as a percentage) as communicated to (and at the request of) the Calculation Agent by the Reference Banks, or any two or more of them, at which such banks were offered, if the Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the relevant Interest Determination Date, deposits in the Specified Currency for a period equal to that which would have been used for the Reference Rate by leading banks in, if the Reference Rate is LIBOR, the London inter-bank market or, if the Reference Rate is EURIBOR, the Euro-zone inter-bank market, as the case may be, or, if fewer than two of the Reference Banks provide the Calculation Agent with such offered rates, the offered rate for deposits in the Specified Currency for a period equal to that which would have been used for the Reference Rate, or the arithmetic mean of the offered rates for deposits in the Specified Currency for a period equal to that which would have been used for the Reference Rate, at which, if the Reference Rate is LIBOR, at approximately 11.00 a.m. (London time) or, if the Reference Rate is EURIBOR, at approximately 11.00 a.m. (Brussels time) on the relevant Interest Determination Date, any one or more banks (which bank or banks is or are in the opinion of the Issuer suitable for such purpose) informs the Calculation Agent it is quoting to leading banks in, if the Reference Rate is LIBOR, the London inter-bank market or, if the Reference Rate is EURIBOR, the Euro-zone inter-bank market, as the case may be, provided that, if the Rate of Interest cannot be determined in accordance with the foregoing provisions of this paragraph, the Floating Rate of Interest shall be determined as at the last preceding Interest Determination Date (though substituting, where a different Margin or Maximum or Minimum Rate of Interest is to be applied to the relevant Interest Accrual Period from that which applied to the last preceding Interest Accrual Period, the Margin or Maximum or Minimum Rate of Interest relating to the relevant Interest Accrual Period, in place of the Margin or Maximum or Minimum Rate of Interest relating to that last preceding Interest Accrual Period).
|
(c)
|
Interest on Fixed/Floating Rate Tier 1 BCNs
|
(d)
|
Accrual of Interest
|
(i)
|
Where a Tier 1 BCN is to be redeemed pursuant to Condition 8(c), 8(d) or 8(e), interest shall, subject as provided in Condition 6(h), accrue up to (but excluding) the due date for redemption, and shall cease to accrue on such Tier 1 BCN on the due date for redemption unless, upon due presentation, payment is improperly withheld or refused, in which event interest shall continue to accrue (both before and after judgment) at the relevant Rate of Interest from time to time in the manner provided in this Condition 6 to the Due Date.
|
(ii)
|
In the case of a Conversion in respect of the Tier 1 BCNs, interest shall, subject as provided in Condition 6(h), accrue on the principal amount of each Tier 1 BCN up to (but excluding) the date of the relevant Contingency Event Notice or, as the case may be, Viability Event Notice, and interest shall cease to accrue on each Tier 1 BCN with effect from the relevant Contingency Event Notice or, as the case may be, Viability Event Notice.
|
(e)
|
Margin, Maximum/Minimum Rates of Interest and Rounding
|
(i)
|
If any Margin is specified in the relevant Pricing Schedule (either (x) generally or (y) in relation to one or more Interest Accrual Periods), an adjustment shall be made to all Rates of Interest, in the case of (x), or the Rates of Interest for the specified Interest Accrual Periods, in the case of (y), calculated in accordance with Condition 6(b) above by adding (if a positive number) or subtracting the absolute value (if a negative number) of such Margin, subject always to the next paragraph.
|
(ii)
|
If any Maximum or Minimum Rate of Interest is specified in the relevant Pricing Schedule, then any Rate of Interest shall be subject to such maximum or minimum, as the case may be.
|
(iii)
|
For the purposes of any calculations required pursuant to these Conditions (unless otherwise specified), (x) all percentages resulting from such calculations shall be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with halves being rounded up), (y) all figures shall be rounded to seven significant figures (with halves being rounded up) and (z) all currency amounts that fall due and payable shall be rounded to the nearest unit of such currency (with halves being rounded up), save in the case of yen, which shall be rounded down to the nearest yen. For these purposes “unit” means the lowest amount of such currency that is legal tender.
|
(f)
|
Calculations
|
(g)
|
Determination and Publication of Rates of Interest and Interest Amounts
|
(h)
|
Cancellation of Interest; Prohibited Interest
|
(i)
|
The Issuer may, at its discretion, elect to cancel all or part of any payment of interest which is otherwise scheduled to be paid on an Interest Payment Date by giving notice of such election to the Holders in accordance with Condition 17, and to the Principal Paying and Conversion Agent, not more than 30 nor less than 10 Business Days prior to the relevant Interest Payment Date. This Condition 6(h)(i) is without prejudice to the provisions of Condition 6(h)(ii) and Condition 6(h)(v).
|
(ii)
|
The Issuer shall be prohibited from making, in whole or in part, any payment of interest on the Tier 1 BCNs on the relevant Interest Payment Date to the extent that on such Interest Payment Date:
|
(a)
|
CSG has an amount of Distributable Profits which is less than the sum of the (i) aggregate amount of such interest payment and (ii) all other payments (other than redemption payments) made by CSG since the date of the Relevant Accounts (i) on the Tier 1 BCNs and (ii) on or in respect of any Tier 1 Instruments or Tier 1 Shares, in each case, excluding any portion of such other payments already accounted for in determining the Distributable Profits and, in each case as necessary, translated into the Share Currency at the relevant Prevailing Rate on or around such Interest Payment Date; and/or
|
(b)
|
the Regulatory Condition is not satisfied or would not be satisfied if such interest payment were made.
|
(iii)
|
If, on any Interest Payment Date, any payment of interest scheduled to be made on such date is not made in full by reason of Condition 6(h)(i) (such amount not paid, being “Pending Interest”) or by reason of Condition 6(h)(ii),
|
(a)
|
the Issuer shall procure that CSG shall not, directly or indirectly, resolve, or recommend to the Shareholders, that any distribution or dividend in cash or in kind (other than in the form of Ordinary Shares) be paid or made on any Ordinary Shares; and
|
(b)
|
the Issuer shall procure that CSG shall not, directly or indirectly, redeem, purchase or otherwise acquire any Ordinary Shares other than in relation to (1) transactions in securities effected by or for the account of customers of CSG or any of its Subsidiaries or in connection with the distribution or trading of, or market making in respect of Ordinary Shares securities; (2) the satisfaction by CSG or any of its Subsidiaries of its obligations under any employee benefit plans or similar arrangements with or for the benefit of employees, officers, directors or consultants; (3) a reclassification of the capital stock of CSG or any of its Subsidiaries or the exchange or conversion of one class or series of such capital stock for another class or series of such capital stock; or (4) the purchase of fractional interests in shares of the capital stock of CSG or any of its majority-owned subsidiaries pursuant to the provisions of any security being converted into or exchanged for such capital stock,
|
(iv)
|
Payments of interest on the Tier 1 BCNs are not cumulative. Notwithstanding any other provision in these Conditions but without prejudice to Condition 6(h)(v), the cancellation or non-payment of any interest payment by virtue of this Condition 6(h) shall not constitute a default for any purpose (including, without limitation, Condition 12(a) and (b)) on the part of the Issuer. Any interest payment not paid by virtue of this Condition 6(h) shall not accumulate or be payable at any time thereafter, and Holders shall have no right thereto.
|
(v)
|
Notwithstanding any other provision in these Conditions, if the ordinary shareholders of CSG resolve to make or pay a distribution or dividend in cash or in kind (other than in the form of Ordinary Shares) on the Ordinary Shares in respect of a financial year or other specified period during which there has arisen any Pending Interest, the Issuer shall, subject as provided below, pay to the Holders, within 5 Business Days of such distribution or dividend being paid or made, an amount equal to the aggregate amount of all Pending Interest which has arisen during such financial year or other specified period. If the Shareholders do not resolve to make or pay a distribution or dividend on the Ordinary Shares as described in this Condition 6(h)(v), no amount shall be payable under this Condition 6(h)(v).
|
(i)
|
Definitions
|
(i)
|
in the case of a currency other than euro, a day (other than a Saturday or Sunday) on which commercial banks and foreign exchange markets settle payments in the principal financial centre for such currency; and/or
|
(ii)
|
in the case of euro, a day on which the TARGET system is operating (a “TARGET Business Day”); and/or
|
(iii)
|
in the case of a currency and/or one or more Business Centres specified in the relevant Pricing Schedule a day (other than a Saturday or a Sunday) on which commercial banks and foreign exchange markets settle payments in such currency in such Business Centre(s) or, if no currency is indicated, generally in each of such Business Centres.
|
(i)
|
if “Actual/Actual” or “Actual/Actual – ISDA” is specified in the relevant Pricing Schedule, the actual number of days in the Calculation Period divided by 365 (or, if any portion of that Calculation Period falls in a leap year, the sum of (A) the actual number of days in that portion of the Calculation Period falling in a leap year divided by 366 and (B) the actual number of days in that portion of the Calculation Period falling in a non-leap year divided by 365);
|
(ii)
|
if “Actual/365 (Fixed)” is specified in the relevant Pricing Schedule, the actual number of days in the Calculation Period divided by 365;
|
(iii)
|
if “Actual/360” is specified in the relevant Pricing Schedule, the actual number of days in the Calculation Period divided by 360;
|
(iv)
|
if “Actual/Actual-ICMA” is specified in the relevant Pricing Schedule,
|
(a)
|
if the Calculation Period is equal to or shorter than the Determination Period during which it falls, the number of days in the Calculation Period divided by the product of (x) the number of days in such Determination Period and (y) the number of Determination Periods normally ending in any year; and
|
(b)
|
if the Calculation Period is longer than one Determination Period, the sum of:
|
|
(x)
|
the number of days in such Calculation Period falling in the Determination Period in which it begins divided by the product of (1) the number of days in such Determination Period and (2) the number of Determination Periods normally ending in any year; and
|
|
(y)
|
the number of days in such Calculation Period falling in the next Determination Period divided by the product of (1) the number of days in such Determination Period and (2) the number of Determination Periods normally ending in any year,
|
(v)
|
if “30/360”, “360/360” or “Bond Basis” is specified in the relevant Pricing Schedule, the number of days in the Calculation Period divided by 360, calculated on a formula basis as follows:
|
Day Count Fraction = | ||
(i)
|
in respect of an Interest Accrual Period, the amount of interest payable per Calculation Amount for that Interest Accrual Period and which, in the case of Fixed Rate Tier 1 BCNs, and unless otherwise specified in the relevant Pricing Schedule, shall mean the Fixed Coupon Amount or Broken Amount specified in the relevant Pricing Schedule as being payable on the Interest Payment Date ending in the Interest Period of which such Interest Accrual Period forms part; and
|
(ii)
|
in respect of any other period, the amount of interest payable per Calculation Amount for that period.
