High-trigger loss-absorbing additional tier 1 capital instrument
Exhibit 4.17
Issuer
UBS Group AG
ISIN
US902613BE74 (144A) / USH42097ER43 (Reg S)
Issue Date
13.11.2023
Currency
USD
Nominal (million)
1,750
Interest Rate
9.250%
1
Maturity Date
perpetual
First Call Date
13.11.2033
1
Rate subject to change after first call date.
10272790607-v17
64
70-41061831
TERMS AND CONDITIONS OF THE NOTES
The terms and conditions of the Tier 1 Capital Notes issued by UBS Group AG are as follows:
1.
DEFINITIONS
"
Acquiror
" has the meaning assigned to such term in subclause (e)(iv) of Condition 9
(
Conversion
).
"
Additional Amounts
" has the meaning assigned to such term in clause (b) of Condition 11
(
Taxation
).
"
Additional Tier 1 Capital
" means, at any time, any item that qualifies as additional tier 1
capital (
zusätzliches Kernkapital
) under National Regulations at such time.
"
Agent Insolvency Event
" has the meaning assigned to such term in subclause (c)(ii) of
Condition 10 (
Payments; Agents
).
"
Agents
" means the Fiscal Agent, the Registrar, the Calculation Agent, the Swiss Paying Agent
and any other agent from time to time appointed pursuant to the terms of the Fiscal Agency
Agreement and the Settlement Agent.
"
Alternative Loss Absorption Date
" has the meaning assigned to such term in clause (e) of
Condition 7 (
Trigger Event and Viability Event
).
"
Approved Entity
" has the meaning assigned to such term in subclause (e)(v) of Condition 9
(
Conversion
).
"
Articles of Association
" has the meaning given to it in clause (f) of Condition 7 (
Trigger Event
and Viability Event
).
"
Auditor
" means the accounting firm (i) appointed by the Board of Directors of the Group
Holding Company or the shareholders of the Group Holding Company, as the case may be, to
provide, among other things, audit and/or review opinions on the Group Holding Company's
financial statements, and (ii) approved by FINMA in accordance with the Financial Market
Supervisory Act (
Finanzmarktaufsichtsgesetz
) of 22 June 2007, as amended from time to time.
"
Authorised Signatories
" means any two authorised officers of the Issuer signing jointly.
"
Balance Sheet Date
" means (i) with respect to any Ordinary Publication Date, the cut-off date
for the measurement of the CET1 Ratio in the Quarterly Financial Accounts published on such
Ordinary Publication Date, and (ii) with respect to any Extraordinary Publication Date, the cut-
off date for the Reviewed Interim Measurement published upon the instruction of FINMA on
such Extraordinary Publication Date.
"
Bankruptcy Event
" means any of the following events with respect to the Issuer: (i) the
adjudication of bankruptcy (
Konkurseröffnung
) pursuant to articles 171, 189, 190, 191 or 192 of
the DEBA, (ii) the opening of restructuring proceedings (
Sanierungsverfahren
) pursuant to
articles 28 to 32 of the FBA or pursuant to any successor or analogous Swiss law or regulation
applicable to bank holding companies in Switzerland such as UBS Group AG (any such
proceedings, "
Restructuring Proceedings
"), and/or (iii) the ordering of liquidation proceedings
(
Liquidation
) pursuant to articles 33 to 37g of the FBA or pursuant to any successor or analogous
Swiss law or regulation applicable to bank holding companies in Switzerland such as UBS Group
AG;
provided
,
however
, that none of the following will constitute a Bankruptcy Event: (x) mere
debt collection proceedings (
Betreibungsverfahren
) pursuant to article 38
et seq.
of the DEBA,
(y) proceedings in connection with a freezing order (
Arrestverfahren
) pursuant to article 271
et
seq.
of the DEBA, and/or (z) the ordering of protective measures (
Schutzmassnahmen
) pursuant
to article 26 of the FBA or pursuant to any successor or analogous Swiss law or regulation
applicable to bank holding companies in Switzerland such as UBS Group AG (any such
measures, "
Protective Measures
"), including, in the case of each of subclauses (x), (y) and (z),
any steps (other than any steps described in clauses (i) through (iii) of this definition) taken under
or in connection therewith.
10272790607-v17
65
70-41061831
"
BIS Regulations
" means, at any time, the capital adequacy standards and guidelines
promulgated by the Basel Committee on Banking Supervision, as implemented by FINMA in
Switzerland at such time.
"
BIS Risk Weighted Assets
" means, as of any Balance Sheet Date, the aggregate amount, in the
Presentation Currency, of risk-weighted assets of the Group as of such Balance Sheet Date, as
determined by the Group Holding Company pursuant to the BIS Regulations applicable to the
Group Holding Company as of such Balance Sheet Date, and as (i) disclosed in the Quarterly
Financial Accounts published on the relevant Ordinary Publication Date or (ii) may be disclosed
as a component of the Reviewed Interim Measurement published upon the instruction of FINMA
on the relevant Extraordinary Publication Date, as applicable. For the avoidance of doubt, the
term "
risk-weighted assets
" as used in this definition has the meaning assigned to such term in
the BIS Regulations in effect as of the relevant Balance Sheet Date.
"
Business Day
" means a day (other than a Saturday or a Sunday) on which commercial banks
and foreign exchange markets settle payments and are open for general business (including,
without limitation, dealing in foreign exchange and foreign currency deposits) in (i) for purposes
of the definitions of the terms "Extraordinary Publication Date", "Higher-Trigger Amount" and
"Ordinary Publication Date", Zurich, and (ii) otherwise, New York City and Zurich.
"
Calculation Agent
" means UBS AG, in its capacity as calculation agent for the Notes, and
includes any successor calculation agent for the Notes appointed in accordance with the terms of
the Fiscal Agency Agreement.
"
Calculation Amount
" means USD 1,000.
"
Capital Adequacy Ordinance
" means the Swiss Ordinance concerning Capital Adequacy and
Risk Diversification for Banks and Securities Firms of 1 June 2012, as amended from time to
time, or any successor Swiss law or regulation.
"
Cash Distribution
" means any dividend or distribution in respect of the Ordinary Shares that is
to be paid or made to Shareholders as a class in cash (in whatever currency) and however
described and whether payable out of share premium account, profits, retained earnings or any
other capital or revenue reserve or account, and including any cash distribution or payment to
Shareholders upon or in connection with a reduction of capital. For the avoidance of doubt, the
term "Cash Distribution" does not include consideration paid or any other payments made by
UBS Group AG or any of its affiliates in connection with the repurchase of Ordinary Shares in
connection with any share buyback programme.
"
Certificate
" means a Global Certificate and/or a Definitive Certificate, as the case may be.
"
CET1 Capital
" means, as of any Balance Sheet Date, the aggregate amount, in the Presentation
Currency, of items that constitute common equity tier 1 capital of the Group as of such Balance
Sheet Date, less any deductions from common equity tier 1 capital required to be made, in each
case as determined by the Group Holding Company pursuant to the BIS Regulations applicable to
the Group Holding Company as of such Balance Sheet Date, and as (i) disclosed in the Quarterly
Financial Accounts published on the relevant Ordinary Publication Date or (ii) may be disclosed
as a component of the Reviewed Interim Measurement published upon the instruction of FINMA
on the relevant Extraordinary Publication Date, as applicable. For the avoidance of doubt, the term
"
common equity tier 1 capital
" as used in this definition has the meaning assigned to such term
in the BIS Regulations in effect as of the relevant Balance Sheet Date.
"
CET1 Ratio
" means, as of any Balance Sheet Date, the CET1 Capital as of such Balance Sheet
Date, divided by the BIS Risk Weighted Assets as of such Balance Sheet Date, expressed as a
percentage, such ratio (or the components thereof) as determined by the Group Holding Company,
and (i) as disclosed in the Quarterly Financial Accounts published on the relevant Ordinary
Publication Date or (ii) constituting (or as disclosed in) the Reviewed Interim Measurement
published upon the instruction of FINMA on the relevant Extraordinary Publication Date, as
applicable.
"
Clearstream, Luxembourg
" means Clearstream Banking S.A.
10272790607-v17
66
70-41061831
"Code"
has the meaning assigned to such term in clause (c) of Condition 11 (
Taxation
).
"Compliant Securities"
means securities issued by UBS Group AG or any of its subsidiaries
that have economic terms not materially less favourable to a Holder than these Terms and
Conditions (as reasonably determined by the Issuer), provided that:
(a)
such securities (A) include terms that provide for the same interest rate and principal
from time to time applying to the Notes, (B) rank
pari passu
with the Notes and (C)
preserve any existing rights under these Terms and Conditions to any accrued and unpaid
interest that has not been satisfied;
(b)
where such securities are issued by a subsidiary of UBS Group AG, UBS Group AG has
irrevocably and unconditionally guaranteed to the holders of such securities, on a
subordinated basis corresponding
mutatis mutandis
to Condition 4 (
Status and
Subordination
), the due and punctual payment of all amounts due and payable by such
subsidiary under, or in respect of, such securities pursuant to article 111 of the Swiss
Code;
(c)
where the Notes that have been substituted or amended were listed immediately prior to
their substitution or amendment, such securities are listed on (A) the SIX Swiss
Exchange or (B) such other internationally recognised stock exchange selected by the
Issuer; and
(d)
where the Notes that have been substituted or amended were rated by a rating agency
immediately prior to such substitution or amendment, each such rating agency has
ascribed, or announced its intention to ascribe and publish, an equal or higher rating to
such securities.
"
Contingent Write-down
" means the events described in clauses (a) through (c) of Condition 8
(
Contingent Write-down
).
"
Conversion
" has the meaning given to it in clause (a) of Condition 9 (
Conversion
), and
"convert" and "converted" shall be construed accordingly.
"
Conversion Capital
" means conversion capital (
Wandlungskapital
) within the meaning of the
FBA.
"
Conversion Capital Availability Event
" has the meaning given to it in clause (f) of Condition
7 (
Trigger Event and Viability Event
).
"
Conversion Date
" means, with respect to any Conversion, the Trigger Event Conversion Date
or the Viability Event Conversion Date, as applicable.
"
Conversion Event
" means a Trigger Event in respect of which the relevant Trigger Event
Notice is a Trigger Event Conversion Notice or a Viability Event that occurs on or after a
Conversion Capital Availability Event.
"
Conversion Price
" means USD 22.37, subject to any adjustment in accordance with clause (d)
of Condition 9 (
Conversion
).
"
Current Market Price
" means, in respect of an Ordinary Share at a particular date, the average
of the daily Volume Weighted Average Price of an Ordinary Share on each of the five
consecutive dealing days (or, for the purposes of subclause (d)(i)(D) of Condition 9 (
Conversion
),
10 consecutive dealing days) ending on the dealing day immediately preceding such date (such
period, the "
Reference Period
"),
provided
that, if at any time during the Reference Period the
Volume Weighted Average Price shall have been based on a price ex-dividend (or ex-any other
entitlement) and during some other part of the Reference Period the Volume Weighted Average
Price shall have been based on a price cum-dividend (or cum- any other entitlement), then:
(a)
if the Ordinary Shares to be issued and delivered do not rank for the dividend (or
entitlement) in question, the Volume Weighted Average Price on the dates on which the
Ordinary Shares were 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
10272790607-v17
67
70-41061831
Share as at the date of first public announcement relating to such dividend or
entitlement, in any such case, determined on a gross basis and disregarding any
withholding or deduction required to be made for or on account of tax, and disregarding
any associated tax credit; or
(b)
if the Ordinary Shares to be issued and delivered do rank for the dividend (or
entitlement) in question, the Volume Weighted Average Price on the dates on which the
Ordinary Shares were 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, in any such case, determined on a gross basis and disregarding any
withholding or deduction required to be made for or on account of tax, and disregarding
any associated tax credit;
and
provided
,
further
that, if on each of the five dealing days (or, for the purposes of subclause
(d)(i)(D) of Condition 9 (
Conversion
), the 10 dealing days) in the Reference Period the Volume
Weighted Average Price was based on a price cum-dividend (or cum-any other entitlement) in
respect of a dividend (or other entitlement) that has been declared or announced but the Ordinary
Shares to be issued and delivered do not rank for that dividend (or other entitlement), the Volume
Weighted Average Price on each of such dates 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, in any such case, determined on a gross basis and
disregarding any withholding or deduction required to be made for or on account of tax, and
disregarding any associated tax credit;
and
provided
,
further
that, if the Volume Weighted Average Price of an Ordinary Share is not
available on one or more of the five dealing days (or, for the purposes of subclause (d)(i)(D) of
Condition 9 (
Conversion
), the 10 dealing days) in the Reference Period (disregarding for this
purpose the proviso to the definition of Volume Weighted Average Price), then the average of
such Volume Weighted Average Prices that are available in the Reference Period shall be used
(subject to a minimum of two such prices) and if only one, or no, such Volume Weighted
Average Price is available in the Reference Period, the Current Market Price shall be determined
by an Independent Adviser.
"
Day Count Fraction
" means, in respect of any period (the "
Calculation Period
"), the number of
days in the Calculation Period divided by 360 calculated on a formula basis as follows:
"
Y
1
" is the year, expressed as a number, in which the first day of the Calculation Period
falls;
"
Y
2
" is the year, expressed as a number, in which the day immediately following the last
day included in the Calculation Period falls;
"
M
1
" is the calendar month, expressed as a number, in which the first day of the
Calculation Period falls;
"
M
2
" is the calendar month, expressed as number, in which the day immediately
following the last day included in the Calculation Period falls;
"
D
1
" is the first calendar day, expressed as a number, of the Calculation Period, unless
such number would be 31, in which case D
1
will be 30; and
"
D
2
" is the calendar day, expressed as a number, immediately following the last day
included in the Calculation Period, unless such number would be 31 and D
1
is greater
than 29, in which case D
2
will be 30.
10272790607-v17
68
70-41061831
"
dealing day
" means a day on which the Relevant Stock Exchange or relevant stock exchange or
securities market is open for business and on which Ordinary Shares or other securities, options,
warrants or other rights (as the case may be) may be dealt in (other than a day on which the
Relevant Stock Exchange or relevant stock exchange or securities market is scheduled to or does
close prior to its regular weekday closing time).
"
DEBA
" means the Swiss Federal Debt Enforcement and Bankruptcy Act of 11 April 1889, as
amended from time to time.
"
Definitive Certificate
" has the meaning assigned to such term in subclause (c)(i) of Condition 2
(
Amount, Denomination and Form
).
"
Depositary
" means DTC or any other Relevant Clearing System outside of Switzerland
designated as Depositary by the Issuer;
provided
,
however
, that, irrespective of the number of
Regulation S Global Certificates and/or Rule 144A Global Certificates, as the case may be,
outstanding, there will be no more than one Depositary for the Notes at any time.
"
Distributable Items
" means, in respect of any Interest Payment Date, the aggregate of (i) net
profits carried forward and (ii) freely distributable reserves, in each case, less any amounts that
must be contributed to legal reserves under applicable law, all in UBS Group AG's reporting
currency and as appearing in the Relevant Accounts.
