Subject to the terms and conditions set forth in the Purchase Agreement among the Bank, the Company, the Trust and the Managers, each Manager named below has agreed to purchase, and the Trust has agreed to sell to such Manager, the number of Trust Preferred Securities set forth opposite the name of such Manager:
in5
Deutsche Bank AG . . . 867,500,000 J. P. Morgan Securities Ltd. . . 22,500,000 MPS Finance B.M. S.p.A. . . 20,000,000 Banca IMI S.p.A. . . 7,500,000 BNP Paribas . . . 7,500,000 CDC IXIS Capital Markets . . . 7,500,000 Coperatieve Centrale Raiffeisen-Boerenleenbank B. A. . . 7,500,000 Daiwa Securities SMBC Europe Limited . . . 7,500,000 Danske Bank A/S . . . 7,500,000 Landesbank Baden-Wrttemberg . . . 7,500,000 Natexis Banques Populaires . . . 7,500,000 National Australia Bank Limited ABN 12 004 044 937 . . . 7,500,000 The Royal Bank of Scotland plc . . . 7,500,000 UBS Limited . . . 7,500,000 Westpac Banking Corporation . . . 7,500,000 Total . . . 1,000,000,000 Under the terms and conditions of the Purchase Agreement, the Managers will be committed to take and pay for all shares of the Trust Preferred Securities offered hereby, if any are taken.
The purchase price for the Trust Preferred Securities will be the initial offering price of51,000 per
Trust Preferred Security (the “Offering Price”). The Bank, as the holder of the Company Common Security, will pay the Managers a combined commission of510 per Trust Preferred Security. The
Managers propose to offer shares of the Trust Preferred Securities at the Offering Price. After the Trust Preferred Securities are released for sale, the Offering Price and other selling terms may from time to time be varied by the Managers.
In view of the fact that the proceeds from the sale of the Trust Preferred Securities will be used to purchase the Initial Obligation, the Purchase Agreement provides that the Bank will reimburse the Managers for certain expenses of the Offering.
The Bank and the Company have agreed to indemnify the Managers and certain other persons against certain liabilities, including liabilities in connection with the Offering.
Each of the Managers and their affiliates have provided from time to time, and expect to provide in the future, investment services to the Bank and its affiliates, for which the Managers or their affiliates have received or will receive customary fees and commissions.
Selling Restrictions
Each of the Managers has represented and agreed that it has not offered, sold, or delivered and will not offer, sell or deliver any of the Trust Preferred Securities directly or indirectly, or distribute this Offering Circular or any other offering material relating to the Trust Preferred Securities, in or from any jurisdiction except under circumstances that would result in compliance with the applicable laws and regulations thereof and that will not impose any obligations on the Bank, the Company or the Trust.
United States
Each of the Managers has represented and agreed that, except as permitted by the Purchase Agreement, it will not offer or sell the Trust Preferred Securities within the United States or to, or for the account or benefit of, U. S. persons (i) as part of its distribution at any time or (ii) otherwise until
40 days after the Closing Date, and it will have sent to each dealer to which it sells Trust Preferred Securities during the 40-day restricted period a confirmation or other notice setting forth the restrictions on offers and sales of the Trust Preferred Securities within the United States or to, or for the account or benefit of, U. S. persons. Terms used in this paragraph have the meanings given to them by Regulation S under the Securities Act.
In addition, until 40 days after the commencement of the offering, an offer or sale of the Trust Preferred Securities within the United States by any dealer (whether or not participating in the offering) may violate the registration requirements of the Securities Act.
The Trust Preferred Securities may not be purchased by or transferred to any employee benefit plan subject to Title I of the U. S. Employee Retirement Income Security Act of 1974, as amended, any plan or arrangement subject to Section 4975 of the U. S. Internal Revenue Code of 1986, as amended, or any entity whose underlying assets include the assets of any such employee benefit plans, plans or arrangements.
United Kingdom
Each of the Managers has represented and agreed in the Purchase Agreement that:
(i) it has not offered or sold, and, prior to the expiry of six months from the Issue Date of the Trust Preferred Securities will not offer or sell, any Trust Preferred Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments, whether as principal or agent, for purposes of their business or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995,
(ii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (“FSMA”) received by it in connection with the issue or sale of any Trust Preferred Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company or the Trust, and
(iii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Trust Preferred Securities in, from or otherwise involving the United Kingdom.
Luxembourg
The Trust Preferred Securities will not be offered or sold to the public in or from Luxembourg or sold by way of public offering to residents in Luxembourg. No advertisement or document or other material may be distributed to the public or published in Luxembourg.
Germany
Each Manager has confirmed that it is aware that no German sales prospectus(Verkaufsprospekt)has been or will be published in respect of the Offering; and each Manager has represented and agreed that it will comply with the German Securities Sales Prospectus Act(Wertpapier-Verkaufsprospekt- gesetz)or any other laws applicable in Germany governing the issue, offering and sale of the Trust Preferred Securities. In particular each Manager has undertaken not to engage in a public offering
(ffentliches Anbieten)in Germany with respect to any Trust Preferred Securities otherwise than in accordance with the Securities Sales Prospectus Act and any other act replacing or supplementing it and all other applicable laws and regulations.
Italy
Each Manager has represented and represents and agreed that the offering of the Trust Preferred Securities has not been cleared by the Italian Securities Exchange Commission(CONSOB)pursuant to Italian securities legislation and, accordingly, no Trust Preferred Securities may be offered, sold or delivered, nor may copies of the Offering Circular or of any other document relating to the Trust Preferred Securities be distributed in the Republic of Italy, except:
(i) to professional investors(investitori professionali), as defined in Article 31, second paragraph, of CONSOB regulation no. 11522 of July 1, 1998, as amended; or
(ii) in circumstances which are exempted from the rules on solicitation of investments pursuant to Article 100 of Legislative Decree no. 58 of February 24, 1998 (the “Financial Services Act”) and Article 33, first paragraph, of CONSOB regulation no. 11971 of May 14, 1999, as amended; or (iii) to an Italian resident who submits an unsolicited offer to purchase the Trust Preferred Securities.
Each Manager has further represented and agreed that any offer, sale or delivery of the Trust Preferred Securities or distribution of copies of the Offering Circular or any other document relating to the Trust Preferred Securities in the Republic of Italy under (i) or (ii) above must be in compliance with Italian securities, tax, exchange control and all other applicable laws and regulations and must be made:
(a) by an investment firm, bank or financial intermediary permitted to conduct such activities in the republic of Italy in accordance with the Financial Services Act and Legislative Decree no. 385 of September 1, 1993 (the “Banking Act”), as amended; and
(b) in compliance with Article 129 of the Banking Act and the implementing guidelines of the Bank of Italy pursuant to which the issue or placement of the securities in the Republic of Italy is conditioned upon obtaining authorization from the Bank of Italy.
Any investor purchasing the securities is solely responsible for ensuring that any offer or resale of the securities it purchases occurs in compliance with applicable laws and regulations.