|
(j)
|
Calculation Agent
|
7
|
Conversion
|
(a)
|
Conversion upon a Contingency Event or a Viability Event
|
(i)
|
If a Contingency Event occurs at any time while the Tier 1 BCNs are outstanding and fully paid up, each Tier 1 BCN shall, subject to and as provided in this Condition 7, be redeemed and settled (the “Contingency Event Conversion”) by the delivery of new fully paid Ordinary Shares to the Settlement Shares Depository on behalf of the Holders on the date specified therefor in the Contingency Event Notice, which shall be no more than 20 Business Days following the occurrence of the Contingency Event (the “Contingency Event Conversion Settlement Date”). Subject to Condition 7(c), receipt by the Settlement Shares Depository of the Ordinary Shares shall be a good and complete discharge of the Issuer’s obligations in respect of the Tier 1 BCNs and those of the Guarantor under the Guarantee.
|
(ii)
|
If a Viability Event occurs at any time while the Tier 1 BCNs are outstanding and fully paid up, each Tier 1 BCN shall, subject to and as provided in this Condition 7, be redeemed and settled (the “Viability Event Conversion”) by the delivery of new fully paid Ordinary Shares to the Settlement Shares Depository on behalf of the Holders on the date specified therefor in the Viability Event Notice, which date shall be no more than 20 Business Days following the occurrence of the Viability Event (the “Viability Event Conversion Settlement Date”). Subject to Condition 7(c), receipt by the Settlement Shares Depository of the Ordinary Shares shall be a good and complete discharge of the Issuer’s obligations in respect of the Tier 1 BCNs and those of the Guarantor under the Guarantee.
|
(iii)
|
If a Contingency Event or Viability Event occurs, the Tier 1 BCNs will be converted in whole and not in part as provided below.
|
(iv)
|
Prior to giving the Contingency Event Notice or the Viability Event Notice, the Issuer shall deliver to the Principal Paying and Conversion Agent a certificate signed by two Authorised Signatories of CSG stating that the Contingency Event or, as the case may be, the Viability Event has occurred, and such certificate will be conclusive and binding on the Holders.
|
(v)
|
If a Takeover Event shall occur that is a Qualifying Takeover Event, then, where the relevant Conversion Date falls on or after the New Conversion Condition Effective Date (as defined below), each Tier 1 BCN shall, upon the occurrence of the Contingency Event or, as the case may be, the Viability Event, subject to and as provided in this Condition 7(a) and Condition 7(j), be converted into Approved Entity Shares (as defined below) of the Approved Entity (as defined below).
|
(b)
|
Recourse for Ordinary Shares
|
(c)
|
Accrued Conversion Interest
|
(i)
|
Upon Conversion, the Issuer shall, or shall procure that CSG shall, pay to the Holders the Accrued Conversion Interest (if any) in respect of the Tier 1 BCNs on the relevant Conversion Date.
|
(ii)
|
Payment of any Accrued Conversion Interest will be made by transfer to an account with a bank in the principal financial centre of the Specified Currency or, in the case of a payment in euro, to an account with a bank in a city in which banks have access to the TARGET System, as specified in the relevant Delivery Notice or, as the case may be, as provided below.
|
(iii)
|
If, in the case of a Conversion, a Delivery Notice and the Certificate representing the relevant Tier 1 BCNs are not delivered to the Principal Paying and Conversion Agent on or before the Notice Cut-off Date as required in Condition 7(m) or otherwise, the relevant Delivery Notice shall be treated as null and void and any Accrued Conversion Interest in respect of the relevant Tier 1 BCNs which is due to be paid on the Conversion Date shall be paid on the relevant Conversion Date to the Principal Paying and Conversion Agent for distribution to the relevant Holders in accordance with Condition 9.
|
(d)
|
Conversion Price
|
(a)
|
the Reference Market Price of an Ordinary Share on the fifth Zurich Business Day prior to the date of the relevant Contingency Event Notice or, as the case may be, the Viability Event Notice translated, if necessary, into the Specified Currency at the Exchange Rate;
|
(b)
|
the Floor Price on the fifth Zurich Business Day prior to the date of the Contingency Event Notice or, as the case may be, the Viability Event Notice; and
|
(c)
|
the nominal value of each Ordinary Share on the Share Creation Date (being, at the Issue Date, CHF 0.04) translated, if necessary, into the Specified Currency at the Adjusted Exchange Rate,
|
(i)
|
if the Ordinary Shares to be issued or delivered (if applicable) do not rank for the Dividend (or entitlement) in question, the VWAP on the dates on which the Ordinary Shares shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement; or
|
(ii)
|
if the Ordinary Shares to be issued or delivered (if applicable) do rank for the Dividend (or entitlement) in question, the VWAP on the dates on which the Ordinary Shares shall have been based on a price ex-Dividend (or ex- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement,
|
(e)
|
Adjustments to the Floor Price
|
(i)
|
If and whenever there shall be a consolidation, reclassification or subdivision affecting the number of Ordinary Shares, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such consolidation, reclassification or subdivision by the following fraction:
|
|
A
|
is the aggregate number of Ordinary Shares in issue immediately before such consolidation, reclassification or subdivision, as the case may be; and
|
|
B
|
is the aggregate number of Ordinary Shares in issue immediately after, and as a result of, such consolidation, reclassification or subdivision, as the case may be.
|
(ii)
|
If and whenever CSG shall issue any fully paid Ordinary Shares to the Shareholders by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve) other than (1) where any such Ordinary Shares are or are to be issued instead of the whole or part of a Dividend in cash which the Shareholders would or could otherwise have elected to receive, (2) where the Shareholders may elect to receive a Dividend in cash in lieu of such Ordinary Shares or (3) where any such Ordinary Shares are or are expressed to be issued in lieu of a Dividend (whether or not a cash Dividend equivalent or amount is announced or would otherwise be payable to Shareholders, whether at their election or otherwise), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such issue by the following fraction:
|
|
A
|
is the aggregate number of Ordinary Shares in issue immediately before such issue; and
|
|
B
|
is the aggregate number of Ordinary Shares in issue immediately after such issue.
|
(iii)
|
If and whenever any Capital Distribution shall be made or paid to Shareholders, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the Volume Weighted Average Price of one Ordinary Share on whichever is the earlier of (x) the last dealing day preceding the Effective Date or (y) the dealing day when the amount of the relevant Dividend is announced, or, if the day on which the amount of the relevant Dividend is announced is not a dealing day, the next following dealing day; and
|
|
B
|
is the portion of the Fair Market Value of the aggregate Capital Distribution attributable to one Ordinary Share, with such portion being determined by dividing the Fair Market Value of the aggregate Capital Distribution on the Effective Date by the number of Ordinary Shares entitled to receive the relevant Dividend (or, in the case of a purchase, redemption or buy back of Ordinary Shares or any depositary or other receipts or certificates representing Ordinary Shares by or on behalf of CSG or any Subsidiary of CSG, by the number of Ordinary Shares in issue immediately following such purchase, redemption or buy back, and treating as not being in issue any Ordinary Shares, or any Ordinary Shares represented by depositary or other receipts or certificates, purchased, redeemed or bought back).
|
(a)
|
any Dividend which is expressed by CSG or declared by the Board of Directors of CSG to be a capital distribution, extraordinary dividend, extraordinary distribution, special dividend, special distribution or return of value to shareholders of CSG or any analogous or similar term, in which case the Capital Distribution shall be the Fair Market Value of such Dividend; or
|
(b)
|
any Non-Cash Dividend; or
|
(c)
|
any Cash Dividend (the “Relevant Dividend”) paid or made in respect of a fiscal year of CSG (the “Relevant Fiscal Year”) if the sum of:
|
(i)
|
the Fair Market Value of the Relevant Dividend per Ordinary Share; and
|
(ii)
|
the aggregate of the Fair Market Value per Ordinary Share of any other Cash Dividend or Cash Dividends per Ordinary Share paid or made in respect of the Relevant Fiscal Year (disregarding for such purpose any amount previously determined to be a Capital Distribution in respect of the Relevant Fiscal Year),
|
(iv)
|
If and whenever CSG shall issue Ordinary Shares to Shareholders as a class by way of rights at a price per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share on the Effective Date, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the number of Ordinary Shares in issue on the Effective Date;
|
|
B
|
is the number of Ordinary Shares which the aggregate consideration (if any) receivable for the Ordinary Shares issued by way of rights would purchase at such Current Market Price per Ordinary Share on the Effective Date; and
|
|
C
|
is the number of Ordinary Shares to be issued.
|
(v)
|
If and whenever CSG shall issue any Securities (other than Ordinary Shares) to Shareholders as a class by way of rights or grant to Shareholders as a class by way of rights any options, warrants or other rights to subscribe for or purchase any Securities (including options, warrants or other rights to subscribe for or purchase Ordinary Shares), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the Volume Weighted Average Price of one Ordinary Share on the last dealing day preceding the Effective Date; and
|
|
B
|
is the Fair Market Value on the Effective Date of the portion of the rights attributable to one Ordinary Share.
|
(vi)
|
If and whenever CSG shall issue (otherwise than as mentioned in Condition 7(e)(iv) above) wholly for cash or for no consideration any Ordinary Shares (other than Ordinary Shares issued on conversion of the Tier 1 BCNs or on the exercise of any rights of conversion into, or exchange or subscription for or purchase of, Ordinary Shares) or issue or grant (otherwise than as mentioned in Condition 7(e)(iv) above) wholly for cash or for no consideration any options, warrants or other rights to subscribe for or purchase any Ordinary Shares (other than the Tier 1 BCNs, which term shall for this purpose include any Further Tier 1 BCNs), in each case at a price per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share on the date of the first public announcement of the terms of such issue or grant, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the number of Ordinary Shares in issue immediately before the issue of such Ordinary Shares or the grant of such options, warrants or rights;
|
|
B
|
is the number of Ordinary Shares which the aggregate consideration (if any) receivable for the issue of such Ordinary Shares or, as the case may be, for the Ordinary Shares to be issued or otherwise made available upon the exercise of any such options, warrants or rights, would purchase at such Current Market Price per Ordinary Share; and
|
|
C
|
is the number of Ordinary Shares to be issued pursuant to such issue of such Ordinary Shares or, as the case may be, the maximum number of Ordinary Shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights.