"
Distribution Compliance Period
" means the 40-day period commencing on (and including) the
later of (i) the day on which the Notes are first offered to Persons other than distributors (as defined
in Regulation S under the US Securities Act), and (ii) the day on which the closing of the offering
of the Notes occurs.
"
DTC
" means The Depository Trust Company.
"
EEA Regulated Market
" means a market as defined by Article 4.1(21) of Directive 2014/65/EU
of the European Parliament and of the Council on markets on financial instruments.
"
Euroclear
" means Euroclear Bank SA/NV.
"
Event of Default
" has the meaning assigned to such term in clause (a) of Condition 13 (
Events of
Default
).
"
Exempt Reorganisation
" means a Reorganisation where, immediately after completion of the
relevant proceedings, the ordinary shares or units or equivalent of Newco (or depositary or other
receipts or certificates representing ordinary shares or units or equivalent of Newco) are
(i) admitted to trading on the Relevant Stock Exchange or (ii) admitted to listing on such other
Recognised Stock Exchange as UBS Group AG or Newco may determine.
"
Existing Shareholders
" has the meaning assigned to such term in the definition of the term
"Reorganisation".
"
Extraordinary Distribution
" means any Cash Distribution (i) that is expressly declared by
UBS Group AG to be an extraordinary or special dividend or an extraordinary or special
distribution to Shareholders as a class or any analogous or similar term, and (ii) the amount of
which exceeds the arithmetic average of the ordinary dividend per Ordinary Share paid by UBS
Group AG in the three most recently preceding calendar years (each such ordinary dividend
translated, if necessary, into the currency in which the applicable Cash Distribution is expressed
at the Prevailing Rate on the date on which such ordinary dividend was paid) by more than 25 per
cent.
"
Extraordinary Publication Date
" means the Business Day on which a Reviewed Interim
Measurement is published upon the instruction of FINMA, after FINMA has determined that the
conditions for issuing a Trigger Event Notice in accordance with Condition 7 (
Trigger Event and
Viability Event)
"
Extraordinary Trigger Event Notice Date
" has the meaning assigned to such term in
subclause (b)(i) of Condition 7 (
Trigger Event and Viability Event
).
10272790607-v17
69
70-41061831
"
Fair Market Value
" means, with respect to any property on any date (the "
Relevant Valuation
Date
"), the fair market value of that property as determined by an Independent Adviser,
provided
that:
(a)
the Fair Market Value of a cash amount shall be the amount of such cash;
(b)
where securities, options, warrants or other rights are publicly traded on a stock
exchange or securities market of adequate liquidity (as determined by an Independent
Adviser), the Fair Market Value (i) of such securities shall equal the arithmetic mean of
the daily Volume Weighted Average Prices of such securities and (ii) of such options,
warrants or other rights shall equal the arithmetic mean of the daily closing prices of
such options, warrants or other rights, in the case of each of subclauses (i) and (ii),
during the period of five dealing days on the relevant stock exchange or securities
market commencing on the later of (x) the applicable Relevant Valuation Date and (y)
the first dealing day on which such securities, options, warrants or other rights are
publicly traded, or such shorter period as such securities, options, warrants or other
rights are publicly traded; and
(c)
where securities, options, warrants or other rights are not publicly traded on a stock
exchange or securities market of adequate liquidity (as aforesaid), the Fair Market Value
of such securities, options, warrants or other rights shall be determined by an
Independent Adviser, on the basis of a commonly accepted market valuation method and
taking account of such factors as it considers appropriate, including the market price per
Ordinary Share, the dividend yield of an Ordinary Share, the volatility of such market
price, prevailing interest rates and the terms of such securities, options, warrants or other
rights, including as to the expiry date and exercise price (if any) thereof.
Any amounts determined pursuant to the above shall be translated into the Relevant Currency (if
expressed in a currency other than the Relevant Currency) at the Prevailing Rate on the Relevant
Valuation Date. In addition, in the case of clause (a) above, the Fair Market Value shall be
determined on a gross basis and disregarding any withholding or deduction required to be made
on account of tax, and disregarding any associated tax credit.
"
FBA
" means the Swiss Federal Act on Banks and Savings Institutions of 8 November 1934, as
amended from time to time.
"
Final Cancellation Date
" means the date specified in the Trigger Event Conversion Notice or a
Viability Event Conversion Notice, as applicable, as being the date on which any Notes in relation
to which no valid Settlement Shares Settlement Notice has been received by the Settlement Share
Depository (or its designated agent(s)) on or before the Settlement Notice Cut-off Date shall be
cancelled, which date is expected to be no more than 12 Business Days following the Settlement
Notice Cut-off Date.
"
FINMA
" means the Swiss Financial Market Supervisory Authority FINMA and any successor
thereto.
"
First Call Date
" means 13 November 2033.
"
Fiscal Agency Agreement
" means the fiscal agency agreement dated as of 10 February 2021,
among the Issuer, the Fiscal Agent, the Registrar, the Calculation Agent, the Swiss Paying Agent
and the other Agents from time to time party thereto, as may be amended, supplemented or
otherwise modified from time to time.
"
Fiscal Agent
" means Deutsche Bank Trust Company Americas, in its capacity as fiscal agent for
the Notes, and includes any successor fiscal agent for the Notes appointed in accordance with the
terms of the Fiscal Agency Agreement.
"
Fixed Interest Rate
" means 9.250 per cent. per annum.
"
Former Residence
" has the meaning assigned to such term in subclause (a)(v) of Condition 16
(
Issuer Substitution
).
10272790607-v17
70
70-41061831
"
Global Certificate
" means a Regulation S Global Certificate and/or Rule 144A Global
Certificate, as the case may be.
"
Going-Concern LR Requirement
" means a requirement under National Regulations for
systemically relevant banks (
systemrelevante Banken
) to hold a minimum amount of going-
concern capital (
Eigenmittel zur ordentlichen Weiterführung der Bank
), which amount is set by
reference to the leverage ratio (
Höchstverschuldungsquote
) of such bank.
"
Going-Concern RWA Requirement
" means a requirement under National Regulations for
systemically relevant banks (
systemrelevante Banken
) to hold a minimum amount of going-
concern capital (
Eigenmittel zur ordentlichen Weiterführung der Bank
), which amount is set by
reference to the risk weighted assets (
risikogewichtete Positionen
) of such bank.
"
Group
" means, at any time, the Group Holding Company and all its subsidiaries and other entities
that are included in the Group Holding Company's consolidated capital adequacy reports prepared
pursuant to National Regulations.
"
Group Holding Company
" means, at any time, the top Swiss holding company at such time of
the financial group to which UBS Group AG belongs for purposes of preparing consolidated
capital adequacy reports pursuant to National Regulations. As at the Issue Date, the Group Holding
Company is UBS Group AG.
"
Higher-Trigger Amount"
portion of the aggregate principal amount, in the Presentation Currency of the Quarterly
Financial Accounts or Reviewed Interim Measurement, as the case may be, to which such
Publication Date relates, of all Higher-Trigger Contingent Capital, if any, outstanding on the
relevant Balance Sheet Date that could be converted into equity and/or fully or partially written
down, or otherwise operate to increase the CET1 Capital, if a Higher-Trigger Write-
down/Conversion Notice were delivered in accordance with the terms thereof, and (ii) the
maximum portion of the aggregate principal amount, in the Presentation Currency of the
Quarterly Financial Accounts or Reviewed Interim Measurement, as the case may be, to which
such Publication Date relates, of all Higher-Trigger Contingent Capital, if any, issued after the
relevant Balance Sheet Date, but prior to such Publication Date, that could be converted into
equity and/or fully or partially written down, or otherwise operate to increase the CET1 Capital,
if a Higher-Trigger Write-down/Conversion Notice were delivered in accordance with the terms
thereof, in the case of each of clauses (i) and (ii), as determined by UBS Group AG. For purposes
of clause (ii) of this definition and, in the case of an Extraordinary Publication Date, clause (i) of
this definition, the aggregate principal amount of any Higher-Trigger Contingent Capital that is
not denominated in the Presentation Currency will be converted into the Presentation Currency at
the applicable prevailing exchange rate on the last Business Day preceding the relevant
Publication Date, as determined by UBS Group AG. In the case of an Ordinary Publication Date,
for purposes of clause (i) of this definition, the aggregate principal amount of any Higher-Trigger
Contingent Capital that is not denominated in the Presentation Currency will be converted into
the Presentation Currency at the applicable exchange rate used for such purposes in the relevant
Quarterly Financial Accounts.
"
Higher-Trigger Contingent Capital
" means any instrument issued by, or any other obligation
of, any member of the Group that (i) is issued or owed to holders that are not members of the
Group and (ii) is required pursuant to its terms to be converted into equity and/or fully or
partially written down, or otherwise operating to increase the CET1 Capital, when the CET1
Ratio (or equivalent capital measure of the Group described in the terms and conditions thereof)
falls below a threshold that is higher than the Threshold Ratio (with respect to the relevant
Higher-Trigger Contingent Capital, its "
Higher-Trigger Threshold Ratio
").
"
Higher-Trigger Threshold Ratio
" has the meaning assigned to such term in the definition of
the term "Higher-Trigger Contingent Capital".
"
Higher-Trigger Write-down/Conversion Date
" has the meaning assigned to such term in the
definition of the term "Higher-Trigger Write -down/Conversion Notice".
"
Higher-Trigger Write-down/Conversion Notice
" means a notice delivered pursuant to the
terms of any Higher-Trigger Contingent Capital that notifies the holders thereof that the
10272790607-v17
71
70-41061831
CET1 Ratio (or similar measure or other event described in the terms and conditions of such
Higher-Trigger Contingent Capital) has fallen below its Higher-Trigger Threshold Ratio and,
consequently, that such Higher-Trigger Contingent Capital will be converted into equity and/or
fully or partially written down, or otherwise operate to increase the CET1 Capital, as applicable,
as of a particular date (such date, the "
Higher-Trigger Write-down/Conversion Date
"). For the
avoidance of doubt, if the terms and conditions of such Higher-Trigger Contingent Capital permit
FINMA to waive the conversion into equity and/or write-down of such Higher-Trigger
Contingent Capital notwithstanding the fact that the CET1 Ratio (or similar measure or other
event described in the terms and conditions of such Higher-Trigger Contingent Capital) has fallen
below its Higher- Trigger Threshold Ratio, the non-issuance of such a waiver by FINMA
between the relevant Publication Date and the Trigger Event Notice Date will be deemed
equivalent to the delivery of a Higher-Trigger Write-down/Conversion Notice for purposes of
subclause (b)(ii) of Condition 7 (
Trigger Event and Viability Event
).
"
Holder
" means, with respect to any Note, the Person in whose name the Certificate representing
such Note is registered in the Register. For the avoidance of doubt, with respect to Notes
represented by a Global Certificate, no Indirect Holder or other Person will be a Holder for
purposes of these Terms and Conditions or such Notes or have any rights, or be owed any
obligations by the Issuer, under such Notes.
"
Independent Adviser
" means an independent financial institution of international repute or an
independent adviser of recognised standing and expertise, in either case, appointed by UBS
Group AG at its own expense to make any determination that is required to be made, or may be
made, by an Independent Adviser under these Terms and Conditions.
"
Indirect Holder
" means, with respect to any Note represented by a Global Certificate, any Person
(other than the Holder) that owns a beneficial interest in such Notes through a bank, broker or other
financial institution that (i) participates in the book-entry system of DTC, Euroclear, Clearstream,
Luxembourg and/or any other clearing system (each, a "
Relevant Clearing System
"), or (ii) holds
an interest in such Note through a participant in the book-entry system of any Relevant Clearing
System. No Indirect Holder will have any rights, or be owed any obligations by the Issuer, under
the Notes.
"
Interest Payment Date
" has the meaning assigned to such term in subclause (a)(ii) of Condition 5
(
Interest
).
"
Interest Period
" means each period beginning on (and including) an Interest Payment Date (or,
in the case of the first Interest Period, the Issue Date) and ending on (but excluding) the next Interest
Payment Date.
"
Interest Rate
" means the Fixed Interest Rate and/or Reset Interest Rate, as the case may be.
"
Issue Date
" means 13 November 2023.
"
Issuer
" means UBS Group AG in its capacity as issuer of the Notes.
"
Junior Obligations
" means (i) all classes of share capital and participation securities (if any) of
the Issuer and (ii) all other obligations of the Issuer that rank, or are expressed to rank, junior to
claims in respect of the Notes and/or any Parity Obligation.
"
Margin
" means 4.758 per cent. per annum.
"
Minimum Conversion Capital Availability Amount
" has the meaning given to it in clause (f)
of Condition 7 (
Trigger Event and Viability Event
).
"
National Regulations
" means, at any time, (i) the Swiss national banking and capital adequacy
laws, and (ii) the capital adequacy regulations promulgated by the Swiss Federal Council
(
Bundesrat
) or FINMA and the interpretation thereof by FINMA or any other competent Swiss
authority, in the case of each of clauses (i) and (ii), directly applicable to UBS Group AG (and/or,
if different, the Group Holding Company) and/or the Group at such time.
10272790607-v17
72
70-41061831
"
New Conversion Condition
" has the meaning assigned to such term in subclause (e)(v) of
Condition 9 (
Conversion
).
"
New Conversion Condition Effective Date
" has the meaning assigned to such term in
subclause (e)(v) of Condition 9 (
Conversion
).
"
New Conversion Price
" has the meaning assigned to such term in subclause (e)(v) of Condition
9 (
Conversion
).
"
New Residence
" has the meaning assigned to such term in subclause (a)(v) of Condition 16
(
Issuer Substitution
).
"
New York Business Day
" means a day (other than a Saturday or a Sunday) on which
commercial banks and foreign exchange markets settle payments generally in New York City.
"
Newco
" has the meaning assigned to such term in the definition of the term "Reorganisation".
"
Non-Qualifying Relevant Event
" has the meaning assigned to such term in subclause (e)(v) of
Condition 9 (
Conversion
).
"
Notes
" means the USD 1,750,000,000 9.250 per cent. Tier 1 Capital Notes issued by the Issuer
on the Issue Date.
"
OECD
" means the Organisation for Economic Co-operation and Development.
"
Offer Settlement Period
" has the meaning given to it in clause (h) of Condition 9
(
Conversion
).
"
Ordinary Publication Date
" means each Business Day on which Quarterly Financial Accounts
are published.
"
Ordinary Shares
" means the registered ordinary shares of UBS Group AG, which as of the
Issue Date have a par value of USD 0.10 each. The Ordinary Shares deliverable on Conversion
will be newly issued from the capital range (
Kapitalband
), conditional capital (
bedingtes Kapital
)
and/or Conversion Capital of UBS Group AG, and rank
pari passu
with all other registered
ordinary shares of UBS Group AG for any and all distributions payable on them on or after the
relevant Share Creation Date.
"
Ordinary Trigger Event Notice Date
"
has the meaning assigned to such term in subclause (b)(i) of
Condition 7 (
Trigger Event and Viability Event
).
"
Other Tier 1 Contingent Convertible Capital Note
" has the meaning given to it in clause (f)
of Condition 7 (
Trigger Event and Viability Event
).
"
Parity Obligations
" means (i) all obligations of the Issuer in respect of Tier 1 Instruments
(excluding any such obligations that rank, or are expressed to rank, junior to claims in respect of
the Notes), and (ii) any other securities or obligations (including, without limitation, any guarantee,
credit support agreement or similar undertaking) of the Issuer that rank, or are expressed to rank,
pari passu
with claims in respect of the Notes and/or any Parity Obligation.
"
Paying Agent
" has the meaning assigned to such term in subclause (c)(i) of Condition 10
(
Payments; Agents
).
"
Payment Business Day
" means a day (other than a Saturday or a Sunday) on which commercial
banks and foreign exchange markets settle payments and are open for general business
(including, without limitation, dealing in foreign exchange and foreign currency deposits) in New
York City.
"
Permitted Transactions
" means:
(a)
repurchases, redemptions or other acquisitions of any Ordinary Shares in connection
with (x) any employment contract, benefit plan or similar arrangement with, or for the
benefit
of, any employees, officers, directors or consultants of any member of the
Group, (y) a dividend reinvestment or shareholder share purchase plan or (z) the
issuance of any
10272790607-v17
73
70-41061831
Ordinary Shares (or securities convertible into, or exercisable for, Ordinary
Shares) as consideration for an acquisition consummated by any member of the
Group;
(b)
market-making in Ordinary Shares as part of the securities business of any member of the
Group;
(c)
purchases of fractional interests in any Ordinary Shares pursuant to the conversion or
exchange provisions of (x) such Ordinary Shares or (y) any security convertible into, or
exercisable for, Ordinary Shares;
(d)
redemptions or repurchases of Ordinary Shares pursuant to any shareholders' rights plan;
and
(e)
distributions in cash or in kind on, or repurchases, redemptions or other acquisitions of,
any Ordinary Shares as a part of any solvent reorganisation, reconstruction, amalgamation
or merger of any member of the Group, so long as such member (or the successor entity
resulting from such reorganisation, reconstruction, amalgamation or merger) continues to
be a member of the Group.
"
Person
" means any individual, corporation, bank, partnership, joint venture, association, joint -
stock company, limited liability company, trust, unincorporated organisation or government or any
agency or political subdivision thereof.
"
Presentation Currency
" means (i) with respect to any Quarterly Financial Accounts, the
presentation currency of such Quarterly Financial Accounts, and (ii) with respect to any Reviewed
Interim Measurement, the Presentation Currency of the Quarterly Financial Accounts that will be
prepared for the relevant financial quarterly or annual period in which the relevant Extraordinary
Publication Date falls.
"
Prevailing Rate
" means, in respect of any currencies on any day, the spot rate of exchange
between the relevant currencies prevailing as at or about 12 noon (New York City time) on that
date as appearing on or derived from the Relevant Page or, if such a rate cannot be determined at
such time, the rate prevailing as at or about 12 noon (New York City time) on the immediately
preceding day on which such rate can be so determined or, if such rate cannot be so determined
by reference to the Relevant Page, the rate determined in such other manner as an Independent
Adviser determines to be appropriate.
"
Protective Measures
" has the meaning assigned to such term in the definition of the term
"Bankruptcy Event".
"
Public Sector
" means the government of, or a governmental agency or the central bank in, the
country of incorporation of the Group Holding Company.
"
Publication Date
" means an Ordinary Publication Date or an Extraordinary Publication Date, as
the case may be.
"
Qualifying Relevant Event
" has the meaning assigned to such term in subclause (e)(v) of
Condition 9 (
Conversion
).
"
Quarterly Financial Accounts
" means (i) the financial statements of the Group (including,
without limitation, the notes thereto) in respect of a financial quarter published by the Group
Holding Company, which have been reviewed by the Auditor in accordance with the International
Standards on Auditing;
provided, however
, that, if the financial statements of the Group in respect
of the last quarter of any year are not so reviewed, the term "Quarterly Financial Accounts" in
respect of such quarter will mean instead the annual financial statements of the Group (including,
without limitation, the notes thereto) in respect of such year, which have been audited by the
Auditor in accordance with the International Standards on Auditing and are published in the annual
report of the Group Holding Company for such year, or (ii) in the event that the Group does not
publish quarterly financial statements as described in clause (i) of this definition, the financial
disclosures published by the Group pursuant to and in compliance with FINMA Circular 2016/01
"Capital Adequacy Disclosures Banks", as amended from time to time, or pursuant to and in
compliance with any successor circular or regulation applicable to the Group Holding Company,
10272790607-v17
74
70-41061831
provided
that such financial disclosures are published for each financial quarter and the interim
earnings included in such disclosures have been reviewed by the Auditor in accordance with
International Standards on Auditing.
"
QIB
" has the meaning assigned to such term in subclause (b)(i) of Condition 2 (
Amount,
Denomination and Form
).
"
Recognised Stock Exchange
" means an EEA Regulated Market, a regulated, regularly
operating, recognised stock exchange in Switzerland or any other regulated, regularly operating,
recognised stock exchange or securities market in an OECD member state.
"
Record Date
" means, with respect to any Scheduled Due Date, the last Relevant Banking Day
immediately preceding such Scheduled Due Date.
"
Redemption Date
" has the meaning assigned to such term in subclause (e)(i) of Condition 6
(
Redemption and Purchase
).
"
Redemption Notice
" has the meaning assigned to such term in subclause (e)(i) of Condition 6
(
Redemption and Purchase
).
"
Reference Period
" has the meaning assigned to such term in the definition of the term "Current
Market Price".
"
Register
" means the register that the Issuer will procure to be kept by the Registrar in accordance
with the provisions of the Fiscal Agency Agreement.
"
Registrar
" means Deutsche Bank Trust Company Americas, in its capacity as registrar for the
Notes, and includes any successor registrar for the Notes appointed in accordance with the Fiscal
Agency Agreement.
"
Regulation S Global Certificate
" has the meaning assigned to such term in subclause (b)(i) of
Condition 2 (
Amount, Denomination and Form
).
"
Regulatory Event
" has the meaning assigned to such term in subclause (d)(ii) of Condition 6
(
Redemption and Purchase
).
"
Relevant Accounts
" means, in respect of any Interest Payment Date, the most recently published
audited unconsolidated annual financial statements of UBS Group AG prepared in accordance
with the Swiss Code.
"
Relevant Banking Day
" means a day other than a Saturday or Sunday, on which banks are open
for business in the place of the Specified Office of the Registrar and the Fiscal Agent.
"
Relevant Clearing System
" has the meaning assigned to such term in the definition of the term
"Indirect Holder".
"
Relevant Currency
" means USD.
"
Relevant Date
" means, with respect to any payment, (i) the date on which such payment first
becomes due under the Notes (the "
Scheduled Due Date
"), or (ii) if the full amount of the money
payable on the Scheduled Due Date has not been received by the Fiscal Agent on or before the
Scheduled Due Date, the date on which the full amount of the money due on the Scheduled Due
Date has been received by the Fiscal Agent.
"
Relevant Event
" has the meaning assigned to such term in subclause (e)(v) of Condition 9
(
Conversion
).
"
Relevant Page
" means the page on Bloomberg or such other information service provider that
displays the relevant information.
"
Relevant Shares
" has the meaning assigned to such term in subclause (e)(v) of Condition 9
(
Conversion
).
10272790607-v17
75
70-41061831
"
Relevant Stock Exchange
" means the New York Stock Exchange or, if at the relevant time the
Ordinary Shares are not at that time listed and admitted to trading on the New York Stock
Exchange, the principal stock exchange or securities market on which the Ordinary Shares are
then listed, admitted to trading or quoted or accepted for dealing (if any).
"
Reorganisation
" means proceedings that effect the interposition of a corporation or other
limited liability company ("
Newco
") between the Shareholders immediately prior to such
proceedings (the "
Existing Shareholders
") and UBS Group AG,
provided
that (i) only ordinary
shares or units or equivalent of Newco or depositary or other receipts or certificates representing
ordinary shares or units or equivalent of Newco are issued to Existing Shareholders, (ii)
immediately after completion of such proceedings the only holders of ordinary shares, units or
equivalent of Newco or the only holders of depositary or other receipts or certificates
representing ordinary shares or units or equivalent of Newco, as the case may be, are Existing
Shareholders holding in the same proportions as immediately prior to completion of such
proceedings, (iii) immediately after completion of such proceedings, Newco is (or one or more
wholly-owned subsidiaries of Newco are) the only shareholder of UBS Group AG, (iv) all
subsidiaries of UBS Group AG immediately prior to such proceedings (other than Newco, if
Newco is then a subsidiary of UBS Group AG) are subsidiaries of UBS Group AG (or of Newco)
immediately after completion of such proceedings, and (v) immediately after completion of such
proceedings, UBS Group AG (or Newco) holds, directly or indirectly, the same percentage of the
ordinary share capital and equity share capital of those subsidiaries as was held by UBS Group
AG immediately prior to such proceedings.
"
Reset Date
" means the First Call Date and each day that falls on the fifth anniversary of the
immediately preceding Reset Date.
"
Reset Determination Date
" means, in relation to any Reset Interest Period, the day falling two
Business Days prior to the Reset Date on which such Reset Interest Period commences.
"
Reset Interest Amount
" has the meaning assigned to such term in clause (b) of Condition 5
(
Interest
).
"
Reset Interest Period
" means each period from (and including) any Reset Date and ending on
(but excluding) the next Reset Date.
"
Reset Interest Rate
" means, in relation to any Reset Interest Period, the sum of the Margin and
the Treasury Yield in relation to such Reset Interest Period.
"
Restructuring Proceedings
" has the meaning assigned to such term in the definition of the term
"Bankruptcy Event".
"
Reviewed Interim Measurement
" means an interim measurement of the CET1 Ratio, with
respect to which the Auditor has performed procedures in accordance with the International
Standard on Related Services (and relevant Swiss standards and practices) applicable to agreed-
upon procedures engagements.
"
Rule 144A
" has the meaning assigned to such term in subclause (b)(i) of Condition 2 (
Amount,
Denomination and Form
).
"
Rule 144A Global Certificate
" has the meaning assigned to such term in subclause (b)(i) of
Condition 2 (
Amount, Denomination and Form
).
"
Scheduled Due Date
" has the meaning assigned to such term in the definition of the term
"Relevant Date".
"
Securities
" means any shares in the capital of UBS Group AG, or any options, warrants or other
rights to subscribe for or purchase or acquire shares in the capital of UBS Group AG, excluding
all Other Tier 1 Contingent Convertible Capital Notes (and each a "
Security
").
"
Senior Obligations
" means all obligations of the Issuer that are unsubordinated or that are
subordinated and do not constitute either Junior Obligations or Parity Obligations.
10272790607-v17
76
70-41061831
"
Settlement Agency Agreement
" means the Settlement Agency Agreement dated as of the Issue
Date, between the Issuer and the Settlement Agent, as amended, supplemented or otherwise
modified from time to time.
"
Settlement Agent
" means UBS AG, in its capacity as settlement agent for the Notes, and
includes any successor settlement agent for the Notes appointed in accordance with these Terms
and Conditions.
"
Settlement Date
" means:
(a)
with respect to any Note in relation to which a valid Settlement Shares Settlement Notice
is received by the Settlement Share Depository (or any of its agents designated for such
purpose in the Trigger Event Conversion Notice or Viability Event Conversion Notice,
as applicable) on or before the Settlement Notice Cut-off Date,
(i)
if the Trigger Event Conversion Notice specified that the Issuer will not appoint
a Settlement Shares Offer Agent to conduct a Settlement Shares Offer or if the
Issuer gave a Viability Event Conversion Notice, the date that is two Business
Days after the date on which the relevant Settlement Shares Settlement Notice
has been so received by the Settlement Share Depository (or such agent); or
(ii)
if the Trigger Event Conversion Notice specified that the Issuer will appoint a
Settlement Shares Offer Agent to conduct a Settlement Shares Offer, the date
that is two Business Days after the later of (x) the date on which the Offer
Settlement Period expires or is terminated and (y) the date on which the relevant
Settlement Shares Settlement Notice has been so received by the Settlement
Share Depository (or such agent); and
(b)
with respect to any Note in relation to which a valid Settlement Shares Settlement Notice
is not received by the Settlement Share Depository (or any of its agents designated for
such purpose in the Trigger Event Conversion Notice or Viability Event Conversion
Notice, as applicable) on or before the Settlement Notice Cut-off Date, the date on which
the Settlement Share Depository delivers the relevant Ordinary Shares and/or cash
proceeds of the Settlement Shares Offer, as applicable, to which the Holder of such Note
is entitled pursuant to Condition 9 (
Conversion
) to such Holder.
"
Settlement Notice Cut-off Date
" means the date specified as such in the Trigger Event
Conversion Notice or the Viability Event Conversion Notice, as applicable, which date shall be at
least 20 Business Days following the applicable Suspension Date.
"
Settlement Share Depository
" means a reputable independent financial institution, clearing
institution, trust company or similar entity, to be appointed by the Issuer on or prior to any date
when a function ascribed to the Settlement Share Depository in these Terms and Conditions is
required to be performed to perform such functions, who will hold Ordinary Shares in a
designated trust account for the benefit of the Holders and otherwise on terms consistent with
these Terms and Conditions.
"
Settlement Shares Offer
" has the meaning given to it in clause (h) of Condition 9
(
Conversion
).
"
Settlement Shares Offer Agent
" has the meaning given to it in clause (h) of Condition 9
(
Conversion
).
"
Settlement Shares Settlement Notice
" has the meaning given to it in clause (j) of Condition 9
(
Conversion
).
"
Share Creation Date
" means, in relation to Ordinary Shares to be issued and delivered on
Conversion, the date falling after the relevant Trigger Event Conversion Notice or Viability
Event Conversion Notice, as the case may be, and on or prior to the applicable Conversion Date
on which as a matter of Swiss law the relevant Ordinary Shares are paid up.
"
Shareholders
" means the holders of Ordinary Shares.
10272790607-v17
77
70-41061831
"
SIX SIS
" means SIX SIS Ltd and any successor thereto.
"
Specified Office
" means (i) in the case of Deutsche Bank Trust Company Americas, as Fiscal
Agent, Paying Agent and Registrar, Trust and Agency Services, 1 Columbus Circle, 17th Floor,
Mail Stop: NYC01-1710, New York, NY 10019, USA, Attn: Corporates Team, UBS Group AG,
(ii) in the case of UBS AG, as Swiss Paying Agent, Calculation Agent and Settlement Agent,
Bahnhofstrasse 45, 8001 Zurich, Switzerland, (iii) in the case of any other Agent, such office as
is notified by the Issuer to the Holders in accordance with Condition 15 (
Notices
) as soon as
practicable after the appointment of such Agent, and (iv) in the case of the Settlement Share
Depository, the office designated as such in the applicable Trigger Event Conversion Notice or
Viability Event Conversion Notice, as the case may be, or, in the case of each of clauses (i), (ii),
(iii) and (iv), such other office as the relevant Agent or Settlement Share Depository may
designate from time to time by providing notice to the Issuer and the Holders in accordance with
Condition 15 (
Notices
).