|
(vii)
|
If and whenever CSG or any Subsidiary of CSG or (at the direction or request of or pursuant to any arrangements with CSG or any Subsidiary of CSG) any other company, person or entity (otherwise than as mentioned in Conditions 7(e)(iv), 7(e)(v) or 7(e)(vi) above) shall issue wholly for cash or for no consideration any Securities (other than the Tier 1 BCNs which term shall for this purpose exclude any Further Tier 1 BCNs) which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, Ordinary Shares (or shall grant any such rights in respect of existing Securities so issued) or Securities which by their terms might be redesignated as Ordinary Shares, and the consideration per Ordinary Share receivable upon conversion, exchange, subscription or redesignation is less than 95 per cent. of the Current Market Price per Ordinary Share on the date of the first public announcement of the terms of issue of such securities (or the terms of such grant), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:
|
|
A
|
is the number of Ordinary Shares in issue immediately before such issue or grant (but where the relevant Securities carry rights of conversion into or rights of exchange or subscription for Ordinary Shares which have been issued, purchased or acquired by CSG or any Subsidiary of CSG (or at the direction or request or pursuant to any arrangements with CSG or any Subsidiary of CSG) for the purposes of or in connection with such issue, less the number of such Ordinary Shares so issued, purchased or acquired);
|
|
B
|
is the number of Ordinary Shares which the aggregate consideration (if any) receivable for the Ordinary Shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription attached to such Securities or, as the case may be, for the Ordinary Shares to be issued or to arise from any such redesignation would purchase at such Current Market Price per Ordinary Share; and
|
|
C
|
is the maximum number of Ordinary Shares to be issued or otherwise made available upon conversion or exchange of such Securities or upon the exercise of such right of subscription attached thereto at the initial conversion, exchange or subscription price or rate or, as the case may be, the maximum number of Ordinary Shares which may be issued or arise from any such redesignation,
|
(viii)
|
“Effective Date” means, in respect of this Condition 7(e)(vii), the date of issue of such Securities or, as the case may be, the grant of such rights.If and whenever CSG or any Subsidiary of CSG or (at the direction or request of or pursuant to any arrangements with CSG or any Subsidiary of CSG) any other company, person or entity shall offer any Securities in connection with which Shareholders as a class are entitled to participate in arrangements whereby such Securities may be acquired by them (except where the Floor Price falls to be adjusted under Conditions 7(e)(ii), (e)(iii), (e)(iv), (e)(vi) or (e)(vii) above (or would fall to be so adjusted if the relevant issue or grant was at less than 95 per cent. of the Current Market Price per Ordinary Share on the relevant dealing day) or under Condition 7(e)(v) above), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately before the Effective Date by the following fraction:
|
|
A
|
is the Current Market Price of one Ordinary Share on the Effective Date; and
|
|
B
|
is the Fair Market Value on the Effective Date of the portion of the relevant offer attributable to one Ordinary Share.
|
(ix)
|
If the Issuer, in consultation with CSG, determines that a reduction to the Floor Price should be made for whatever reason, the Floor Price will be reduced (either generally or for a specified period as notified to Holders) in such manner and with effect from such date as the Issuer, in consultation with CSG, shall determine and notify to the Holders.
|
(A)
|
where the events or circumstances giving rise to any adjustment pursuant to this paragraph (e) have already resulted or will result in an adjustment to the Floor Price or where the events or circumstances giving rise to any adjustment arise by virtue of any other events or circumstances which have already given or will give rise to an adjustment to the Floor Price or where more than one event which gives rise to an adjustment to the Floor Price occurs within such a short period of time that, in the opinion of CSG, a modification to the operation of the adjustment provisions is required to give the intended result, such modification shall be made to the operation of the adjustment provisions as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate to give the intended result;
|
(B)
|
such modification shall be made to the operation of this Tier 1 BCN as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate (i) to ensure that an adjustment to the Floor Price or the economic effect thereof shall not be taken into account more than once and (ii) to ensure that the economic effect of a Dividend is not taken into account more than once;
|
(C)
|
for the avoidance of doubt, the issue of Ordinary Shares upon a Conversion or upon any conversion or exchange in respect of any other Securities or the exercise of any other options, warrants or other rights shall not result in an adjustment to the Floor Price; and
|
(D)
|
at any time when the Ordinary Shares are not admitted to trading on a Recognised Stock Exchange by reason of a Non-Qualifying Takeover Event or otherwise, the Floor Price shall be adjusted as provided above save that for the purposes thereof the Current Market Price of an Ordinary Share, the Volume Weighted Average Price of an Ordinary Share and the Effective Date shall be determined in good faith by an Independent Financial Adviser in such manner as it considers appropriate to ensure that an adjustment to the Floor Price is made which gives the intended same result as if the Ordinary Shares were so admitted to trading.
|
(1)
|
the aggregate consideration receivable or price for Ordinary Shares issued for cash shall be the amount of such cash;
|
(2)
|
(x) the aggregate consideration receivable or price for Ordinary Shares to be issued or otherwise made available upon the conversion or exchange of any Securities shall be deemed to be the consideration or price received or receivable for any such Securities and (y) the aggregate consideration receivable or price for Ordinary Shares to be issued or otherwise made available upon the exercise of rights of subscription attached to any Securities or upon the exercise of any options, warrants or rights shall be deemed to be that part (which may be the whole) of the consideration or price received or receivable for such Securities or, as the case may be, for such options, warrants or rights which are attributed by CSG to such rights of subscription or, as the case may be, such options, warrants or rights or, if no part of such consideration or price is so attributed, the Fair Market Value of such rights of subscription or, as the case may be, such options, warrants or rights as at the relevant date of first public announcement referred to in Conditions 7(e)(vi) or 7(e)(vii), plus in the case of each of (x) and (y) above, the additional minimum consideration receivable or price (if any) upon the conversion or exchange of such Securities, or upon the exercise of such rights or subscription attached thereto or, as the case may be, upon exercise of such options, warrants or rights and (z) the consideration receivable or price per Ordinary Share upon the conversion or exchange of, or upon the exercise of such rights of subscription attached to, such Securities or, as the case may be, upon the exercise of such options, warrants or rights shall be the aggregate consideration or price referred to in (x) or (y) above (as the case may be) divided by the number of Ordinary Shares to be issued upon such conversion or exchange or exercise at the initial conversion, exchange or subscription price or rate;
|
(3)
|
if the consideration or price determined pursuant to (1) or (2) above (or any component thereof) shall be expressed in a currency other than the Share Currency, it shall be converted into the Share Currency at the Prevailing Rate on the relevant Effective Date (in the case of (1) above) or the relevant date of first public announcement (in the case of (2) above);
|
(4)
|
in determining the consideration or price pursuant to the above, no deduction shall be made for any commissions or fees (howsoever described) or any expenses paid or incurred for any underwriting, placing or management of the issue of the relevant Ordinary Shares or Securities or options, warrants or rights, or otherwise in connection therewith; and
|
(5)
|
the consideration or price shall be determined as provided above on the basis of the consideration or price received, receivable, paid or payable, regardless of whether all or part thereof is received, receivable, paid or payable by or to CSG or another entity.
|
(f)
|
Notice of Adjustments to the Floor Price
|
(g)
|
Decision of an Independent Financial Adviser
|
(h)
|
Share Option Schemes
|
(i)
|
Rounding Down and Notice of Adjustment to the Floor Price
|
(j)
|
Qualifying Takeover Event
|
(i)
|
If a Qualifying Takeover Event shall occur, the Tier 1 BCNs shall, where the Conversion Date falls on or after the New Conversion Condition Effective Date, be converted into Approved Entity Shares of the Approved Entity, mutatis mutandis as provided in accordance with this Condition 7, at a Conversion Price that shall be the New Conversion Price.
|
(ii)
|
The New Floor Price shall be subject to adjustment in the circumstances provided in this Condition 7 for the adjustment of the Floor Price (if necessary with such modifications and amendments as an Independent Financial Adviser acting in good faith shall determine to be appropriate) and the Issuer shall give notice to Holders of the New Floor Price and of any such modifications and amendments thereafter.
|
(iii)
|
In the case of a Qualifying Takeover Event:
|
(1)
|
the Issuer shall and will procure that the Guarantor shall, on or prior to the New Conversion Condition Effective Date, enter into such agreements and arrangements, which may include deeds supplemental to these Conditions, and such amendments and modifications to these Conditions and the Guarantee shall be made to ensure that, with effect from the New Conversion Condition Effective Date, the Tier 1 BCNs shall be convertible into, or exchangeable for, Approved Entity Shares of the Approved Entity, mutatis mutandis in accordance with, and subject to, this Condition 7 (as may be so supplemented, amended or modified) at the New Conversion Price;
|
(2)
|
the Issuer shall, where the Conversion Date falls on or after the New Conversion Condition Effective Date, procure the issue and/or delivery of the relevant number of Approved Entity Shares in the manner provided in this Condition 7, as may be amended or modified as provided above.
|
(iv)
|
Within 10 business days following the occurrence of a Takeover Event, the Issuer shall give notice thereof in accordance with Condition 17 to the Holders (a “Takeover Event Notice”).
|
(1)
|
the identity of the Acquiror;
|
(2)
|
whether the Takeover Event is a Qualifying Takeover Event or a Non-Qualifying Takeover Event;
|
(3)
|
in the case of a Qualifying Takeover Event, if determined at such time, the New Floor Price; and
|
(4)
|
if applicable, the New Conversion Condition Effective Date.
|
(v)
|
“Acquiror” means the person which, following a Takeover Event, controls CSG.
|
(i)
|
the Reference Market Price of the Approved Entity Shares on the fifth Zurich Business Day prior to the date of the relevant Contingency Event Notice or Viability Event Notice (translated, if necessary, into the Specified Currency at the Prevailing Rate on the relevant Business Day) (and where references in the definition of “Reference Market Price” and “VWAP” to “Ordinary Shares” shall be construed as a reference to the Approved Entity Shares and in the definition of “dealing day”, reference to the “Primary Stock Exchange” shall be to the relevant Recognised Stock Exchange); and
|
(ii)
|
the New Floor Price on the fifth Zurich Business Day prior to such Contingency Event Notice or Viability Event Notice translated, if necessary, into the Specified Currency at the Prevailing Rate on such Business Day.
|
NFP = EFPx | VWAPAES | |
VWAPOS |
|
NFP
|
is the New Floor Price.
|
|
EFP
|
is the Floor Price in effect on the dealing day immediately prior to the New Conversion Condition Effective Date.