"
Substitute Issuer
" has the meaning assigned to such term in clause (a) of Condition 16 (
Issuer
Substitution
).
"
Substitution Documents
" has the meaning assigned to such term in subclause (a)(iv) of
Condition 16 (
Issuer Substitution
).
"
Substitution or Amendment Effective Date
" has the meaning assigned to such term in
subclause (b)(iii) of Condition 14 (
Meeting of Holders; Substitution and Amendment
).
"
Suspension Date
" means the date specified in the Trigger Event Conversion Notice or the
Viability Event Conversion Notice, as applicable, as the date on which the Depositary is expected
to suspend all clearance and settlement of transactions in the Notes in accordance with its rules
and procedures, which date is expected to be, if such Trigger Event Conversion Notice specifies
that the Issuer will appoint a Settlement Shares Offer Agent to conduct a Settlement Shares Offer,
as proximate to the expiration or termination of the Offer Settlement Period as is reasonably
practicable in accordance with the rules and procedures of the Depositary;
provided
,
however
,
that, for purposes of clause (j) of Condition 9 (
Conversion
) only, if the date on which the
Depositary actually suspends such clearance and settlement is different from the date specified in
the Trigger Event Conversion Notice or the Viability Event Conversion Notice, as applicable,
then "Suspension Date" will mean the date on which the Depositary actually suspends such
clearance and settlement.
"
Swiss Code
" means the Swiss Code of Obligations of 30 March 1911, as amended from time to
time.
"
Swiss Paying Agent
" has the meaning assigned to such term in subclause (c)(i) of Condition 10
(
Payments; Agents
).
"
Swiss Resolution Power
" means any statutory power of FINMA that it may exercise during
Restructuring Proceedings as set forth in article 28 et seqq. of the FBA or in any implementing
ordinance or successor Swiss law or regulation or analogous Swiss law or regulation applicable
to bank holding companies incorporated under the laws of Switzerland such as UBS Group AG,
including, without limitation, the power to (i) transfer the assets of the entity subject to such
Restructuring Proceedings, or portions thereof, together with such entity's debt, other liabilities
and contracts, or portions thereof, to another entity, (ii) stay (for a maximum of two business
days) the termination of, or the exercise of (w) rights to terminate, (x) netting rights, (y) rights to
enforce or dispose of certain types of collateral or (z) rights to transfer claims, liabilities or
certain collateral under, contracts to which the entity subject to such Restructuring Proceedings is
a party,
(iii) partially or fully convert the debt of the entity subject to such Restructuring Proceedings into
equity, and/or (iv) partially or fully write-down the obligations of the entity subject to such
Restructuring Proceedings.
"
Tax Event
" has the meaning assigned to such term in subclause (c)(ii) of Condition 6
(
Redemption and Purchase
).
"
Tax Jurisdiction
" means Switzerland.
10272790607-v17
78
70-41061831
"
Taxes
" has the meaning assigned to such term in clause (a) of Condition 11 (
Taxation
).
"
Threshold Ratio
" means 7 per cent.
"
Tier 1 Capital
" means Additional Tier 1 Capital or any item that qualifies as common equity
tier 1 capital pursuant to National Regulations.
"
Tier 1 Instruments
" means any and all (i) securities or other obligations (other than Tier 1
Shares) issued by UBS Group AG or (ii) shares, securities, participation securities or other
obligations (other than Tier 1 Shares) issued by a subsidiary of UBS Group AG and having the
benefit of a guarantee, credit support agreement or similar undertaking of UBS Group AG, each
of which shares, securities, participation securities or other obligations described in clauses (i)
and
(ii) of this definition qualify, or are issued in respect of a security that qualifies, as Tier 1 Capital
of the Group and/or UBS Group AG (without regard to quantitative limits on such capital) on a
consolidated (
Finanzgruppe
) or on an unconsolidated (
Einzelinstitut
) basis.
"
Tier 1 Shares
" means all classes of share capital and participation certificates (if any) of UBS
Group AG or any subsidiary of UBS Group AG that qualify as common equity tier 1 capital of
the Group and/or UBS Group AG under National Regulations on a consolidated (
Finanzgruppe
)
or on an unconsolidated (
Einzelinstitut
) basis.
"
Treasury Yield
" means, in relation to any Reset Interest Period,
(a)
the rate per annum equal to the semi-annual equivalent yield to maturity, that represents
the average of such yield to maturity for the five consecutive New York Business Days
ending on and including the applicable Reset Determination Date, for a five-year
maturity, appearing under the caption "Treasury constant maturities" in the most recent
H.15; or
(b)
if the Treasury Yield for such Interest Reset Period cannot be determined pursuant to
clause (a) above, the rate per annum equal to the semi-annual equivalent yield to maturity
determined by interpolation between the most recent average of such yield to maturity,
such average to be determined for the five consecutive New York Business Days ending
on and including the applicable Reset Determination Date, for two series of US Treasury
securities trading in the public securities market, (i) one maturing as close as possible to,
but earlier than, the first Reset Date following the next succeeding Reset Determination
Date, and (ii) the other maturing as close as possible to, but later than, the first Reset Date
following the next succeeding Reset Determination Date; or
(c)
if the Treasury Yield for such Interest Reset Period cannot be determined pursuant to
clause (b) above, the rate per annum equal to the semi-annual equivalent yield to maturity
for a five-year maturity for the last available date preceding the applicable Reset
Determination Date, appearing under the caption "Treasury constant maturities" in the
H.15 that has been most recently published prior to the applicable Reset Determination
Date,
in each case, as determined by the Calculation Agent on the applicable Reset Determination Date.
For purposes of this definition, (i) "
H.15
" means the statistical release designated as such, or any
successor publication, published by the Board of Governors of the United States Federal Reserve
System (or any successor publication that is published by the Board of Governors of the United
States Federal Reserve System and that establishes yields on actively traded US Treasury
securities adjusted to constant maturity under the caption "Treasury constant maturities" for the
maturity of five years), and (ii) "
most recent H.15
" means, in respect of any Reset Interest
Period, the H.15 published closest in time but prior to the close of business on the second
Business Day prior to the applicable Reset Date. For purposes of clause (b) of this definition
only, "
semi-annual equivalent yield to maturity
" means, for securities with two interest
payments per year, the annualised yield to maturity of such interest payments, such annualised
yield to be calculated in accordance with standard market practice.
"
Trigger Breach Determination Date
" has the meaning assigned to such term in subclause
(b)(i) of Condition 7 (
Trigger Event and Viability Event
).
10272790607-v17
79
70-41061831
"
Trigger CET1 Ratio
" means, as of any Publication Date, (i) the sum of (x) the CET1 Capital as
of the relevant Balance Sheet Date and (y) the Higher-Trigger Amount as of such Publication Date,
divided by (ii) the BIS Risk Weighted Assets as of the relevant Balance Sheet Date, expressed as
a percentage.
"
Trigger Event
" has the meaning assigned to such term in subclause (a)(ii) of Condition 7
(
Trigger Event and Viability Event
).
"
Trigger Event Conversion Date
" has the meaning assigned to such term in subclause (b)(i) of
Condition 7 (
Trigger Event and Viability Event
).
"
Trigger Event Conversion Notice
" means a Trigger Event Notice given on or after the
occurrence of a Conversion Capital Availability Event.
"
Trigger Event Notice
" has the meaning assigned to such term in subclause (b)(i) of Condition 7
(
Trigger Event and Viability Event
).
"
Trigger Event Notice Date
" means an Ordinary Trigger Event Notice Date or an Extraordinary
Trigger Event Notice Date, as the case may be.
"
Trigger Event Write-down Date
" has the meaning assigned to such term in subclause (b)(i) of
Condition 7 (
Trigger Event and Viability Event
).
"
Trigger Event Write-down Notice
" means a Trigger Event Notice given prior to the
occurrence of a Conversion Capital Availability Event.
"
US
" or "
United States
" means the United States of America (including the States and the District
of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
"
US Exchange Act
" means the US Securities Exchange Act of 1934, as amended from time to
time.
"
US Investment Company Act
" means the US Investment Company Act of 1940, as amended
from time to time.
"
US Securities Act
" means the US Securities Act of 1933, as amended from time to time.
"
US Transfer Agent
" means Computershare Trust Company, N.A., in its capacity as US transfer
agent for the Ordinary Shares, and includes any successor US transfer agent for the Ordinary
Shares that may be appointed by UBS Group AG from time to time.
"
USD
" means United States dollars.
"
Viability Event
" has the meaning assigned to such term in subclause (c)(ii) of Condition 7
(
Trigger Event and Viability Event
).
"
Viability Event Conversion Date
" has the meaning assigned to such term in subclause (c)(i) of
Condition 7 (
Trigger Event and Viability Event
).
"
Viability Event Conversion Notice
" means a Viability Event Notice in respect of which the
Viability Event has occurred on or after the occurrence of a Conversion Capital Availability
Event.
"
Viability Event Notice
" has the meaning assigned to such term in subclause (c)(i) of Condition
7 (
Trigger Event and Viability Event
).
"
Viability Event Write-down Date
" has the meaning assigned to such term in subclause (c)(i) of
Condition 7 (
Trigger Event and Viability Event
).
Viability Event Write-down Notice
" means a Viability Event Notice in respect of which the
Viability Event has occurred prior to the occurrence of a Conversion Capital Availability Event.
"
Volume Weighted Average Price
" means, in respect of an Ordinary Share or other Security on
any dealing day, the order book volume-weighted average price (rounded to the same number of
10272790607-v17
80
70-41061831
decimal places as the initial Conversion Price) of an Ordinary Share or such other Security, as the
case may be, published on or by or derived from (i) in the case of an Ordinary Share, the relevant
Bloomberg page, or (ii) in the case of a Security other than Ordinary Shares, the principal stock
exchange or securities market on which such Security is then listed or quoted or dealt in, if any, or,
in the case of each of clauses (i) and (ii), such other source as an Independent Adviser determines
to be appropriate, on such dealing day,
provided
that if on any such dealing day such price is not
available or cannot otherwise be determined as provided above, the Volume Weighted Average
Price of an Ordinary Share or such other Security, as the case may be, in respect of such dealing
day shall be (i) the Volume Weighted Average Price, determined as provided above, on the most
recently preceding dealing day on which the same can be so determined, or (ii) determined in such
other manner as an Independent Adviser determines to be appropriate.
"
Write-down Date
" means, with respect to any Contingent Write -down, the Trigger Event Write-
down Date or Viability Event Write -down Date, as applicable.
2.
AMOUNT, DENOMINATION AND FORM
(a)
Amount and denomination
The initial aggregate principal amount of the Notes will be USD 1,750,000,000. The
Notes will be issued to Holders in minimum denominations of USD 200,000 and integral
multiples of USD 1,000 in excess thereof. The principal amount of the Notes may be
written down in the circumstances and in the manner described in Condition 8
(
Contingent Write-down
). The Notes may be held and transferred only in minimum
denominations of USD 200,000 and integral multiples of USD 1,000 in excess thereof.
(b)
Global Certificates
(i)
Notes that are initially sold in the United States to "qualified institutional
buyers" (each, a "
QIB
") within the meaning of Rule 144A under the US
Securities Act ("
Rule 144A
") are initially represented by one or more permanent
registered global certificates (each, a "
Rule 144A Global Certificate
"), without
interest coupons, deposited with the Fiscal Agent as custodian for, and
registered in the name of Cede & Co. as nominee for, DTC. Notes that are
initially sold in an "offshore transaction" within the meaning of Regulation S of
the US Securities Act are initially represented by one or more permanent
registered global certificates (each, a "
Regulation S Global Certificate
"),
without interest coupons, deposited with the Fiscal Agent as custodian for, and
registered in the name of Cede & Co. as nominee for, DTC,
provided
that upon
such Regulation S Global Certificate's deposit, all beneficial interests in the
Notes represented thereby are maintained at or through Euroclear and/or
Clearstream, Luxembourg until expiration of the Distribution Compliance
Period. The form of Regulation S Global Certificate and the form of Rule 144A
Global Certificate are set out in the Fiscal Agency Agreement, which will be
made available by the Registrar to any Holder or Indirect Holder upon written
request.
(ii)
The aggregate principal amount of the Notes represented by each of the Global
Certificates may from time to time be increased or decreased by adjustments
made on the records of the Registrar. Each Global Certificate shall have affixed
a schedule for the purpose of recording adjustments in the aggregate principal
amount thereof;
provided
,
however
, that, in the event of a discrepancy between
the principal amounts recorded on such schedule and the amounts listed on the
records of the Registrar, the principal amounts listed on the records of the
Registrar will control. Any beneficial interest of an Indirect Holder in any Note
represented by one of the Global Certificates that is transferred to a Person who
takes delivery in the form of a beneficial interest in such Note represented by
another Global Certificate will, upon transfer, cease to be a beneficial interest in
such first Global Certificate and become a beneficial interest in the other Global
Certificate and, accordingly, will thereafter be subject to all transfer restrictions,
if any, and other procedures applicable to beneficial interests in such other
Global Certificate for as long as it retains such an interest.
10272790607-v17
81
70-41061831
(iii)
So long as the Notes are represented by one or more Global Certificates
deposited with, or with a custodian for, the Depositary, the Holder of a Global
Certificate may grant proxies and otherwise authorise any Person, including,
without limitation, participants of a Relevant Clearing System and Persons that
may hold interests through such participants, to take any action that the Holder
is entitled to take under these Terms and Conditions or the Notes (including,
without limitation, delivery of a Settlement Shares Settlement Notice following
a Conversion Event in accordance with clause (j) of Condition 9 (
Conversion
)),
and nothing in these Terms and Conditions will prevent the Issuer or the Agents
or the Settlement Share Depository (if any) or any of their respective agents
from giving effect to any such proxies or other authorisations furnished by the
Holder of a Global Certificate for purposes of this subclause (b)(iii). Although
the Holders are the only Persons entitled to participate in, and vote at, any
meeting of Holders, so long as the Notes are represented by one or more Global
Certificates deposited with, or with a custodian for, the Depositary, the Holder
of a Global Certificate shall (A) obtain instructions from the relevant Indirect
Holders in respect of any meeting of Holders, (B) vote at such meeting in
respect of each Note represented by such Global Certificate in accordance with
the instructions received from the relevant Indirect Holder and (C) abstain from
representing any Note represented by such Global Certificate at a meeting of
Holders for which it has not received an instruction from the relevant Indirect
Holder. Only the Notes represented by such Global Certificate for which the
Holder received an instruction by the relevant Indirect Holder to take part at a
meeting of Holders will be deemed to be present or represented at such meeting.
(c)
Definitive Certificates
(i)
Definitive Notes in registered form (each, a "
Definitive Certificate
") shall be
issued, and a Global Certificate will be exchanged, in whole, but not in part, for
Definitive Certificates, if (and only if):
(A)
the Depositary notifies the Issuer that it is no longer willing or able to
discharge properly its responsibilities as depositary with respect to some
or all of the Global Certificates, or ceases to be a "clearing agency"
registered under the US Exchange Act; or
(B)
at any time the Depositary is no longer eligible to act as such, or the
Notes
cease for any reason to be eligible for clearing through the
Depositary, and the Issuer is unable to locate a qualified successor
within 90 days of receiving notice of such ineligibility of the Depositary
or of the Notes, as the case may be, from or on behalf of the Depositary;
or
(C)
issuance of the Definitive Certificates is required by Swiss or other
applicable laws or regulations in connection with the enforcement of
rights under the Notes; or
(D)
the Issuer provides its consent.