|
|
VWAPAES
|
means the average of the Volume Weighted Average Price of the Approved Entity Shares (translated, if necessary, into the Specified Currency at the Prevailing Rate on the relevant dealing day) on each of the five dealing days ending on the dealing day prior to the closing date of the Takeover Event (and where references in the definition of “Volume Weighted Average Price” to “Ordinary Shares” shall be construed as a reference to the Approved Entity Shares and in the definition of “dealing day”, references to the “Primary Stock Exchange” shall be to the relevant Recognised Stock Exchange).
|
|
VWAPOS
|
is the average of the Volume Weighted Average Price of the Ordinary Shares on each of the five dealing days ending on the dealing day immediately prior to the closing date of the Takeover Event.
|
(i)
|
the Acquiror is an Approved Entity; and
|
(ii)
|
the New Conversion Condition is satisfied.
|
(k)
|
Procedure for Settlement and Delivery of Ordinary Shares on Conversion
|
(l)
|
Fractions
|
(m)
|
Procedure for Delivery in respect of a Conversion
|
(i)
|
The Issuer, with the assistance of the Share Delivery Agent, shall procure that on or prior to the Conversion Date, CSG delivers to the Settlement Shares Depository such number of Ordinary Shares as is required to satisfy in full the Issuer’s obligation to deliver Ordinary Shares in respect of the Conversion of the aggregate amount of Tier 1 BCNs on the Conversion Date. Receipt by the Settlement Shares Depository of such Ordinary Shares shall be a good and complete discharge of the Issuer’s and CSG’s obligations in respect of the Tier 1 BCNs.
|
(ii)
|
In order to obtain delivery of the relevant Ordinary Shares upon a Conversion from the Settlement Shares Depository, the relevant Holder must deliver a duly completed Delivery Notice, together with the relevant Certificates representing the Tier 1 BCNs held by it, to the specified office of any Paying and Conversion Agent no later than 5 Business Days (in the relevant place of delivery) prior to the relevant Conversion Date (the “Notice Cut-off Date”).
|
(iii)
|
Subject to the making of a Settlement Shares Offer and as otherwise provided herein, the Principal Paying and Conversion Agent shall give instructions to the Settlement Shares Depository for the relevant Ordinary Shares to be delivered by the Settlement Shares Depository on the Conversion Date in accordance with the instructions given in the relevant Delivery Notice, provided that such duly completed Delivery Notice and the relevant Certificate representing the Tier 1 BCNs have been so delivered not later than the Notice Cut-off Date.
|
(iv)
|
If a duly completed Delivery Notice and relevant Certificate representing any Tier 1 BCN is not delivered to the specified office of a Paying and Conversion Agent on or before the Notice Cut-off Date, then at any time following the Notice Cut-off Date and prior to the 10th Business Day after the Conversion Date the Issuer may in its sole and absolute discretion (and the relevant Holders of such Tier 1 BCNs shall be deemed to agree thereto), elect to appoint a person (the “Selling Agent”) to procure that all Ordinary Shares held by the Settlement Shares Depository in respect of which no duly completed Delivery Notice and Certificate representing the Tier 1 BCNs have been delivered on or before the Notice Cut-off Date as aforesaid or in respect of which any Holder is otherwise not entitled to be admitted to the register of Shareholders shall be sold by or on behalf of the Selling Agent as soon as reasonably practicable. Subject to the deduction by or on behalf of the Selling Agent of any amount payable in respect of its liability to taxation and the payment of any capital, stamp, issue, registration and/or transfer taxes and duties (if any) and any fees or costs incurred by or on behalf of the Selling Agent in connection with the issue, allotment and sale thereof, the net proceeds of sale, converted into the Specified Currency at the Prevailing Rate on the Notice Cut-off Date, if necessary, shall as soon as reasonably practicable be distributed rateably to the relevant Holders in accordance with Condition 9 or in such other manner and at such time as the Issuer or CSG shall determine and notify to the Holders.
|
(v)
|
Any Delivery Notice shall be irrevocable. Failure properly to complete and deliver a Delivery Notice and deliver the relevant Certificate representing the Tier 1 BCNs may result in such Delivery Notice being treated as null and void and the Issuer shall be entitled to procure the sale of any applicable Ordinary Shares to which the relevant Holder may be entitled in accordance with Condition 7(m)(iv) above. Any determination as to whether any Delivery Notice has been properly completed and delivered as provided in this Condition 7 shall be made by the Issuer in its sole discretion, acting in good faith, and shall, in the absence of manifest error, be conclusive and binding on the relevant Holders.
|
(vi)
|
In respect of a Contingency Event Conversion only, following receipt by the Settlement Shares Depository of the Ordinary Shares as described above, which, subject to Condition 7(c), shall be a good and complete discharge of the Issuer’s obligations in respect of the Tier 1 BCNs, the Issuer may, in its sole and absolute discretion, appoint a placement agent (the “Settlement Shares Offer Agent”) acting on behalf, and for the accounts, of the Holders to conduct an offering of the Ordinary Shares to which the Holders are otherwise entitled (a “Settlement Shares Offer”). In the relevant Contingency Event Notice, the Issuer shall notify whether it will appoint such Settlement Shares Offer Agent to conduct such a Settlement Shares Offer. If it does so appoint a Settlement Shares Offer Agent, CSG will instruct the Settlement Shares Depository to deliver the relevant Ordinary Shares to or to the order of the Settlement Shares Offer Agent for this purpose prior to the end of the Offer Settlement Period. Such Settlement Shares Offer shall be made at a net price per Ordinary Share, which, translated into the Specified Currency at the Prevailing Rate at the date of the Contingency Event Notice, is equal to or above the Conversion Price, to some or, subject to applicable laws and regulations and to such an offer being practicable in the opinion of the Issuer and CSG in the Offer Settlement Period (as defined below), all shareholders of CSG on the record date of the Contingency Event Notice then eligible to participate in such offer. Any such Settlement Shares Offer shall be completed no later than 20 Business Days after the occurrence of the Contingency Event (the “Offer Settlement Period”). Neither CSG, the Issuer nor the Settlement Shares Depository shall incur any liability whatsoever to the Holders in respect of the appointment of such Settlement Shares Offer Agent or its conduct, save for cases of gross negligence or wilful intent.
|
(n)
|
Taxes and Duties
|
(o)
|
Delivery
|
(p)
|
Ordinary Shares
|
(q)
|
Purchase or Redemption of Ordinary Shares
|
(r)
|
Covenants
|
(i)
|
(other than in connection with a Reorganisation) not issue or pay up any Securities, in either case by way of capitalisation of profits or reserves, other than:
|
(1)
|
by the issue of fully paid Ordinary Shares or other Securities to Shareholders and other holders of shares in the capital of CSG which, by their terms, entitle the holders thereof to receive Ordinary Shares or other shares or Securities on a capitalisation of profits or reserves; or
|
(2)
|
by the issue of Ordinary Shares paid up in full (in accordance with applicable law) and issued wholly, ignoring fractional entitlements, in lieu of the whole or part of a Dividend in cash; or
|
(3)
|
by the issue of fully paid equity share capital (other than Ordinary Shares) to the holders of equity share capital of the same class and other holders of shares in the capital of CSG which, by their terms, entitle the holders thereof to receive equity share capital (other than Ordinary Shares); or
|
(4)
|
by the issue of Ordinary Shares or any equity share capital to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of CSG or any of its Subsidiaries or any associated company or to trustees or nominees to be held for the benefit of any such person, in any such case pursuant to an employee, director or executive share or option scheme whether for all employees, directors, or executives or any one or more of them,
|
(ii)
|
not modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation but so that nothing in this Condition 7(r)(ii) shall prevent:
|
(1)
|
any consolidation, reclassification or subdivision of the Ordinary Shares; or
|
(2)
|
any modification of such rights which is not materially prejudicial to the interests of the Holders as determined in good faith by an Independent Financial Adviser;
|
(iii)
|
procure that no Securities (whether issued by CSG or any Subsidiary of CSG or procured by CSG or any Subsidiary of CSG to be issued or issued by any other person pursuant to any arrangement with CSG or any Subsidiary of CSG) issued without rights to convert into, or exchange or subscribe for, Ordinary Shares shall subsequently be granted such rights exercisable at a consideration per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share at the close of business on the last dealing day preceding the date of the first public announcement of the proposed inclusion of such rights unless the same gives rise (or would, but for the provisions of Condition 7(i) relating to roundings and minimum adjustments or the carry forward of adjustments, give rise) to an adjustment to the Floor Price and that at no time shall there be in issue Ordinary Shares of differing nominal values, save where such Ordinary Shares have the same economic rights;
|
(iv)
|
not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on a Conversion, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
|
(v)
|
not reduce its issued share capital, share premium account, capital redemption reserve, or any uncalled liability in respect thereof, or any non-distributable reserves, except where the reduction is permitted by applicable law and results in (or would, but for the provisions of Condition 7(i) relating to roundings or the carry forward of adjustments, result in) an adjustment to the Floor Price or is otherwise taken into account for the purposes of determining whether or not such an adjustment should be made;
|
(vi)
|
in the event of a Reorganisation, take (or shall procure that there is taken) all necessary action to ensure that, immediately after completion of the relevant proceedings, such amendments are made to these Conditions as are necessary to ensure that the Tier 1 BCNs may be converted into or exchanged for ordinary shares or units or the equivalent in Newco mutatis mutandis in accordance with and subject to these Conditions and the ordinary shares or units or the equivalent of Newco are listed and admitted to trading on a Recognised Stock Exchange;
|
(vii)
|
issue, allot and/or deliver Ordinary Shares upon Conversion subject to and as provided in this Condition 7;
|
(viii)
|
save following a Non-Qualifying Takeover Event, use all reasonable endeavours to ensure that its issued and outstanding Ordinary Shares and the Ordinary Shares or, as appropriate, Approved Entity Shares issued upon Conversion shall be admitted to listing and trading on a Primary Stock Exchange or admitted to listing on another regulated, regularly operating, recognised stock exchange or securities market;
|
(ix)
|
at all times keep available for issue, free from pre-emptive or other preferential rights, a sufficient number of Ordinary Shares to enable Conversion of the Tier 1 BCNs, and all other rights of subscription and exchange for Ordinary Shares, to be satisfied in full; and
|
(x)
|
where the provisions of this Condition 7 require or provide for a determination by an Independent Financial Adviser or a role to be performed by a Settlement Shares Depository, a Settlement Shares Offer Agent and/or a Share Delivery Agent, CSG shall use all reasonable endeavours promptly to appoint such person for such purpose.
|
8
|
Redemption, Substitution, Variation and Purchase
|
(a)
|
No Fixed Redemption Date
|
(b)
|
Conditions to Redemption, Substitution, Variation and Purchase
|
(c)
|
Optional Redemption
|
(d)
|
Redemption due to Taxation
|
(e)
|
Redemption for Capital Event
|
(f)
|
No redemption following a Contingency Event or Viability Event
|
(g)
|
Purchases
|
(h)
|
Substitution or Variation upon a Capital Event or a Tax Event
|
(i)
|
Cancellation
|
9
|
Payments
|
(a)
|
Tier 1 BCNs
|
(i)
|
Payments of principal and premium (if any) to be made to Holders in respect of Tier 1 BCNs and payments of accrued interest payable on a redemption of Tier 1 BCNs (other than on an Interest Payment Date) and payment of any Accrued Conversion Interest that is to be paid in accordance with this Condition 9 shall, in each case, be made against presentation and surrender of the relevant Certificates at the specified office of any of the Transfer Agents or of the Registrar and in the manner provided in (ii) below.
|
(ii)
|
Payments of interest to be made to Holders in respect of Tier 1 BCNs due on an Interest Payment Date shall be paid to the person shown on the Register at the close of business on the seventh day before the due date for payment thereof (the “Record Date”).
|
(iii)
|
All such payments shall be made in the relevant currency by transfer to an account in the relevant currency maintained by the payee with a bank.
|
(iv)
|
Payments of all other amounts other than as referred to in (i) and (ii) will be made as provided in these Conditions.
|
(b)
|
Payments subject to Fiscal Laws
|
(c)
|
Appointment of Agents
|
(d)
|
Non-Business Days
|
(i)
|
(in the case of a payment in a currency other than euro) where payment is to be made by transfer to an account maintained with a bank in the relevant currency on which foreign exchange transactions may be carried on in the relevant currency in the principal financial centre of the country of such currency; or
|
(ii)
|
(in the case of a payment in euro) which is a TARGET Business Day.
|
10
|
Taxation
|
(a)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN by reason of the Holder having some connection with a Tax Jurisdiction other than the mere holding of such Tier 1 BCN; or
|
(b)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment more than 30 days after the Due Date (as defined below) except to the extent that the Holder would have been entitled to such additional amounts on presenting the same for payment on such thirtieth day assuming that day to have been a business day (as defined in Condition 9(d)); or
|
(c)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is imposed on a payment to an individual and is (A) required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive, (B) required to be made pursuant to the Agreement between the European Community and the Confederation of Switzerland dated as of 26 October 2004 (the “Swiss Savings Tax Agreement”) providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, the Swiss Savings Tax Agreement, (C) required to be made pursuant to agreements between Guernsey and the EU Member States (the “Guernsey Savings Tax Agreements”) providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such Guernsey Savings Tax Agreements, or (D) required to be made pursuant to any agreements between the European Community and other countries or territories providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreements; or
|
(d)
|
any such taxes, duties, assessments or other governmental charges imposed on any other person than the Issuer and CSG, including any Paying and Conversion Agent in any jurisdiction; or
|
(e)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting the relevant Tier 1 BCN to another Paying and Conversion Agent in a Member State of the European Union; or
|
(f)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is required by the Swiss Federal Withholding Tax Code of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer vom 13 Oktober 1965 as amended from time to time); or
|
(g)
|
any combination of two or more items (a) to (f) above.
|
11
|
Prescription
|
12
|
Events of Default
|
(a)
|
Events of Default relating to the Issuer
|
(i)
|
Events of Default
|
|
(x)
|
default is made for a period of 10 days or more in the payment of any principal or premium (if any) due or 30 days or more in the payment of any interest due in respect of the Tier 1 BCNs or any of them; or
|
|
(y)
|
an order is made or a resolution is passed for the winding-up, dissolution or liquidation of the Issuer or the Guarantor (other than a winding-up which has been approved previously by an Extraordinary Resolution of the Holders).
|
(ii)
|
Proceedings for Winding-up
|
(iii)
|
Enforcement
|
(iv)
|
Extent of Holder’s remedy
|
(b)
|
Events of Default relating to CSG following a Substitution Date
|
(i)
|
CSG fails to make any payment of principal in respect of the Tier 1 BCNs for a period of 10 days or more after the date such payment is due, or CSG fails to make any payment of interest in respect of the Tier 1 BCNs for a period of 30 days or more after the date on which such payment is due;
|
(ii)
|
an involuntary case or other proceeding shall be commenced against CSG, with respect to CSG or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of CSG or for any substantial part of the property and assets of CSG, and such involuntary case or other proceedings shall remain undismissed and unstayed for a period of 60 days, except that the issuance of a writ of payment (Zahlungsbefehl) under the Swiss debt enforcement and bankruptcy laws shall not constitute such involuntary case or proceeding for the purpose of this Condition 12(b); or an order for relief shall be entered against CSG for the purpose of this Condition 12(b); or an order for relief shall be entered against CSG under any bankruptcy, insolvency or other similar law now or hereafter in effect; or
|
(iii)
|
CSG (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of CSG for all or substantially all of the property and assets of CSG, or (iii) effects any general assignment for the benefit of creditors.
|
13
|
Meetings of Holders, Modification and Substitution
|
(a)
|
Meetings of Holders
|
(b)
|
Modifications
|
(c)
|
Substitution upon Reorganisation
|
(d)
|
Substitution
|
14
|
Currency Indemnity
|
15
|
Replacement of Tier 1 BCNs and Certificates
|
16
|
Further Issues
|
17
|
Notices
|
18
|
Definitions
|
(i)
|
have economic terms not materially less favourable to a Holder thereof than the Conditions of the Tier 1 BCNs (as reasonably determined by the Issuer, and provided that a certification to such effect of the Authorised Signatories shall have been delivered to the Principal Paying and Conversion Agent prior to the issue of the relevant securities), provided that such securities (1) contain terms such that they remain or become, as the case may be, securities which are eligible wholly or partly to be treated as Buffer Capital under National Regulations and/or Additional Tier 1 Capital under BIS Regulations; (2) include terms which provide for the same Interest Rate and principal from time to time applying to the Tier 1 BCNs; (3) rank pari passu with the Guarantee; and (4) preserve any existing rights under these Conditions to any accrued but unpaid interest which has not been satisfied; and
|
(ii)
|
where the Tier 1 BCNs which have been substituted or varied were listed immediately prior to their substitution or variation, the relevant securities are listed on (i) the Luxembourg Euro MTF Market or (ii) such other internationally recognised stock exchange as selected by the Issuer; and
|
(iii)
|
where the Tier 1 BCNs which have been substituted or varied were rated by a Rating Agency immediately prior to their substitution or variation, each such Rating Agency has ascribed, or announced its intention to ascribe and publish, an equal or higher rating to the relevant securities;
|
(i)
|
if the Ordinary Shares to be issued or delivered do not rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the Ordinary Shares shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement; or
|
(ii)
|
if the Ordinary Shares to be issued or delivered do rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the Ordinary Shares shall have been based on a price ex-Dividend (or ex- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the Fair Market Value of any such Dividend or entitlement per Ordinary Share as at the date of first public announcement relating to such Dividend or entitlement,
|
(i)
|
where: (1) a Dividend in cash is announced which is to be, or may at the election of a Shareholder or Shareholders be, satisfied by the issue or delivery of Ordinary Shares or other property or assets, or where a capitalisation of profits or reserves is announced which is to be, or may at the election of a Shareholder or Shareholders be, satisfied by the payment of cash, then the Dividend or capitalisation in question shall be treated as a Cash Dividend of an amount equal to the greater of (i) the Fair Market Value of such cash amount and (ii) the Current Market Price of such Ordinary Shares as at the first date on which the Ordinary Shares are traded ex- the relevant Dividend on the Primary Stock Exchange or, as the case may be, the record date or other due date for establishment of entitlement in respect of the relevant capitalisation or, as the case may be, the Fair Market Value of such other property or assets as at the date of the first public announcement of such Dividend or capitalisation on the Primary Stock Exchange or, if later, the date on which the number of Ordinary Shares (or amount of such other property or assets, as the case may be) which may be issued or delivered is determined or (2) there shall be any issue of Ordinary Shares by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve) where such issue is or is expressed to be in lieu of a Dividend (whether or not a cash Dividend equivalent or amount is announced or would otherwise be payable to Shareholders, whether at their election or otherwise), the Dividend or capitalisation in question shall be treated as a Cash Dividend of an amount equal to the Current Market Price of such Ordinary Shares as at the first date on which the Ordinary Shares are traded ex- the relevant capitalisation on the Primary Stock Exchange or, as the case may be, the record date or other due date for establishment of entitlement in respect of the relevant capitalisation or, in any such case, if later, the date on which the number of Ordinary Shares to be issued or delivered is determined;
|
(ii)
|
any issue of Ordinary Shares falling within Condition 7(e)(ii) shall be disregarded;
|
(iii)
|
a purchase or redemption or buy back of share capital of CSG by or on behalf of CSG or any of its Subsidiaries shall not constitute a Dividend unless, in the case of a purchase or redemption or buy back of Ordinary Shares by or on behalf of CSG or any of its Subsidiaries, the weighted average price per Ordinary Share (before expenses) on any one day (a “Specified Share Day”) in respect of such purchases or redemptions or buy backs (translated, if not in the Share Currency, into the Share Currency at the Prevailing Rate on such day) exceeds by more than 5 per cent. the average of the daily Volume Weighted Average Price of an Ordinary Share on the five dealing days immediately preceding the Specified Share Day or, where an announcement (excluding, for the avoidance of doubt for these purposes, any general authority for such purchases, redemptions or buy backs approved by a general meeting of Shareholders or any notice convening such a meeting of Shareholders) has been made of the intention to purchase, redeem or buy back Ordinary Shares at some future date at a specified price or where a tender offer is made, on the five dealing days immediately preceding the date of such announcement or the date of first public announcement of such tender offer (and regardless of whether or not a price per Ordinary Share, a minimum price per Ordinary Share or a price range or formula for the determination thereof is or is not announced at such time), as the case may be, in which case such purchase, redemption or buy back shall be deemed to constitute a Dividend in the Share Currency in an amount equal to the amount by which the aggregate price paid (before expenses) in respect of such Ordinary Shares purchased, redeemed or bought back by CSG or, as the case may be, any of its Subsidiaries (translated where appropriate into the Share Currency as provided above) exceeds the product of (i) 105 per cent. of the daily Volume Weighted Average Price of an Ordinary Share determined as aforesaid and (ii) the number of Ordinary Shares so purchased, redeemed or bought back;