(ii)
If a Global Certificate is to be exchanged for Definitive Certificates pursuant to
subclause (i) of this clause (c), the Issuer will procure the prompt delivery (free
of charge) of Definitive Certificates to the Fiscal Agent, duly executed without
interest coupons, registered in the names of the relevant Indirect Holders,
addresses and denominations provided in a written notice to be given by the
Depositary or the Issuer to the Fiscal Agent (which notice shall be given subject
to the Depositary's procedures and also specify the taxpayer identification
number, if any, of each Person in whose name such Definitive Certificates are to
be registered). Upon written direction of the Issuer, the Fiscal Agent will deliver
such Definitive Certificates to the Holders thereof no later than five Business
Days after receipt by the Fiscal Agent of the written notice provided by the
Depositary (or the Issuer, as applicable) referred to above (and any other
necessary information as the Fiscal Agent may reasonably request from the
Issuer at such
10272790607-v17
82
70-41061831
time). The Fiscal Agent shall promptly cancel and deliver to the Issuer the
surrendered Global Certificates. The form of Definitive Certificate that will be
issued in exchange for a beneficial interest in a Note represented by a Rule
144A Global Certificate and the form of Definitive Certificate that will be
issued in exchange for a beneficial interest in a Note represented by a
Regulation S Global Certificate are set out in the Fiscal Agency Agreement,
which will be made available by the Registrar to any Holder or Indirect Holder
upon written request
.
(iii)
If Definitive Certificates have been issued pursuant to this Condition 2(c), any
Definitive Certificate that is lost, stolen, mutilated, defaced or destroyed may be
replaced, subject to applicable laws and regulations, at the Specified Office of the
Fiscal Agent upon payment by the claimant of the fees, costs and expenses
incurred by the Fiscal Agent and the Issuer in connection therewith and on such
terms as to evidence, security and indemnity (which may provide, among other
things, that if the Definitive Certificate allegedly or actually lost, stole or
destroyed is subsequently presented for payment there shall be paid to the Issuer
on demand the amount payable by the Issuer in respect of such Definitive
Certificate subsequently presented) as the Issuer may require. Mutilated or
defaced Definitive Certificates must be surrendered before replacements will be
issued.
3.
TRANSFER
(a)
General
(i)
Subject to Conditions 3(b) and 3(c), title to Notes will pass on transfer by
assignment (
Zession
) and due registration in the Register. All transfers of Notes
and entries on the Register will be made subject to the provisions concerning
transfers of Notes set forth in the Fiscal Agency Agreement, which will be made
available by the Registrar to any Holder or Indirect Holder upon written request.
(ii)
Transfers of Notes, or of beneficial interests in Notes represented by Global
Certificates, may be made only in accordance with the legend set forth upon the
face of the applicable Global Certificate or Definitive Certificate, and the
Registrar will not be required to accept for registration of transfer any Note or
beneficial interests in Notes except upon presentation of evidence satisfactory to
the Fiscal Agent and the Registrar that such transfer is being made in compliance
with such legend.
(iii)
Transfers of Notes and the issue of new Global Certificates or Definitive
Certificates, as the case may be, on transfer will be effected without charge by or
on behalf of the Issuer or the Registrar, but upon payment of any tax or other
governmental charges that may be imposed in relation to the transfer (or the
giving of such indemnity as the Fiscal Agent or the Registrar may require) by the
Holder.
(iv)
No Holder may require the transfer of a Note to be registered (x) if the Notes are
to be redeemed pursuant to Condition 6 (
Redemption and Purchase
), during the
period of 15 days ending on (and including) the relevant Redemption Date, or
(y) during the period of 15 days ending on (and including) the Record Date for
any Interest Payment Date.
(v)
No Person (including any Indirect Holder) other than the Holder(s) will have
any rights, or be owed any obligations by the Issuer, under the Notes. Payments
of principal, interest or any other amount in respect of Notes will be made only
to the Person shown on the Register as the registered holder of such Note (i.e.,
the Holder) at close of business on the relevant Record Date.
(b)
Transfer of Notes represented by a Global Certificate
10272790607-v17
83
70-41061831
(i)
Global Certificates may be transferred only in whole, but not in part, and only to
a Relevant Clearing System or any of their respective successors or nominees, in
each case located outside of Switzerland, except as provided below. Beneficial
interests of Indirect Holders in Notes represented by Global Certificates may be
transferred only in accordance with the rules and procedures of such Relevant
Clearing System, the provisions of the Fiscal Agency Agreement and this
Condition 3(b).
(ii)
A beneficial interest in a Note represented by a Regulation S Global Certificate
may be transferred to a Person who takes delivery in the form of a beneficial
interest in a Note represented by a Rule 144A Global Certificate during the
Distribution Compliance Period, only if such exchange occurs in connection with
a transfer of beneficial interests in the Notes pursuant to Rule 144A and the
transferor first delivers to the Fiscal Agent and the Registrar a written certificate
substantially in the form of a certificate available on request from the Registrar to
the effect that the beneficial interests in the Notes are being transferred to a Person
who the transferor reasonably believes is a QIB within the meaning of Rule 144A
under the US Securities Act, purchasing the beneficial interests in the Notes for
its own account or the account of a QIB in a transaction meeting the requirements
of Rule 144A and in accordance with all applicable securities laws of the states
of the United States and other jurisdictions.
(iii)
A beneficial interest in a Note represented by a Rule 144A Global Certificate may
be transferred to a Person who takes delivery in the form of a beneficial interest
in a Note represented by a Regulation S Global Certificate, whether before or after
the expiration of the Distribution Compliance Period, only if the transferor first
delivers to the Fiscal Agent and the Registrar a written certificate substantially in
the form of a certificate available on request from the Registrar to the effect that
the transfer is being conducted in compliance with Rule 903 or Rule 904 of
Regulation S under the US Securities Act.
(iv)
Until the termination of the Distribution Compliance Period, beneficial interests
in any Regulation S Global Certificate may be held only through participants
acting for and on behalf of Euroclear and/or Clearstream, Luxembourg,
provided
that this subclause (iv) shall not prohibit any transfer in accordance with
subclause (ii) of this Condition 3(b).
(c)
Transfer of Notes represented by a Definitive Certificate
(i)
If and when Definitive Certificates have been issued pursuant to Condition 2(c),
one or more Notes may be transferred only in accordance with the legends set
forth upon the face of the relevant Definitive Certificate and only upon the
surrender (at the Specified Office of the Registrar) of the Definitive Certificate
representing such Notes to be transferred, together with the form of transfer
attached to such Definitive Certificate (or another form of transfer substantially
in the same form and containing the same representations and certifications (if
any), unless otherwise agreed by the Issuer), duly completed and executed and
any other evidence as the Fiscal Agent and the Registrar may reasonably
require. A new Definitive Certificate shall be issued to the transferee in respect
of the Notes that are the subject of the relevant transfer and, in the case of a
transfer of part only of a holding of Notes represented by one Definitive
Certificate, a new Definitive Certificate in respect of the balance of the Notes
not transferred shall be issued to the transferor. In the case of a transfer of Notes
to a Person who is already a Holder, a new Definitive Certificate representing
the enlarged holding may be issued but only against surrender of the Definitive
Certificate representing the existing holding of such Person.
(ii)
Each new Definitive Certificate to be issued pursuant to Condition 2(c) shall be
available for delivery within three Relevant Banking Days of receipt of the form
of transfer and surrender of the relevant Definitive Certificate. Delivery of new
Definitive Certificate(s) will be made at the Specified Office of the Fiscal Agent
10272790607-v17
84
70-41061831
to which delivery and surrender of such form of transfer and Definitive Certificate
or, as the case may be, surrender of such Definitive Certificate, will have been
made or, at the option of the relevant Holder and as specified in the relevant form
of transfer or otherwise in writing, be mailed by uninsured post at the risk of the
Holder entitled to the new Definitive Certificate to such address as may be so
specified, unless such Holder requests otherwise and pays in advance to the Fiscal
Agent the costs of such other method of delivery and/or such insurance as it may
specify.
(d)
Rule 144A
Each Note that is initially sold in the United States to a QIB will not be registered under
the US Securities Act, or with any securities regulatory authority of any state or other
jurisdiction of the United States and may not be sold, pledged or otherwise transferred,
except (i) in accordance with Rule 144A to a Person that the Holder and any Person acting
on its behalf reasonably believe is a QIB that is acquiring the Notes for its own account or
for the account of one or more QIBs, (ii) in an offshore transaction in accordance with
Rule 903 or 904 of Regulation S under the US Securities Act, (iii) pursuant to an
exemption from registration under Rule 144 under the US Securities Act, or in accordance
with another exemption from, or in a transaction not subject to, registration under the US
Securities Act, if available, or (iv) pursuant to an effective registration statement under the
US Securities Act, in each case, in accordance with any applicable securities laws of any
state of the United States.
4.
STATUS AND SUBORDINATION
(a)
Status
The Notes constitute direct, unsecured and subordinated obligations of the Issuer and rank
pari passu
and without any preference among themselves. The rights and claims of the
Holders against the Issuer under the Notes are subordinated as described in clause (b) of
this Condition 4.
(b)
Subordination
In the event of (i) a Bankruptcy Event or (ii) an order being made, or an effective
resolution being passed, for the liquidation or winding-up of the Issuer (except, in any such
case, a solvent liquidation or winding-up of the Issuer solely for purposes of a
reorganisation, reconstruction or amalgamation of the Issuer or the substitution in place of
the Issuer of a successor in business to the Issuer, the terms of which reorganisation,
reconstruction, amalgamation or substitution (x) have previously been approved by a valid
resolution of the Holders and (y) do not provide that the Notes shall become redeemable in
accordance with these Terms and Conditions),
(i)
if such event occurs (x) prior to the occurrence of a Conversion Capital
Availability Event, or (y) on or after the occurrence of a Conversion
Capital Availability Event but prior to the occurrence of a Conversion
Event, the rights and claims of the Holders against the Issuer in respect
of or arising under (including, without limitation, any damages awarded
for breach of any obligation under) the Notes will, subject to any
obligations that are mandatorily preferred by law, rank (A) junior to the
rights and claims of all holders of Senior Obligations,
(B)
pari passu
with the rights and claims of holders of Parity
Obligations, and
(C)
senior to the rights and claims of holders of Junior Obligations;
provided
,
however
, that, if a Conversion Event subsequently occurs while
such Bankruptcy Event or liquidation or winding-up, as the case may be,
is continuing, the rights and claims of the Holders against the Issuer in
respect of the delivery of Ordinary Shares in accordance with Condition
9 (
Conversion
) will rank as set forth in subclause (ii) below; or
(ii)
if such event occurs on or after the occurrence of a Conversion Event,
the rights and claims of the Holders against the Issuer in respect of the
delivery of Ordinary
10272790607-v17
85
70-41061831
Shares in accordance with Condition 9 (
Conversion
) will rank (A) junior
to the rights and claims of all holders of Senior Obligations, (B) junior to
the rights and claims of holders of Parity Obligations, and (C)
pari passu
with the rights and claims of holders of Junior Obligations.
(c)
Claims subject to a Contingent Write-down or a Conversion
Any claim of any Holder in respect of or arising under the Notes (including, without
limitation, any claim in relation to any unsatisfied payment obligation of the Issuer
subject to enforcement by any Holder pursuant to Condition 13 (
Events of Default
) or in
relation to the occurrence of any other Event of Default) will be subject to, and
superseded by, Condition 8 (
Contingent Write-down
) and Condition 9 (
Conversion
), as
applicable, irrespective of whether the relevant Trigger Event or Viability Event, as
applicable, has occurred, or, in the case of a Viability Event, the relevant Viability Event
Notice has been given, prior to or after the occurrence of an Event of Default or any
other event.
5.
INTEREST
(a)
Interest Payment Dates
(i)
Subject to Condition 8 (
Contingent Write-down
) and Condition 9 (
Conversion
)
and clause (g) of this Condition 5, the Notes will bear interest on their principal
amount (A) from (and including) the Issue Date to (but excluding) the First Call
Date, at the Fixed Interest Rate, and (B) thereafter, at the applicable Reset
Interest Rate.
(ii)
Subject to Condition 8 (
Contingent Write-down
) and Condition 9 (
Conversion
)
and clause (h) of this Condition 5, interest on the Notes will be payable semi-
annually in arrear on 13 May and 13 November of each year (each, an "
Interest
Payment Date
"), commencing on 13 May 2024.
(b)
Determination of the Treasury Yield,
the
Reset Interest Rate and
the
Reset Interest
Amount in relation to each Reset Interest Period
With respect to each Reset Interest Period, the Calculation Agent will, as soon as
practicable on the Reset Determination Date in relation to such Reset Interest Period,
determine the Treasury Yield and the Reset Interest Rate for such Reset Interest Period
and calculate the amount of interest payable per Calculation Amount on the Interest
Payment Date in relation to each Interest Period falling in such Reset Interest Period (each,
a "
Reset Interest Amount
").
(c)
Publication of Reset Interest Rate and interest amount payable upon redemption
With respect to each Reset Interest Period, as soon as practicable after such determination
but in any event no later than the relevant Reset Date, the Calculation Agent will cause
(i) the relevant Reset Interest Rate and the relevant Reset Interest Amount determined by
it, together with the Interest Payment Date in relation to each Interest Period falling in
such Reset Interest Period, to be notified to the Issuer and the Paying Agents and (ii) the
relevant Reset Interest Rate determined by it to be notified to any stock exchange or other
relevant authority on which the Notes are at the relevant time listed and to be published in
accordance with Condition 15 (
Notices
).
The Calculation Agent shall calculate any interest amount payable on any Redemption
Date (if the Notes are to be redeemed pursuant to Condition 6 (
Redemption and
Purchase
))
and cause such interest amount to be notified to Issuer and the Paying Agents
and to any stock exchange or other relevant authority on which the Notes are at the
relevant time listed and to be published in accordance with Condition 15 (
Notices
) no
later than two Business Days prior to such Redemption Date.
10272790607-v17
86
70-41061831
(d)
Calculation of amount of interest payable per Calculation Amount
Subject to Condition 8 (
Contingent Write -down
) and Condition 9 (
Conversion
) and clause
(h) of this Condition 5:
(i)
the amount of interest payable per Calculation Amount on each Interest Payment
Date to (and including) the First Call Date in respect of the Notes will be
USD 46.25; and
(ii)
if interest is required to be paid in respect of a Note on any other date (including,
for the avoidance of doubt, the Reset Interest Amount), the amount of interest
payable per Calculation Amount on such date will be calculated by:
(A)
applying the applicable Interest Rate to the Calculation Amount;
(B)
multiplying the product thereof by the Day Count Fraction; and
(C)
rounding the resulting figure to the nearest cent (half a cent being
rounded upwards).
(e)
Calculation of amount of interest payable per Note
Subject to Condition 8 (
Contingent Write-down
) and Condition 9 (
Conversion
) and
clause (h) of this Condition 5, the amount of interest payable in respect of a Note will be
the product of:
(i)
the amount of interest per Calculation Amount; and
(ii)
the number by which the Calculation Amount is required to be multiplied to equal
the denomination of such Note.
(f)
Notifications, etc. to be final
All notifications, opinions, determinations, certificates, calculations, quotations and
decisions given, expressed, made or obtained by the Calculation Agent for purposes of
this Condition
binding on the Issuer, the Agents and the Holders and (in the absence of wilful default
and bad faith) no liability to the Issuer or the Holders will attach to the Calculation
Agent in connection with the exercise or non-exercise by the Calculation Agent of its
powers, duties and discretions under this Condition 5.
(g)
Accrual of interest in the case of redemption or a Trigger Event or a Viability Event
(i)
Subject to Condition 8 (
Contingent Write -down
) and Condition 9 (
Conversion
),
if the Notes are to be redeemed pursuant to clause (b), (c) or (d) of Condition 6
(
Redemption and Purchase
), interest on the Notes will accrue to (but excluding)
the relevant Redemption Date, and will cease to accrue on such Redemption
Date;
provided
,
however
, that if the payment with respect to any Note is
improperly withheld or refused on such Redemption Date, interest will continue
to accrue on the principal amount of such Note (both before and after judgment)
at the relevant Interest Rate to the Relevant Date.
(ii)
Upon the occurrence of a Trigger Event or a Viability Event, interest on the
Notes will cease to accrue from (and including) the date on which such Trigger
Event or Viability Event occurs.
(h)
Cancellation of interest; prohibited interest
(i)
The Issuer may, in its sole discretion, elect to cancel all or part of any payment
of interest on the Notes (including, for the avoidance of doubt, any related
Additional Amounts) that is otherwise scheduled to be paid on an Interest
Payment Date. This subclause (h)(i) is without prejudice to the provisions of
10272790607-v17
87
70-41061831
subclause (h)(ii) of this Condition 5. Non-payment of any amount of interest by
the Issuer to the Fiscal Agent will constitute evidence of cancellation of the
relevant payment, whether or not notice of cancellation has been given by the
Issuer.
If practicable, the Issuer shall provide notice of any cancellation of interest (in
whole or in part) pursuant to this subclause (h)(i) to the Holders on or prior to the
relevant Interest Payment Date. If practicable, the Issuer shall endeavour to
provide such notice at least five Business Days prior to the relevant Interest
Payment Date. Failure to provide such notice will not have any impact on the
effectiveness of, or otherwise invalidate, any such cancellation of interest, or give
Holders any rights as a result of such failure.
(ii)
The Issuer will be prohibited from making, in whole or in part, any payment of
interest on the Notes (including, for the avoidance of doubt, any related
Additional Amounts) on the relevant Interest Payment Date if and to the extent
that:
(A)
the amount of Distributable Items as at such Interest Payment Date is
less than the sum of (1) the amount of such interest payment, plus (2)
all other payments (other than redemption payments) made by UBS
Group AG on or in respect of the Notes or any Parity Obligations or
Junior Obligations since the balance sheet date of the Relevant
Accounts and prior to such Interest Payment Date, plus (3) all payments
(other than redemption payments) payable by UBS Group AG on such
Interest Payment Date on or in respect of any Parity Obligations or
Junior Obligations, in the case of each of subclauses (1), (2) and (3),
excluding any portion of such payments already accounted for in
determining the amount of such Distributable Items; and/or
(B)
UBS Group AG is not, or will not immediately after the relevant
payment of interest be, in compliance with all applicable minimum
capital adequacy requirements of the National Regulations on a
consolidated (
Finanzgruppe
) basis (for the avoidance of doubt, it being
understood that such minimum requirements will reflect any reduction
in such requirements granted by FINMA to the Group pursuant to the
Capital Adequacy Ordinance); and/or
(C)
FINMA has required the Issuer not to make such interest payment.
The Issuer shall deliver a certificate signed by the Authorised Signatories to the
Fiscal Agent and shall give notice in accordance with Condition 15 (
Notices
) to
the Holders, in each case as soon as practicable following any determination that
interest is required to be cancelled pursuant to this subclause (h)(ii) or, where no
such prior determination is made, promptly following any Interest Payment Date
on which interest was scheduled to be paid if such interest is being cancelled in
accordance with this subclause (h)(ii), to such effect setting out brief details as
to the amount of interest being cancelled and the reason therefor. Failure to
provide such certificate and notice will not have any impact on the effectiveness
of, or otherwise invalidate, any such cancellation or give any Holder any rights
as a result of such failure.
(iii)
If, on any Interest Payment Date, any payment of interest scheduled to be made
on such date is not made in full pursuant to subclause (h)(i) or subclause (h)(ii) of
this Condition 5, UBS Group AG shall not, directly or indirectly,
(A)
recommend to Shareholders that any dividend or other distribution in
cash or in kind (other than in the form of Ordinary Shares) be paid or
made on any Ordinary Shares; or
10272790607-v17
88
70-41061831
(B)
redeem, purchase or otherwise acquire any Ordinary Shares other than as
a Permitted Transaction,
in each case unless and until (x) the interest payment due and payable on the
Notes on any subsequent Interest Payment Date has been paid in full (or an
amount equal to the same has been paid in full to a designated third party trust
account for the benefit of the Holders prior to payment by the trustee thereof to
the Holders on such subsequent Interest Payment Date) or, if earlier, (y) all
outstanding Notes have been cancelled in accordance with these Terms and
Conditions.
(iv)
Payments of interest on the Notes are not cumulative. Notwithstanding any other
provision in these Terms and Conditions, the cancellation or non-payment of
any interest amount by virtue of this Condition
for any purpose (including, without limitation, Condition 13 (
Events of Default
))
on the part of the Issuer. Any interest payment not paid by virtue of this
Condition 5(h) will not accumulate or be payable at any time thereafter, and
Holders will have no right thereto.
(v)
If UBS Group AG determines, after consultation with FINMA, that the Notes do
not, or will cease to, fully qualify as Additional Tier 1 Capital, (A) the Issuer
shall not, to the extent permitted under National Regulations, exercise its
discretion pursuant to subclause (h)(i) of this Condition 5 to cancel any interest
payments due on the Notes on any Interest Payment Date following the
occurrence of such determination, and (B) the Issuer shall give notice to the
Holders in accordance with Condition 15 (
Notices
) as soon as practicable after
such determination stating that the Issuer may no longer exercise its discretion
pursuant to subclause (h)(i) of this Condition 5 to cancel any interest payments
as from the date of such notice.
6.
REDEMPTION AND PURCHASE
(a)
No fixed redemption date
The Notes are perpetual securities in respect of which there is no fixed redemption date.
Unless previously redeemed (including by way of Conversion pursuant to Condition 9
(
Conversion
)) or purchased and cancelled in accordance with this Condition 6 and
subject to Condition 8 (
Contingent Write-down
) and Condition 9 (
Conversion
), the Notes
are perpetual and may only be redeemed or purchased in accordance with this Condition
6.
(b)
Redemption at the option of the Issuer
Subject to clause (e) of this Condition 6, the Issuer may elect, in its sole discretion, to
redeem the Notes, in whole but not in part, on the First Call Date or any Interest
Payment Date thereafter at their aggregate principal amount, together with any accrued
and unpaid interest thereon to (but excluding) the relevant Redemption Date.
(c)
Redemption due to a Tax Event
(i)
Subject to clause (e) of this Condition 6, upon the occurrence of a Tax Event at
any time after the Issue Date, the Issuer may elect, in its sole discretion, to
redeem the Notes, in whole but not in part, on the relevant Redemption Date at
their aggregate principal amount, together with any accrued and unpaid interest
thereon to (but excluding) such Redemption Date.
(ii)
A "
Tax Event
" will have occurred if the Issuer in making any payments on the
Notes (A) has paid, or will or would on the next payment date be required to
pay, Additional Amounts, or (B) has paid, or will or would be required to pay,
any additional Tax in respect of the Notes, in the case of each of subclauses (A)
and (B), under the laws or regulations of a Tax Jurisdiction or any political
subdivision thereof or any authority of or in a Tax Jurisdiction or any political
subdivision thereof having the power to impose, levy, collect, withhold or assess
Taxes, including, without limitation, any treaty to which a Tax Jurisdiction is a
party, or
10272790607-v17
89
70-41061831
any generally published application or interpretation of such laws (including,
without limitation, a decision of any court or tribunal, any generally published
application or interpretation of such laws by any relevant tax authority or any
generally published pronouncement by any relevant tax authority), and the Issuer
cannot avoid the foregoing by taking measures reasonably available to it.
(d)
Redemption due to a Regulatory Event
(i)
Subject to clause (e) of this Condition 6, upon the occurrence of a Regulatory
Event at any time after the Issue Date, the Issuer may elect, in its sole discretion,
to redeem the Notes, in whole but not in part, on the relevant Redemption Date at
their aggregate principal amount, together with any accrued and unpaid interest
thereon to (but excluding) such Redemption Date.
(ii)
A "
Regulatory Event
" will have occurred if any of the Notes ceases to be eligible
in full to be (A) treated as Additional Tier 1 Capital, and/or (B) counted towards
either the Going-Concern LR Requirement or the Going-Concern RWA
Requirement (or both).
(e)
Conditions for redemption
(i)
If the Issuer elects to redeem the Notes pursuant to clause (b), (c) or (d) of this
Condition 6, then the Issuer shall give the Holders not less than 15 and not more
than 60 days' prior notice in accordance with Condition 15 (
Notices
) (a
"Redemption Notice"), which notice shall, subject to subclauses (ii) and (iii) of
this clause (e), be irrevocable and specify (x) the clause of this Condition 6
pursuant to which the redemption is to be made, (y) if any Definitive Certificates
have been issued, the method by which Notes to be redeemed will be tendered,
and (z) the date (which date, in the case of a redemption pursuant to clause (c) or
(d) of this Condition 6, shall be a Payment Business Day) on which the Issuer
will redeem the Notes pursuant to such clause of this Condition 6 (such specified
date, the "
Redemption Date
").
(ii)
The Issuer may only redeem the Notes pursuant to clause (b) or (c) of this
Condition 6 on the relevant Redemption Date if FINMA has approved such
redemption on or prior to such Redemption Date, if such approval is then required
under applicable Swiss laws and regulations.
(iii)
The Issuer may only redeem the Notes pursuant to any clause of this Condition 6
on the relevant Redemption Date if no Trigger Event or Viability Event has
occurred prior to such Redemption Date.
(iv)
If the Issuer elects to redeem the Notes pursuant to clause (c) or (d) of this
Condition 6, then prior to the publication of the Redemption Notice pursuant to
subclause (e)(i) of this Condition 6, the Issuer shall deliver to the Fiscal Agent
(A) a certificate signed by the Authorised Signatories stating that the relevant
requirement or circumstance giving rise to the right to redeem under clause (c) or
(d), as applicable, of this Condition 6 is satisfied and the reasons therefor and such
certificate will be conclusive and binding on the Holders, and (B) in the case of a
redemption pursuant to clause (c) of this Condition 6 only, an opinion of
independent legal advisers of recognised standing to the effect that circumstances
entitling the Issuer to exercise its right of redemption under clause (c) of this
Condition 6 have arisen.
(f)
Purchases
The Issuer or any other member of the Group or any of their respective affiliates may at
any time purchase Notes at any price in the open market or otherwise,
provided
that
(i) such purchase complies with any limits or conditions to which any member of the
Group is subject under applicable banking laws and regulations at the time of such
purchase, (ii) other than in the case of purchases made in connection with stabilisation
10272790607-v17
90
70-41061831
measures in compliance with applicable law or in connection with any market making in
the Notes, FINMA has approved such purchase (if such approval is then required under
applicable Swiss laws and regulations) on or prior to the date of such purchase, and (iii) no
Trigger Event or Viability Event has occurred prior to the date of such purchase. Any
Notes so purchased may, at the option of the Issuer, be held, reissued, resold or cancelled.
(g)
Cancellation
All Notes redeemed in accordance with this Condition
pursuant to Condition 9 (
Conversion
) will be cancelled and may not be reissued or
resold;
provided
,
however
, that, in the case of Notes redeemed by way of Conversion,
the Issuer will not take any action to cause such Notes to be removed from the Relevant
Clearing System prior to the later of (i) the applicable Settlement Date and (ii) the Final
Cancellation Date. Following the issuance and delivery of the relevant Ordinary Shares
to the Settlement Share Depository on the Conversion Date and until the later of (i) the
applicable Settlement Date and (ii) the Final Cancellation Date, the Notes will evidence
solely the Holder's right to receive Ordinary Shares and/or cash proceeds, as the case
may be, from the Settlement Share Depository or the Settlement Shares Offer Agent (or
such other relevant recipient).
(h)
Redemption of other instruments
For the avoidance of doubt, it is understood that, if, upon the occurrence of a Tax Event
or a Regulatory Event, the Issuer does not elect to redeem the Notes pursuant to this
Condition 6, nothing in this Condition 6 or any other provision of these Terms and
Conditions will prohibit the Issuer from redeeming (whether early, at maturity or
otherwise) any other instruments issued by any member of the Group pursuant to the
terms thereof.
7.
TRIGGER EVENT AND VIABILITY EVENT
(a)
Trigger Event
(i)
Upon the occurrence of a Trigger Event:
(A)
if such Trigger Event occurs prior to the occurrence of a Conversion
Capital Availability Event, a Contingent Write-down will occur on the
applicable Trigger Event Write -down Date in accordance with Condition
8 (
Contingent Write-down
); or
(B)
if such Trigger Event occurs on or after the occurrence of a Conversion
Capital Availability Event, a Conversion will occur on the applicable
Trigger Event Conversion Date in accordance with Condition 9
(
Conversion
).
(ii)
A "
Trigger Event
" will have occurred if the Issuer gives the Holders a Trigger
Event Notice in accordance with clause (b) of this Condition 7.