|
(iv)
|
if CSG or any of its Subsidiaries shall purchase, redeem or buy back any depositary or other receipts or certificates representing Ordinary Shares, the provisions of paragraph (iii) above shall be applied in respect thereof in such manner and with such modifications (if any) as shall be determined in good faith by an Independent Financial Adviser;
|
(v)
|
where a dividend or distribution is paid or made to Shareholders pursuant to any plan implemented by CSG for the purpose of enabling Shareholders to elect, or which may require Shareholders, to receive dividends or distributions in respect of the Ordinary Shares held by them from a person other than, or in addition to, CSG, such dividend or distribution shall for the purposes of Condition 7 be treated as a dividend or distribution made or paid to Shareholders by CSG, and the foregoing provisions of this definition and the provisions of Condition 7, including references to CSG paying or making a dividend, shall be construed accordingly, and any such determination shall be made on a gross basis and disregarding any withholding or deduction required to be made on account of tax, and disregarding any associated tax credit; and
|
(vi)
|
a dividend or distribution that is a Spin-Off shall be deemed to be a Non Cash Dividend paid or made by CSG;
|
(i)
|
a distribution of Spin-Off Securities by CSG to Shareholders as a class; or
|
(ii)
|
any issue, transfer or delivery of any property or assets (including cash or shares or other securities of or in or issued or allotted by any entity) by any entity (other than CSG) to Shareholders as a class or, in the case of or in connection with a Reorganisation, Existing Shareholders as a class (but excluding the issue and allotment of ordinary shares (or depositary or other receipts or certificates representing such ordinary shares) by Newco to Existing Shareholders as a class), pursuant in each case to any arrangements with CSG or any of its Subsidiaries;
|
19
|
Governing Law and Jurisdiction
|
1
|
Issuer:
|
Credit Suisse Group (Guernsey) II Limited
|
|
2
|
Guarantor:
|
Credit Suisse Group AG
|
|
3
|
Series Number:
|
1
|
|
4
|
Specified Currency or Currencies:
|
CHF
|
|
5
|
Aggregate Nominal Amount:
|
||
(i) |
Series:
|
CHF2,500,000,000
|
|
(ii) |
Tranche:
|
Not applicable
|
|
6
|
(i) |
Specified Denomination:
|
CHF200,000
|
(ii) |
Calculation Amount:
|
CHF200,000
|
|
(iii) |
Nil Paid on Issue Date:
|
Yes; the Holder of the Tier 1 BCN is required to pay up the principal amount of each Tier 1 BCN on the Paid Up Date as further described below
|
|
7
|
Issue Date:
|
14 February 2011
|
|
8
|
Interest Commencement Date:
|
Issue Date
|
|
9
|
Interest Basis:
|
Fixed/Floating Rate (further particulars specified below)
|
|
10
|
Redemption/Payment Basis:
|
100 per cent. of Principal Amount
|
|
11
|
Change of Interest or Payment Basis:
|
Not applicable
|
|
PROVISIONS RELATING TO INTEREST PAYABLE
|
|||
12
|
Fixed Rate Note Provisions
|
Not applicable
|
|
13
|
Fixed/Floating Rate Provisions
|
Applicable
|
|
(i) |
Fixed Rate of Interest:
|
9.0 per cent. per annum payable annually in arrear until the First Interest Payment Date following the First Optional Redemption Date. Thereafter, as provided in (ii) below.
|
|
(ii) |
Floating Rate of Interest:
|
The aggregate of 7.15 per cent. and the 6 month CHF LIBOR rate.
|
|
(iii) |
Fixed Interest Rate Period:
|
From the Issue Date to (and including) the First Interest Payment Date following the First Optional Redemption Date
|
|
(iv) |
Floating Interest Rate Period:
|
From (but excluding) the First Interest Payment Date following the First Optional Redemption Date to the date of any redemption of any of the Tier 1 BCNs
|
(v) |
Interest Payment Date(s):
|
14 February in each year commencing on 14 February 2012 during the Fixed Interest Period and 14 February and 14 August in each year during the Floating Interest Rate Period adjusted during the Floating Interest Rate Period in accordance with the Modified Following Business Day Convention
|
|
(vi) |
Fixed Coupon Amount(s):
|
To be calculated in accordance with Condition 6(f)
|
|
(vii) |
Broken Amount(s):
|
To be calculated according to Condition 6(f)
|
|
(viii) |
Day Count Fraction:
|
30/360 during the Fixed Interest Note Period and Actual/360 during the Floating Rate Period.
|
|
(ix) |
Determination Dates:
|
Not applicable
|
|
(x) |
Other terms relating to the method of calculating interest for Fixed Rate Notes:
|
Not applicable
|
|
14
|
Floating Rate Note Provisions
|
Not Applicable
|
|
PROVISIONS RELATING TO CONVERSION
|
|||
15
|
Floor Price (subject to adjustment as provided in the Conditions)
|
CHF20.00
|
|
PROVISIONS RELATING TO REDEMPTION
|
|||
16
|
Early Redemption
|
||
First Optional Redemption Date:
|
Fifth anniversary of the Paid Up Date
|
||
Other optional redemption dates:
|
Each Interest Payment Date after the First Optional Redemption Date
|
||
Optional Redemption Amount:
|
CHF200,000 per Specified Denomination
|
||
17
|
Redemption due to Taxation
|
||
Tax Redemption Amount:
|
Make Whole Redemption Price
|
||
Tax redemption dates:
|
At any time and in accordance with Condition 8(d)
|
||
Make Whole Redemption Price:
|
"Make Whole Redemption Price" means, in respect of each Tier 1 BCN, (a) the principal amount of such Tier 1 BCN or, if it is higher and the relevant date fixed for redemption falls prior to the First Optional Redemption Date, (b) the amount equal to the sum of the present value of the principal amount of such Tier 1 BCN, together with the present values of the scheduled Interest Payments (assuming for this purpose the relevant Interest Payments are not cancelled in accordance with the Conditions) from the relevant date fixed for redemption to the First Optional Redemption Date, in each case discounted to such redemption date in a manner consistent with customary market practice at the Relevant Discount Rate.
|
"Relevant Discount Rate" means 3 per cent. plus the Mid Market Swap Rate as determined by the Calculation Agent at or around 11.00 a.m. (CET) on the third Zurich Business Day preceding the relevant date fixed for redemption.
"Mid Market Swap Rate" means the mid market CHF swap rate Libor basis for the maturity falling most closely to the First Optional Redemption Date appearing on the relevant Bloomberg page (or such other page as may replace that page on Bloomberg, or such other page as may be nominated by the person providing or sponsoring the information appearing there for the purposes of displaying comparable rates).
|
||
18
|
Redemption for Capital Event
|
|
Capital Event Redemption Amount:
|
Make Whole Redemption Price
|
|
Capital Event redemption dates:
|
At any time and in accordance with Condition 8(e)
|
|
GENERAL PROVISIONS APPLICABLE TO THE NOTES
|
||
19
|
Financial Centre(s) or other special provisions relating to payment dates:
|
Zurich
|
20
|
Ratings:
|
None on Issue Date; Fitch Ratings expected from Paid Up Date
|
21
|
Listing:
|
None. The Issuer will use its best endeavours to apply for a listing on or as soon as reasonably practicable following the Paid Up Date.
|
22
|
Paid Up Date:
|
“Paid Up Date” shall be the date determined by the Issuer in consultation with CSG that is the later to occur of (a) 23 October 2013 and (b) seven business days in Zurich and Qatar after the first date on which all of the Paying Up Conditions have been satisfied or CSG has waived some of the Paying Up Conditions (it being understood that (iii) of the Paying Up Conditions cannot be waived).
|
23
|
Paying Up Conditions:
|
“Paying Up Conditions” means all of the following conditions:
(i) the introduction and effective application of any National Regulations which require or will require CSG or the Group to maintain Buffer Capital (whether or not the requirement to maintain Buffer Capital commences from a later date);
(ii) confirmation to CSG from its Regulator that the Tier 1 BCNs are or will be eligible in their entirety to be treated as Buffer Capital under National Regulations and as Additional Tier 1 Capital under BIS Regulations;
(iii) CSG having obtained all required consents and approvals from its shareholders, its Regulator and any other competent authority, in respect of the paying up of the Tier 1 BCNs to their principal amount, the contingent issuance of Ordinary Shares in relation to any Conversion of the Tier 1 BCNs and all necessary matters associated therewith;
(iv) no event or circumstance existing which, as at such time, would entitle the Issuer to exercise its right (subject to the approval of the Regulator if and as required) to redeem the Tier 1 BCNs pursuant to Conditions 8(d) or 8(e); and
(v) no Event of Default having occurred in respect of the Tier 1 BCNs, and the Issuer’s obligations under the Tier 1 BCNs, and CSG’s obligations under the Guarantee, being legal, valid, binding and enforceable obligations of the Issuer and CSG, respectively.
|
1
|
In this Schedule:
|
1.1
|
references to a meeting are to a meeting of all Holders and include, unless the context otherwise requires, any adjournment;
|
1.2
|
“agent” means a proxy for, or representative of, a Holder; and
|
1.3
|
references to persons representing a proportion of the Tier 1 BCNs are to Holders or agents holding or representing in the aggregate at least that proportion in principal amount of the Tier 1 BCNs for the time being outstanding.
|
2
|
A proxy or representative may be appointed in the following circumstances:
|
2.1
|
A Holder may, by an instrument in writing in the English language (a “form of proxy”) signed by the Holder or, in the case of a corporation, executed under its common seal or signed on its behalf by an attorney or a duly authorised officer of the corporation and delivered to the specified office of the Registrar or the Transfer Agent not less than 48 hours before the time fixed for the relevant meeting, appoint the person (a “proxy”) to act on his or its behalf in connection with any meeting of the Holders and any adjourned such meeting.
|
2.2
|
Any Holder which is a corporation may, by delivering to any Agent, not later than 48 hours before the time fixed for any meeting, a resolution of its directors or other governing body, authorise any person to act as its representative (a “representative”) in connection with any meeting of the Holders and any adjourned such meeting.
|
2.3
|
Any proxy appointed pursuant to sub-paragraph 2.1 above or representative appointed pursuant to sub-paragraph 2.2 above shall so long as such appointment remains in full force be deemed, for all purposes in connection with the relevant meeting or adjourned meeting of the Holders, to be the Holder to which such appointment relates and the Holder of the Tier 1 BCNs shall be deemed for such purposes not to be the Holder or owner, respectively.
|
3
|
A meeting shall, subject to the Conditions and without prejudice to any powers conferred on other persons by this Schedule, have power by Extraordinary Resolution:
|
3.1
|
to sanction any proposal by the Issuer or any modification, abrogation, variation or compromise of, or arrangement in respect of, the rights of the Holders against the Issuer, whether or not those rights arise under the Tier 1 BCNs, and against the Guarantor under the Guarantee;
|
3.2
|
to sanction the substitution for the Tier 1 BCNs of other securities of the lssuer or any other person;
|
3.3
|
to assent to any modification of this Tier 1 BCN;
|
3.4
|
to assent to any modification of the Conditions including, inter alia, the terms regarding:
|
3.4.1
|
subordination referred to in the Conditions;
|
3.4.2
|
currency and due dates for payment of principal;
|
3.4.3
|
any interest payments in respect of the Tier 1 BCNs; and
|
3.4.4
|
reducing or cancelling the principal amount of any Tier 1 BCNs or the interest rate (as defined therein);
|
3.5
|
to waive or authorise any breach or proposed breach by the Issuer or the Guarantor of their respective obligations under the Conditions and the Guarantee or any act or omission which might otherwise constitute an Event of Default under the Conditions;
|
3.6
|
to authorise anyone to concur in and do anything necessary to carry out and give effect to an Extraordinary Resolution;
|
3.7
|
to give any authority, direction or sanction required to be given by Extraordinary Resolution; and
|
3.8
|
to appoint any persons (whether Holders or not) as a committee or committees to represent the Holders’ interests and to confer on them any powers or discretions which the Holders could themselves exercise by Extraordinary Resolution,
|
4
|
The Issuer or the Guarantor may at any time convene a meeting. If it receives a written request by Holders holding at least 10 per cent. in principal amount of the Tier 1 BCNs for the time being outstanding and is indemnified to its satisfaction against all costs and expenses, the Issuer or the Guarantor shall convene a meeting of the Holders. Every meeting shall be held at a time and place approved by the Principal Paying and Conversion Agent.
|
5
|
At least 21 days’ notice (exclusive of the day on which the notice is given and of the day of the meeting) shall be given to the Holders. A copy of the notice shall be given by the party convening the meeting to the other parties. The notice shall specify the day, time and place of meeting and the nature of the resolutions to be proposed and shall explain how Holders may appoint proxies or representatives.
|
6
|
The chairman of a meeting shall be such person as the Issuer may nominate in writing, but if no such nomination is made or if the person nominated is not present within 15 minutes after the time fixed for the meeting the Holders or agents present shall choose one of their number to be chairman, failing which the Issuer may appoint a chairman.
|
7
|
The chairman may but need not be a Holder or agent. The chairman of an adjourned meeting need not be the same person as the chairman of the original meeting.
|
8
|
The following may attend and speak at a meeting:
|
8.1
|
Holders and agents;
|
8.2
|
the chairman; and
|
8.3
|
the lssuer, the Guarantor and the Principal Paying and Conversion Agent (through their respective representatives) and their respective financial and legal advisers.
|
9
|
No business (except choosing a chairman) shall be transacted at a meeting unless a quorum is present at the commencement of business. If a quorum is not present within 15 minutes from the time initially fixed for the meeting, it shall, if convened on the requisition of Holders, be dissolved. In any other case it shall be adjourned until such date, not less than 14 nor more than 42 days later, and time and place as the chairman may decide. If a quorum is not present within 15 minutes from the time fixed for a meeting so adjourned, the meeting shall be dissolved.
|
10
|
One or more Holders or agents present in person shall be a quorum:
|
10.1
|
in the cases marked “No minimum proportion” in the table below, whatever the proportion of the Tier 1 BCNs which they represent; and
|
10.2
|
in any other case, only if they represent at least the proportion of the Tier 1 BCNs shown by the table below.
|
COLUMN 1
|
COLUMN 2
|
COLUMN 3
|
Purpose of meeting
|
Any meeting except one referred to in column 3
|
Meeting previously adjourned through want of a quorum
|
Required proportion
|
Required proportion
|
|
To pass a special quorum resolution
|
75 per cent.
|
25 per cent.
|
To pass any other Extraordinary Resolution
|
A clear majority
|
No minimum proportion
|
Any other purpose
|
10 per cent.
|
No minimum proportion
|
11
|
The chairman may with the consent of (and shall if directed by) a meeting adjourn the meeting from time to time and from place to place. Only business which could have been transacted at the original meeting may be transacted at a meeting adjourned in accordance with this paragraph or paragraph 9.
|
12
|
At least 10 days’ notice of a meeting adjourned through want of a quorum shall be given in the same manner as for an original meeting and that notice shall state the quorum required at the adjourned meeting. No notice need, however, otherwise be given of an adjourned meeting.
|
13
|
Each question submitted to a meeting shall be decided by a show of hands unless a poll is (before, or on the declaration of the result of, the show of hands) demanded by the chairman, the lssuer or one or more persons representing two per cent. of the Tier 1 BCNs.
|
14
|
Unless a poll is demanded, a declaration by the chairman that a resolution has or has not been passed shall be conclusive evidence of the fact without proof of the number or proportion of the votes cast in favour of or against it.
|
15
|
If a poll is demanded, it shall be taken in such manner and (subject as provided below) either at once or after such adjournment as the chairman directs. The result of the poll shall be deemed to be the resolution of the meeting at which it was demanded as at the date it was taken. A demand for a poll shall not prevent the meeting continuing for the transaction of business other than the question on which it has been demanded.
|
16
|
A poll demanded on the election of a chairman or on a question of adjournment shall be taken at once.
|
17
|
On a show of hands every person who is present in person and who produces a Certificate or is a proxy or a representative has one vote. On a poll every such person has one vote for CHF200,000 in principal amount of Certificates so produced or for which he is a proxy or representative. Without prejudice to the obligations of proxies, a person entitled to more than one vote need not use them all or cast them all in the same way.
|
18
|
In case of equality of votes the chairman shall both on a show of hands and on a poll have a casting vote in addition to any other votes which he may have.
|
19
|
An Extraordinary Resolution shall be binding on all the Holders, whether or not present at the meeting, and each of them shall be bound to give effect to it accordingly. The passing of such a resolution shall be conclusive evidence that the circumstances justify its being passed. The Issuer shall give notice of the passing of an Extraordinary Resolution to Holders within 14 days but failure to do so shall not invalidate the resolution.
|
20
|
Minutes shall be made of all resolutions and proceedings at every meeting and, if purporting to be signed by the chairman of that meeting or of the next succeeding meeting, shall be conclusive evidence of the matters in them. Until the contrary is proved every meeting for which minutes have been so made and signed shall be deemed to have been duly convened and held and all resolutions passed or proceedings transacted at it to have been duly passed and transacted.
|
21
|
A written resolution signed by the Holders of 75 per cent. in principal amount of the Tier 1 BCNs outstanding shall take effect as if it were an Extraordinary Resolution. Such a resolution in writing may be contained in one document or several documents in the same form, each signed by or on behalf of one or more Holders.
|
1.
|
Being informed that Credit Suisse Group (Guernsey) II Limited (the "Issuer") issued and sold CHF 2,500,000,000 9 per cent. Tier 1 Buffer Capital Notes (the "Tier 1 BCNs"), Credit Suisse Group AG, Zurich, Switzerland (the "Guarantor"), hereby irrevocably and unconditionally guarantees to the holders of the Tier 1 BCNs (the "Holders") in accordance with Article 111 CO, irrespective of the validity of the Tier 1 BCNs, or the validity of the purchase agreement entered into between the Issuer, the Guarantor and the Investor (as defined therein) on February 13, 2011 or any other agreement entered into in relation to the Tier 1 BCNs (the "Agreements"), and waiving all rights of objection and defence arising from the terms and conditions of the Tier 1 BCNs (the "Terms of the Tier 1 BCNs") and|or the Agreements, (i) the due and punctual payment of all principal, premium and interest and any other sums from time to time expressed to be payable by the Issuer in respect of the Tier 1 BCNs, (ii) upon the occurrence of a Contingency Event Conversion or a Viability Event Conversion, the due delivery of the Ordinary Shares, and (iii) the performance of any other action to be performed by the Issuer in accordance with the Terms of the Tier 1 BCNs.
|
2.
|
All payments of principal, premium (if any) and|or interest to Holders by or on behalf of the Guarantor under the Guarantee shall be made without withholding or deduction for or on account of any present or future tax, duty, assessment or governmental charge of whatsoever nature imposed, levied, collected, withheld or assessed by or on behalf of any Tax Jurisdiction or any authority thereof or therein having power to tax, unless such withholding or deduction is required by law. In that event, unless compensated under the indemnity in Condition 13(d), the Guarantor shall pay such additional amounts (the "Additional Amounts") as will result (after such withholding or deduction) in receipt by the Holders of the sums which would have been receivable (in the absence of such withholding or deduction) from it in respect of their Tier 1 BCNs; except that no such Additional Amounts shall be payable with respect to any Tier 1 BCN on account of:
|
(a)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN by reason of the holder thereof having some connection with a Tax Jurisdiction other than the mere holding of such Tier 1 BCN; or
|
(b)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment more than 30 days after the Due Date except to the extent that the holder thereof would have been entitled to such additional amounts on presenting the same for payment on such thirtieth day assuming that day to have been a business day (as defined in Condition 9(d)); or
|
(c)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is imposed on a payment to an individual and is (A) required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive, (B) required to be made pursuant to the Agreement between the European Community and the Confederation of Switzerland dated as of 26 October 2004 (the "Swiss Savings Tax Agreement") providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, the Swiss Savings Tax Agreement, (C) required to be made pursuant to agreements between Guernsey and the EU Member States dated 19 November 2004 (the "Guernsey Savings Tax Agreement") providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such Guernsey Savings Tax Agreement, or (D) required to be made pursuant to any agreements between the European Community and other countries or territories providing for measures equivalent to those laid down in the European Council Directive 2003/48/EC or any law or other governmental regulation implementing or complying with, or introduced in order to conform to, such agreements; or
|
(d)
|
any such taxes, duties, assessments or other governmental charges imposed on any other person than the Issuer and CSG, including any Paying and Conversion Agent in any jurisdiction; or
|
(e)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN presented for payment by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Tier 1 BCN to another Paying and Conversion Agent in a Member State of the European Union; or
|
(f)
|
any such taxes, duties, assessments or other governmental charges imposed in respect of such Tier 1 BCN where such withholding or deduction is required by the Swiss Federal Withholding Tax Code of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer vom 13. Oktober 1965) as amended from time to time; or
|
(g)
|
any combination of two or more items (a) to (f) above.