(b)
Trigger Event Notice
(i)
If, with respect to any Publication Date, the Trigger CET1 Ratio as of such
Publication Date is less than the Threshold Ratio, the Issuer shall, subject to
subclauses (ii) and (iii) of this Condition 7(b), give a notice (a "
Trigger Event
Notice
") to the Holders in accordance with Condition 15 (
Notices
) (x) if such
Publication Date is an Ordinary Publication Date, within five Business Days of
such Ordinary Publication Date (such fifth Business Day, the "
Trigger Breach
Determination Date
", and the date of such notice, the "
Ordinary Trigger
Event Notice Date
"), and (y) if such Publication Date is an Extraordinary
Publication Date, on such Extraordinary Publication Date (the "
Extraordinary
Trigger Event Notice Date
"), which notice shall:
10272790607-v17
91
70-41061831
(A)
if such Trigger Event Notice is given prior to the occurrence of a
Conversion Capital Availability Event (1) state that the Trigger CET1
Ratio as of such Publication Date is less than the Threshold Ratio, and a
Contingent Write-down will take place, and (2) specify the date on
which the Contingent Write-down will take place, which date shall,
subject to postponement pursuant to subclause (ii) of this Condition
7(b), be no later than 10 Business Days after the date of such notice (the
"
Trigger Event Write -down Date
"); or
(B)
if such Trigger Event Notice is given on or after the occurrence of a
Conversion Capital Availability Event, (1) state that the Trigger CET1
Ratio as of such Publication Date is less than the Threshold Ratio, and a
Conversion will take place, (2) specify the date on which the
Conversion will take place, which date shall, subject to postponement
pursuant to subclause (ii) of this Condition 7(b), be no more than 20
Business Days after the date of such notice (the "
Trigger Event
Conversion Date
"), (3) specify the Conversion Price in effect on the
date of such Trigger Event Notice, and (4) specify the details of the
arrangement for the settlement of the Conversion (including whether or
not the Issuer will appoint a Settlement Shares Offer Agent to conduct a
Settlement Shares Offer, the Suspension Date, the details of the
Settlement Share Depository (including its Specified Office) or, if the
Issuer is unable to appoint a Settlement Share Depository prior to
giving of such notice, the other arrangements it has made in accordance
with subclause (h)(i) of Condition 9 (
Conversion
) for the issuance and
delivery of the Ordinary Shares to be issued and delivered upon
Conversion to the Holders, the procedures Holders must follow to
obtain delivery of the Ordinary Shares from the Settlement Share
Depository, the Settlement Notice Cut-Off Date and the Final
Cancellation Date).
(ii)
If a Trigger Event Notice is required to be given pursuant to subclause (i) of this
Condition 7(b), and on the relevant Publication Date any Higher-Trigger
Contingent Capital is outstanding with respect to which either (x) no Higher-
Trigger Write-down/Conversion Notice has been given prior to the Trigger
Event Notice Date or (y) a Higher-Trigger Write-down/Conversion Notice has
been given prior to the Trigger Event Notice Date, but the Trigger Event Write-
down Date or the Trigger Event Conversion Date, as applicable, is scheduled to
occur prior to the relevant Higher-Trigger Write-down/Conversion Date,
(A)
in the case of subclause (x) above, the giving of such Trigger Event
Notice will be postponed until the date on which a Higher-Trigger Write-
down/Conversion Notice has been given with respect to all such
outstanding Higher-Trigger Contingent Capital and such date will be
deemed to be the Trigger Event Notice Date; and
(B)
in the case of subclauses (x) and (y) above, if the Trigger Event Write-
down Date or the Trigger Event Conversion Date, as applicable, is
scheduled to occur prior to the Higher-Trigger Write-down/Conversion
Date (or, in the case of more than one Higher-Trigger Write-
down/Conversion Date, the latest Higher-Trigger Write-
down/Conversion Date), the Trigger Event Write-down Date or the
Trigger Event Conversion Date, as applicable, will be postponed to the
Higher-Trigger Write-down/Conversion Date (or the latest Higher-
Trigger Write-down/Conversion Date, as applicable) and such
postponement shall be specified in such Trigger Event Notice.
(iii)
If (A) a Trigger Event Notice is required to be given pursuant to subclause (i) of
this Condition 7(b) in relation to an Ordinary Publication Date, and (B) prior to
the earlier of the Ordinary Trigger Event Notice Date and the Trigger Breach
Determination Date, FINMA, upon the request of UBS Group AG, has agreed in
writing that a Contingent Write-down or a Conversion, as applicable, is not
10272790607-v17
92
70-41061831
required as a result of actions taken by the Group or circumstances or events, in
each case, that have had, or imminently will have, the effect of restoring the CET1
Ratio as of the Balance Sheet Date relating to the relevant Ordinary Publication
Date, after giving pro forma effect to such actions, circumstances or events, to a
level above the Threshold Ratio that FINMA and UBS Group AG deem, in their
sole discretion, to be adequate at such time, (x) the Issuer shall not give such
Trigger Event Notice pursuant to subclause (i) of this Condition 7(b) in relation to
the relevant Ordinary Publication Date, and (y) the Issuer shall give notice to the
Holders on or prior to the Trigger Breach Determination Date in accordance with
Condition 15 (
Notices
), which notice shall state that no Contingent Write-down or
Conversion, as applicable, will occur in relation to the relevant Ordinary
Publication Date.
(c)
Viability Event
(i)
Subject to clause (e) of this Condition 7, upon the occurrence of a Viability Event:
(A)
the Issuer shall give notice (a "
Viability Event Notice
") to the Holders
in accordance with Condition 15 (
Notices
) within three days of the date
on which such Viability Event occurred, which notice shall:
(1)
if such Viability Event occurs prior to the occurrence of a
Conversion Capital Availability Event, (x) state that a Viability
Event has occurred and a Contingent Write-down will take place
and (y) specify the date on which the Contingent Write-down
will take place, which date shall be no later than 10 Business
Days after the date of such notice (such specified date, the
"
Viability Event Write-down Date
"); or
(2)
if such Viability Event occurs on or after the occurrence of a
Conversion Capital Availability Event, (w) state that a Viability
Event has occurred and a Conversion will take place, (x) specify
the date on which the Conversion will take place, which date
shall be no more than 20 Business Days following the
occurrence of the Viability Event (the "
Viability Event
Conversion Date
"), (y) specify the Conversion Price in effect
on the date of such Viability Event Notice, and (z) specify the
details of the arrangements for the settlement of the Conversion
(including the Suspension Date, the details of the Settlement
Share Depository (including its Specified Office) or, if the Issuer
is unable to appoint a Settlement Share Depository prior to
giving of such notice, the other arrangements it has made in
accordance with subclause (h)(i) of Condition 9 (
Conversion
)
for the issuance and delivery of the Ordinary Shares to be issued
and delivered upon Conversion to the Holders, the procedures
Holders must follow to obtain delivery of the Ordinary Shares
from the Settlement Share Depository, the Settlement Notice
Cut-Off Date and the Final Cancellation Date); and
(B)
if such Viability Event occurs prior to the occurrence of a Conversion
Capital Availability Event, a Contingent Write-down will occur on the
applicable Viability Event Write-down Date in accordance Condition 8
(
Contingent Write-down
); or
(C)
if such Viability Event occurs on or after the occurrence of a Conversion
Capital Availability Event, a Conversion will occur on the applicable
Viability Event Conversion Date in accordance with Condition 9
(
Conversion
).
10272790607-v17
93
70-41061831
(ii)
A "
Viability Event
" will have occurred if prior to an Alternative Loss Absorption
Date (if any):
(A)
FINMA has notified UBS Group AG in writing that it has determined a
conversion or write-down, as applicable, of holders' claims in respect of
the Notes and all other capital instruments issued by, or other capital
obligations (whether qualifying fully or partially for capital treatment)
of, any member of the Group that, pursuant to their terms or by
operation of law, are capable of being converted into equity or written
down at that time, is, because customary measures to improve the
Group Holding Company's capital adequacy are at the time inadequate
or infeasible, an essential requirement to prevent the Group Holding
Company from becoming insolvent, bankrupt, unable to pay a material
part of its debts as they fall due or unable to carry on its business; or
(B)
customary measures to improve the Group Holding Company's capital
adequacy being at the time inadequate or infeasible, the Group Holding
Company has received an irrevocable commitment of direct or indirect
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 the Group Holding
Company's capital adequacy and without which, in the determination of
(and as notified in writing by) FINMA, the Group Holding Company
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.
For the avoidance of doubt, it is understood that a Viability Event may occur
irrespective of whether or not a Trigger Event has occurred or whether any of
the conditions to the issuance of a Trigger Event Notice have been met.
(d)
Determination of CET1 Ratio and Trigger CET1 Ratio
With respect to any Publication Date, (i) the CET1 Ratio as of the relevant Balance Sheet
Date, (ii) the Trigger CET1 Ratio as of such Publication Date and (iii) the components of
both of the foregoing, in each case, as published on such Publication Date, will be final for
purposes of this Condition 7, and any revisions, restatements or adjustments to any of the
calculations described in subclauses (i) through (iii) of this clause (d) subsequently
published will have no effect for purposes of this Condition 7.
(e)
Alternative loss absorption
In the event of the implementation of any new, or amendment to or change in the
interpretation of any existing, laws or components of National Regulations, in each case
occurring after the Issue Date, that alone or together with any other law(s) or regulation(s)
has, in the joint determination of UBS Group AG and FINMA, the effect that clause (c)
of this Condition 7 could cease to apply to the Notes without giving rise to a Regulatory
Event, then the Issuer shall give notice to the Holders in accordance with Condition 15
(
Notices
) no later than five Business Days after such joint determination stating that such
provisions will cease to apply from the date of such notice (the "
Alternative Loss
Absorption Date
"), and from the date of such notice, such provisions will cease to apply
to the Notes.
(f)
Conversion Capital Availability Event
(i)
A "
Conversion Capital Availability Event
" will have occurred on the first date
after the Issue Date on which an amendment to the Articles of Association is
registered in the main register (
Hauptregister
) of the Commercial Register
(
Handelsregister
) of the Canton of Zurich as a result of which the Conversion
Capital provided for in the Articles of Association meets or exceeds the Minimum
10272790607-v17
94
70-41061831
Conversion Capital Availability Amount. For purposes of these Terms and
Conditions, a Conversion Capital Availability Event may occur only once.
For purposes of the definition of Conversion Capital Availability Event:
"
Articles of Association
" means, at any time, the articles of association (
Statuten
)
of UBS Group AG in effect at such time.
"
Minimum Conversion Capital Availability Amount
" means, at any time, the
amount of Conversion Capital that UBS Group AG would require in order for it
to create and issue:
(A)
the number of Ordinary Shares into which the Notes outstanding at such
time would be converted if they were to be converted at the Conversion
Price in effect at such time and otherwise in accordance with these Terms
and Conditions; and
(B)
if any Other Tier 1 Contingent Convertible Capital Notes are outstanding
at such time, the number of Ordinary Shares into which such Other Tier 1
Contingent Convertible Capital Notes would be converted if they were
to be converted at the conversion price then in effect pursuant to, and
otherwise in accordance with, their respective terms at such time,
in each case, out of such Conversion Capital.
"
Other Tier 1 Contingent Convertible Capital Note
" means a capital
instrument (other than the Notes) that:
(A)
is eligible in full to be (A) treated as Additional Tier 1 Capital and
(B) counted towards either the Going-Concern LR Requirement or the
Going-Concern RWA Requirement (or both); and
(B)
subject to the terms and conditions thereof, is to be:
(x)
converted into Ordinary Shares; or
(y)
after a Conversion Capital Availability Event (or equivalent
event described in the terms and conditions thereof) occurs,
converted into Ordinary Shares,
in either case, when the CET1 Ratio (or equivalent capital measure of the
Group described in the terms and conditions thereof) falls below a certain
threshold and/or a Viability Event (or equivalent event described in the
terms and conditions thereof) occurs.
(ii)
If a Conversion Capital Availability Event occurs at any time on or prior to a
Trigger Event or a Viability Event, the Issuer shall as soon as practicable
thereafter deliver to the Fiscal Agent and the Settlement Agent a certificate signed
by the Authorised Signatories and notice to the Holders in accordance with
Condition 15 (
Notices
), in each case stating that a Conversion Capital Availability
Event has occurred and the date on which it occurred.
8.
CONTINGENT WRITE-DOWN
If the Issuer has given a Trigger Event Write-down Notice or a Viability Event Write-down Notice
in accordance with Condition 7 (
Trigger Event and Viability Event
), then on the relevant Write-
down Date:
(a)
the full principal amount of, and any accrued and unpaid interest (whether or not due and
payable) on, each Note will automatically be written down to zero, the Notes will be
cancelled and all references to the principal amount of the Notes in these Terms and
Conditions will be construed accordingly;
10272790607-v17
95
70-41061831
(b)
the Holders will be automatically deemed to have irrevocably waived their right to
receive, and will no longer have any rights against the Issuer with respect to, repayment
of the aggregate principal amount of, and payment of any accrued and unpaid interest on,
the Notes written down pursuant to subclause (a) of this Condition 8 (
bedingter
Forderungsverzicht
); and
(c)
all rights of any Holder for payment of any amounts under or in respect of the Notes
(including, without limitation, any amounts arising as a result of, or due and payable
upon the occurrence of, an Event of Default) will become null and void, irrespective of
whether such amounts have become due and payable prior to the date of the relevant
Trigger Event Notice or Viability Event Notice, as the case may be, or the Write -down
Date.
9.
CONVERSION
(a)
Conversion upon a Trigger Event or a Viability Event
If the Issuer has given a Trigger Event Conversion Notice or a Viability Event Conversion
Notice in accordance with Condition 7 (
Trigger Event and Viability Event
), then:
(i)
each Note shall, subject to and as provided in this Condition 9, be redeemed and
settled (the "
Conversion
") on the applicable Conversion Date by (x) the delivery
of new fully paid Ordinary Shares to the Settlement Share Depository on behalf
of the Holders, and (y) the cancellation of any accrued and unpaid interest on the
Notes (whether or not due and payable); and
(ii)
receipt by the Settlement Share Depository of such number of Ordinary Shares as
is required to satisfy in full its obligation to deliver Ordinary Shares in respect of
the Conversion on the applicable Conversion Date shall be a good and complete
discharge of the Issuer's (and, if UBS Group AG is not the Issuer, UBS Group
AG's) obligations in respect of the Notes.
In the case of the Ordinary Shares to be delivered upon Conversion, as from the applicable
Share Creation Date for such Ordinary Shares, there is no provision for the reconversion
of such Ordinary Shares into Notes.
(b)
Recourse for Ordinary Shares
Holders shall have recourse only to the Issuer for the issue and delivery of Ordinary Shares
to the Settlement Share Depository pursuant to these Terms and Conditions. After such
delivery to the Settlement Share Depository, Holders shall have recourse only to the
Settlement Share Depository for the delivery to them of such Ordinary Shares or, in the
circumstances described in clause (h) of this Condition 9, any cash amounts to which such
Holders are entitled under clause (h) of this Condition 9.
(c)
Conversion Price and determination of number of Ordinary Shares
(i)
Upon the occurrence of a Conversion Event, as at the date on which the relevant
Trigger Event Conversion Notice or Viability Event Conversion Notice is
published, each Holder shall be deemed to have accepted, and hereby accepts and
agrees, (A) to the conversion of its holding of Notes into Ordinary Shares at the
Conversion Price provided for herein and that, where necessary under Swiss law,
the Settlement Agent shall effect such conversion on such Holder's behalf, and
(B) that its obligation to pay up the Ordinary Shares to be issued shall be set off
against its claim for repayment of the principal amount upon redemption of the
Notes, which claim shall be deemed to be due and payable immediately prior to
the time on the Share Creation Date when, as a matter of Swiss law, the relevant
Ordinary Shares are paid up. Such Ordinary Shares shall be paid up and issued on
the Share Creation Date whereupon the Holders shall cease as a matter of Swiss
law to be treated for all purposes under Swiss law as Holders and shall instead as
of such date be treated for all purposes under Swiss law as Shareholders.