|
3.
|
Notwithstanding any other provision hereof, the Guarantor shall, without prejudice to Condition 6(h)(v), not be obliged to make any payment under this Guarantee to the extent that the Issuer has elected to cancel any payment pursuant to Condition 6(h)(i) or is prohibited from making such payment pursuant to Condition 6(h)(ii).
|
4.
|
The Guarantee constitutes a direct, unconditional, unsecured and subordinated obligation of the Guarantor as hereinafter provided, except for such preferences as are provided by any mandatory applicable provision of law.
|
(a)
|
prior to the occurrence of a Contingency Event or a Viability Event, the rights and claims of the Holders against the Guarantor in respect of or arising under the Guarantee shall rank (i) junior to all claims of Guarantor Priority Creditors, (ii) at least pari passu with Guarantor Parity Obligations and (iii) senior to the rights and claims of all holders of Guarantor Share Capital;
|
(b)
|
on and after the occurrence of a Contingency Event or a Viability Event, the rights and claims of Holders against the Guarantor under the Guarantee in respect of any Accrued Conversion Interest, shall rank in the manner as described in Article 4(a) above; or
|
(c)
|
on and after the occurrence of a Contingency Event or a Viability Event and an announcement that the Guarantor is unable to create and issue the Ordinary Shares so as to fulfil the provisions of conversion set forth in Condition 7(a), the rights and claims of the Holders in respect of the delivery of Ordinary Shares in accordance with Condition 7 will convert to a monetary claim of such Holder against the Guarantor to participate in the liquidation proceeds of the Guarantor with a claim per Tier 1 BCN for a sum equal to that which holders of the number of Ordinary Shares into which such Tier 1 BCN should have been converted at the then Conversion Price would receive out of the liquidation proceeds of the Guarantor.
|
5.
|
Payments under the Guarantee shall be made in the Specified Currency. The Guarantor undertakes to pay to the Holders, without any restrictions, and whatever the circumstances may be, irrespective of nationality or domicile of the beneficiary of such payments and without requiring any affidavit or the fulfilment of any other formality, any sums due pursuant to the Guarantee in the Specified Currency in accordance with the Terms of the Tier 1 BCNs. Any transfer tax, which might possibly be imposed on the transfer of such funds shall be borne by the Guarantor.
|
6.
|
The Guarantee shall give rise to a separate and independent cause of action against the Guarantor, shall apply irrespective of any indulgence granted to the Issuer by any Holder from time to time, and shall continue in full force and effect notwithstanding any judgement or order against the Issuer and|or the Guarantor.
|
7.
|
Whilst any Tier 1 BCN remains outstanding, the Guarantor shall, save with the approval of an Extraordinary Resolution:
|
(a)
|
(other than in connection with a Reorganisation) not issue or pay up any Securities, in either case by way of capitalisation of profits or reserves, other than:
|
(1)
|
by the issue of fully paid Ordinary Shares or other Securities to Shareholders and other holders of shares in the capital of the Guarantor which, by their terms, entitle the holders thereof to receive Ordinary Shares or other shares or Securities on a capitalisation of profits or reserves; or
|
(2)
|
by the issue of Ordinary Shares paid up in full (in accordance with applicable law) and issued wholly, ignoring fractional entitlements, in lieu of the whole or part of a Dividend in cash; or
|
(3)
|
by the issue of fully paid equity share capital (other than Ordinary Shares) to the holders of equity share capital of the same class and other holders of shares in the capital of the Guarantor which, by their terms, entitle the holders thereof to receive equity share capital (other than Ordinary Shares); or
|
(4)
|
by the issue of Ordinary Shares or any equity share capital to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of the Guarantor or any of its Subsidiaries or any associated company or to trustees or nominees to be held for the benefit of any such person, in any such case pursuant to an employee, director or executive share or option scheme whether for all employees, directors, or executives or any one or more of them,
|
(b)
|
not modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation but so that nothing in this Article 7(b) shall prevent:
|
(1)
|
any consolidation, reclassification or subdivision of the Ordinary Shares; or
|
(2)
|
any modification of such rights which is not materially prejudicial to the interests of the Holders as determined in good faith by an Independent Financial Adviser;
|
(c)
|
procure that no Securities (whether issued by the Guarantor or any Subsidiary of the Guarantor or procured by the Guarantor or any Subsidiary of the Guarantor to be issued or issued by any other person pursuant to any arrangement with the Guarantor or any Subsidiary of the Guarantor) issued without rights to convert into, or exchange or subscribe for, Ordinary Shares shall subsequently be granted such rights exercisable at a consideration per Ordinary Share which is less than 95 per cent. of the Current Market Price per Ordinary Share at the close of business on the last dealing day preceding the date of the first public announcement of the proposed inclusion of such rights unless the same gives rise (or would, but for the provisions of Condition 7(i) relating to roundings and minimum adjustments or the carry forward of adjustments, give rise) to an adjustment to the Floor Price and that at no time shall there be in issue Ordinary Shares of differing nominal values, save where such Ordinary Shares have the same economic rights;
|
(d)
|
not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on Conversion, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;
|
(e)
|
not reduce its issued share capital, share premium account, capital redemption reserve, or any uncalled liability in respect thereof, or any non-distributable reserves, except where the reduction is permitted by applicable law and results in (or would, but for the provisions of Condition 7(i) relating to roundings or the carry forward of adjustments, result in) an adjustment to the Floor Price or is otherwise taken into account for the purposes of determining whether or not such an adjustment should be made;
|
(f)
|
in the event of a Reorganisation, take (or shall procure that there is taken) all necessary action to ensure that, immediately after completion of the relevant proceedings, such amendments are made to the Conditions as are necessary to ensure that the Tier 1 BCNs may be converted into or exchanged for ordinary shares or units or the equivalent in Newco mutatis mutandis in accordance with and subject to the Conditions and the ordinary shares or units or the equivalent of Newco are listed and admitted to trading on a Recognised Stock Exchange;
|
(g)
|
issue, allot and/or deliver Ordinary Shares upon Conversion subject to and as provided in Condition 7;
|
(h)
|
save following a Non-Qualifying Takeover Event, use all reasonable endeavours to ensure that its issued and outstanding Ordinary Shares and the Ordinary Shares or, as appropriate, Approved Entity Shares issued upon Conversion shall be admitted to listing and trading on a Primary Stock Exchange or admitted to listing on another regulated, regularly operating, recognised stock exchange or securities market;
|
(i)
|
at all times keep available for issue, free from pre-emptive or other preferential rights, sufficient Ordinary Shares to enable Conversion of the Tier 1 BCNs, and all other rights of subscription and exchange for Ordinary Shares, to be satisfied in full; and
|
(j)
|
where the provisions of Condition 7 require or provide for a determination by an Independent Financial Adviser or a role to be performed by a Settlement Shares Depository, a Settlement Shares Offer Agent and|or a Share Delivery Agent, the Guarantor shall use all reasonable endeavours promptly to appoint such person for such purpose.
|
8.
|
If, on any Interest Payment Date, any payment of interest scheduled to be made on such date is not made by the Issuer in full by reason of Condition 6(h)(i) (such amount not paid, being “Pending Interest”) or by reason of Condition 6(h)(ii),
|
(a)
|
the Guarantor hereby undertakes not to, directly or indirectly, resolve, or recommend to its Shareholders, that any distribution or dividend in cash or in kind (other than in the form of Ordinary Shares) be paid or made on any Ordinary Shares; and
|
(b)
|
the Guarantor hereby undertakes not to, directly or indirectly, redeem, purchase or otherwise acquire any Ordinary Shares other than in relation to (1) transactions in securities effected by or for the account of customers of the Guarantor or any of its Subsidiaries or in connection with the distribution or trading of, or market making in respect of Ordinary Shares securities; (2) the satisfaction by the Guarantor or any of its Subsidiaries of its obligations under any employee benefit plans or similar arrangements with or for the benefit of employees, officers, directors or consultants; (3) a reclassification of the capital stock of the Guarantor or any of its Subsidiaries or the exchange or conversion of one class or series of such capital stock for another class or series of such capital stock; or (4) the purchase of fractional interests in shares of the capital stock of the Guarantor or any of its majority-owned subsidiaries pursuant to the provisions of any security being converted into or exchanged for such capital stock,
|
9.
|
Notwithstanding any reference herein to the Tier 1 BCNs and the Agreements the Guarantor hereby acknowledges and agrees that this Guarantee and the Guarantor's obligations under this Guarantee shall constitute separate, independent, primary and non accessory guarantee obligations of the Guarantor within the meaning of Article 111 CO and not a mere surety within the meaning of Article 492 et seq. CO and will, in particular, not be affected or discharged by reason of any time or other indulgence granted by the Holders or the winding-up, insolvency or reorganisation of the Issuer. This Guarantee and the Guarantor's obligations under this Guarantee shall in particular be independent from the legal validity and enforceability of the Holders' claims under the Tier 1 BCNs and the Guarantor hereby waves all rights of objection and defence arising from the Tier 1 BCNs and the Agreements.
|
10.
|
For so long as the Tier 1 BCNs are outstanding, the Guarantor undertakes that;
|
(a)
|
unless the Guarantor is itself being wound up, it will not permit or take any action that would or might cause, the liquidation, dissolution or winding up of the Issuer; and
|
(b)
|
the Issuer will at all time be a subsidiary of the Guarantor itself or a directly or indirectly wholly-owned subsidiary of the Guarantor; and
|
(c)
|
it will not omit to take any action that enables the Issuer to perform its obligations under the Tier 1 BCNs.
|
11.
|
The Guarantee is governed by Swiss law.
Any dispute which might arise between the Holders, on the one hand, and the Guarantor, on the other hand, regarding the Guarantee shall be settled in accordance with Swiss law. The place of jurisdiction for any such dispute is Zurich 1. The competent courts at the place of jurisdiction, where the law so permits the Commercial Court of the Canton of Zurich, shall have exclusive jurisdiction with the right of appeal.
|
12.
|
Terms and expressions not otherwise defined in the Guarantee shall have the same meaning as defined in the Terms of the Tier 1 BCNs.
|
Credit Suisse Group AG (as the Guarantor)
|