10272790607-v17
96
70-41061831
(ii)
Subject to clause (g) of this Condition 9, the Issuer, with the assistance of the
Settlement Agent, where necessary under Swiss law, shall issue and deliver to the
Settlement Share Depository on the applicable Conversion Date such number of
Ordinary Shares in respect of each Holder as is determined by the Settlement
Agent by dividing the aggregate principal amount of Notes held by such Holder
on the applicable Conversion Date by the Conversion Price in effect on the date
of relevant Trigger Event Conversion Notice or Viability Event Conversion
Notice, as the case may be. The Settlement Agent shall determine such number
of Ordinary Shares in accordance with this subclause (ii) as soon as practicable
after publication of the relevant Trigger Event Conversion Notice or Viability
Event Conversion Notice, as applicable.
(iii)
The initial Conversion Price per Ordinary Share in respect of the Notes is
specified in the definition thereof. The Conversion Price is subject to adjustment
to (and including) the date of the relevant Trigger Event Conversion Notice or
Viability Event Conversion Notice, as the case may be, in the circumstances
described in clause (d) below.
(d)
Anti-dilution adjustment of the Conversion Price
(i)
Upon the occurrence of any of the events described below after 8 November 2023,
the Conversion Price will be adjusted by the Issuer as follows:
(A)
If there is a consolidation, reclassification, redesignation or subdivision
in relation to the Ordinary Shares that alters the number of Ordinary
Shares in issue, the Conversion Price will be adjusted by multiplying the
Conversion Price in force immediately prior to such consolidation,
reclassification, redesignation or subdivision by the following fraction:
where:
A
is the aggregate number of Ordinary Shares in issue
immediately before such consolidation, reclassification,
redesignation 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, redesignation or subdivision, as the case may
be.
Such adjustment will become effective on the date on which the
consolidation, reclassification, redesignation or subdivision, as the case
may be, takes effect.
(B)
If UBS Group AG issues any Ordinary Shares to Shareholders as a class
credited as fully paid by way of capitalisation of profits or reserves
(including any share premium account or capital redemption reserve)
other than (x) where any such Ordinary Shares are or are to be issued
instead of the whole or part of a Cash Distribution that the Shareholders
would or could otherwise have elected to receive, (y) where the
Shareholders may elect to receive a Cash Distribution in lieu of such
Ordinary Shares or (z) where any such Ordinary Shares are or are
expressed to be issued in lieu of a dividend (whether or not a Cash
Distribution equivalent or amount is announced or would otherwise be
payable to the Shareholders, whether at their election or otherwise), the
Conversion Price will be adjusted by multiplying the Conversion Price
in force immediately prior to such issue by the following fraction:
10272790607-v17
97
70-41061831
where:
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.
Such adjustment shall become effective on the date of issue of such
Ordinary Shares.
(C)
If UBS Group AG makes or pays an Extraordinary Distribution to
Shareholders, the Conversion Price will be adjusted by multiplying the
Conversion Price in force immediately prior to the Effective Date by the
following fraction:
where:
A
is the Current Market Price of one Ordinary Share on the
Effective Date (translated, if necessary, into the Relevant
Currency at the Prevailing Rate on the Effective Date); and
B
is the portion of the aggregate Extraordinary Distribution
attributable to one Ordinary Share, with such portion being
determined by dividing the aggregate Extraordinary
Distribution by the number of Ordinary Shares entitled to
receive the relevant Extraordinary Distribution. If the
Extraordinary Distribution shall be expressed in a currency
other than the Relevant Currency, it shall be converted into the
Relevant Currency at the Prevailing Rate on the relevant
Effective Date.
Such adjustment shall become effective on the Effective Date.
For purposes of this subclause (C), "
Effective Date
" means (x) the first
date on which the Ordinary Shares are traded ex-the Extraordinary
Distribution on the Relevant Stock Exchange or (y) if there is no
Relevant Stock Exchange, the first date upon which the adjusted
Conversion Price is capable of being determined in accordance with this
subclause (C).
(D)
If UBS Group AG issues Ordinary Shares to Shareholders as a class by
way of rights or UBS Group AG or any other member of the Group or
(at the direction or request or pursuant to arrangements with UBS Group
AG or any other member of the Group) any other Person issues or grants
to Shareholders as a class by way of rights, any options, warrants or other
rights to subscribe for or purchase Ordinary Shares, or any Securities that
by their terms of issue carry (directly or indirectly) rights of conversion
into, or exchange or subscription for, any Ordinary Shares (or shall grant
any such rights in respect of existing Securities so issued), in each case
at a price per Ordinary Share that is less than 95 per cent. of the Current
Market Price per Ordinary Share on the Effective Date (translated, if
necessary, into the Relevant Currency at the Prevailing Rate on the
Effective Date), the Conversion Price will be adjusted by multiplying the
Conversion Price in force immediately prior to the Effective Date by the
following fraction:
10272790607-v17
98
70-41061831
where:
A
is the number of Ordinary Shares in issue on the Effective Date;
B
is the number of Ordinary Shares that the aggregate
consideration (if any) receivable for the Ordinary Shares issued
by way of rights, or for the Securities issued by way of rights,
or for the options or warrants or other rights issued by way of
rights and for the total number of Ordinary Shares deliverable
on the exercise thereof, would purchase at such Current Market
Price per Ordinary Share on the Effective Date (translated, if
necessary, into the Relevant Currency at the Prevailing Rate on
the Effective Date); and
C
is the number of Ordinary Shares to be issued or the maximum
number of Ordinary Shares that may be issued upon exercise of
such options, warrants or rights calculated as at the date of issue
of such options, warrants or rights or upon conversion or
exchange or exercise of rights of subscription or purchase in
respect thereof at the initial conversion, exchange, subscription
or purchase price or rate, as the case may be,
provided
that, if on the Effective Date, such number of Ordinary Shares
is to be determined by reference to the application of a formula or other
variable feature or the occurrence of any event at some subsequent time,
then for the purposes of this subclause (D), "C" will be determined by the
application of such formula or variable feature or as if the relevant event
occurs or had occurred as at the Effective Date and as if such conversion,
exchange, subscription, purchase or acquisition had taken place on the
Effective Date.
Such adjustment shall become effective on the Effective Date.
For purposes of this subclause (D), "
Effective Date
" means (x) the first
date on which the Ordinary Shares are traded ex-rights, ex-options or ex-
warrants on the Relevant Stock Exchange or (y) if there is no Relevant
Stock Exchange, the first date upon which the adjusted Conversion Price
is capable of being determined in accordance with this subclause (D).
For purposes of any calculation of the consideration receivable or price
pursuant to this subclause (D), the following provisions shall apply:
(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 will 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 will 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 that are attributed by UBS Group AG 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,
10272790607-v17
99
70-41061831
the Fair Market Value of such rights of subscription or, as the
case may be, such options, warrants or rights as at the relevant
Effective Date, plus in the case of each of subclauses (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 will be the aggregate consideration or
price referred to in subclause (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
subclause (1) or (2) above (or any component thereof) is
expressed in a currency other than the Relevant Currency, it shall
be converted into the Relevant Currency at the Prevailing Rate
on the relevant Effective Date (in the case of subclause (1)
above) or the relevant date of first public announcement (in the
case of subclause (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 UBS Group AG or
another entity.
(E)
If UBS Group AG determines, in its sole discretion, that, notwithstanding
subclauses (A) to (D) of this Condition 9(d)(i), a reduction to the
Conversion Price should be made as a result of one or more events or
circumstances not referred to in this Condition 9(d)(i) that would require
an adjustment to the Conversion Price in order to comply with Swiss
mandatory law on the protection of holders of instruments that may
convert into shares issued out of capital range (
Kapitalband
), conditional
capital (
bedingtes Kapital
) or Conversion Capital, the Conversion Price
will be reduced (either generally or for a specified period) in such manner
and with effect from such date as UBS Group AG shall determine and
the Issuer shall notify to the Holders in accordance with Condition 15
(
Notices
).
(ii)
Notwithstanding Condition 9(d)(i):
(A)
where
(1)
the events or circumstances giving rise to any adjustment to the
Conversion Price have resulted or will result in an adjustment to
the Conversion Price; or
(2)
more than one event that gives rise to an adjustment to the
Conversion Price occurs within such a short period of time,
10272790607-v17
100
70-41061831
that, in the opinion of UBS Group AG, a modification to the
operation of the adjustment provisions set forth in this Condition
9(d) is required to give the intended result, such modification
will be made to the operation of the adjustment provisions set
forth in this Condition 9(d) as may be determined by an
Independent Adviser to be in its opinion appropriate to give the
intended result, including to ensure that (x) an adjustment to the
Conversion Price or the economic effect thereof shall not be
taken into account more than once, (y) the economic effect of an
Extraordinary Distribution is not taken into account more than
once, and (z) to reflect a redenomination of the issued Ordinary
Shares for the time being into a new currency;
(B)
any adjustment to the Conversion Price will be subject to such
Conversion Price not being less than the par value of an Ordinary Share
at such time (currently USD 0.10);
(C)
UBS Group AG shall not take any action, and shall procure that no action
is taken, that would otherwise result in an adjustment to the Conversion
Price to below the par value of an Ordinary Share then in effect;
(D)
if any doubt arises as to whether an adjustment is to be made to the
Conversion Price or as to the appropriate adjustment to the Conversion
Price, UBS Group AG may in its sole discretion appoint an Independent
Adviser and, following consultation between UBS Group AG and such
Independent Adviser, a written opinion of such Independent Adviser in
respect thereof will (in the absence of wilful default, bad faith and
manifest error) be conclusive and binding on UBS Group AG and the
Holders;
(E)
no adjustment will be made to the Conversion Price where Ordinary
Shares or other securities (including rights, warrants and options) are
issued, offered, exercised, allotted, purchased, appropriated, modified or
granted to, or for the benefit of, employees or former employees
(including directors holding or formerly holding executive office or the
personal service company of any such person) or their spouses or
relatives, in each case, of UBS Group AG or any of its subsidiaries or
any associated company or to a trustee or trustees to be held for the
benefit of any such person, in any such case pursuant to any share or
option scheme; and
(F)
on any adjustment, if the resultant Conversion Price has more decimal
places than the initial Conversion Price, it will be rounded to the same
number of decimal places as the initial Conversion Price. No adjustment
will be made to the Conversion Price where such adjustment (rounded
down if applicable) would be less than one per cent. of the Conversion
Price then in effect. Any adjustment not required to be made, and/or any
amount by which the Conversion Price has been rounded down, will be
carried forward and taken into account in any subsequent adjustment, and
such subsequent adjustment will be made on the basis that the adjustment
not required to be made had been made at the relevant time and/or that
the relevant rounding down had not been made, as the case may be.
(iii)
The Issuer shall give notice of any adjustments to the Conversion Price made
pursuant to this Condition 9(d) to the Holders in accordance with Condition 15
(
Notices
) promptly after the determination thereof.
(iv)
References in these Terms and Conditions to any issue or offer or grant to
Shareholders "as a class" or "by way of rights" shall be taken to be references to
an issue or offer or grant to all or substantially all Shareholders, other than
Shareholders to whom, by reason of the laws of any territory or requirements of
any recognised regulatory body or any other stock exchange or securities market
10272790607-v17
101
70-41061831
in any territory or in connection with fractional entitlements, it is determined not
to make such issue or offer or grant.
(e)
Qualifying Relevant Event
(i)
Upon the occurrence of a Relevant Event that is a Qualifying Relevant Event,
then:
(A)
upon the occurrence of a Conversion Event where the applicable
Conversion Date falls on or after the New Conversion Condition
Effective Date,
(1)
the Notes shall be converted on such Conversion Date into, or
be exchanged on such Conversion Date for, as the case may be,
Relevant Shares of the Approved Entity,
mutatis mutandis
as
provided in accordance with this Condition 9, at a Conversion
Price that shall be the New Conversion Price; and
(2)
the Issuer shall procure the issue and/or delivery of the relevant
number of Relevant Shares of the Approved Entity in the manner
provided in this Condition 9 (as may be amended as described
in the definition of the term New Conversion Condition); and
(B)
the New Conversion Price shall be subject to adjustment in the
circumstances provided in this Condition 9 for the adjustment of the
Conversion Price (if necessary with such amendments as an Independent
Adviser shall determine to be appropriate) and the Issuer shall give notice
in accordance with Condition 15 (
Notices
) to the Holders of the New
Conversion Price and of any such amendments thereafter.
(ii)
Upon the occurrence of a Relevant Event, the Issuer shall give notice thereof to
the Holders in accordance with Condition 15 (
Notices
) within 10 Business Days
following the occurrence of such Relevant Event, which notice shall:
(A)
specify the identity of the Acquiror;
(B)
specify whether the Relevant Event is a Qualifying Relevant Event or a
Non-Qualifying Relevant Event;
(C)
in the case of a Qualifying Relevant Event, specify the New Conversion
Price; and
(D)
if applicable, specify the New Conversion Condition Effective Date.
(iii)
For the avoidance of doubt, upon the occurrence of a Relevant Event that is a
Non-Qualifying Relevant Event, the provisions of this clause (e) shall (subject to
the subsequent operation of this clause (e) upon the occurrence of a subsequent
Relevant Event) not apply, and the Notes will continue to be convertible into
Ordinary Shares pursuant to and in accordance with the other provisions of this
Condition 9 (
Conversion
), if and when the Issuer gives a Trigger Event
Conversion Notice or a Viability Event Conversion Notice in accordance with
Condition 7 (
Trigger Event and Viability Event
).
(iv)
For purposes of these Terms and Conditions:
"
Acquiror
" means the Person (including a Governmental Entity) that, following
a Relevant Event, controls UBS Group AG.
"
Approved Entity"
means an Acquiror that is body corporate that is
incorporated or established under the laws of an OECD member state and that,
on the occurrence of the Relevant Event, has in issue Relevant Shares.
10272790607-v17
102
70-41061831
"
Governmental Entity
" means (x) the Swiss Confederation, (y) an agency of the
Swiss Confederation or (z) a person or entity (other than a body corporate)
controlled by the Swiss Confederation or any such agency referred to in clause (y);
provided
,
however
, that, if UBS Group AG is at any time organised in a
jurisdiction outside of Switzerland, references in this definition to "the Swiss
Confederation" shall be read as references to the government of such other
jurisdiction.
The "
New Conversion Condition
" shall be satisfied in respect of a Relevant
Event if, by no later than seven days following the occurrence of such Relevant
Event, (x) UBS Group AG has, to the satisfaction of UBS Group AG, entered into
arrangements with the Approved Entity that provide for delivery of Relevant
Shares of the Approved Entity on Conversion on terms
mutatis mutandis
as
provided in the provisions of this Condition 9, and (y) the Issuer has entered into
such agreements and arrangements, and made such amendments to these Terms
and Conditions, as may be required to ensure that, with effect from the New
Conversion Condition Effective Date, the Notes shall, following the occurrence of
a Conversion Event, be convertible into, or exchangeable for, Relevant Shares of
the Approved Entity,
mutatis mutandis
in accordance with, and subject to, this
Condition 9 (as may be so amended) at the New Conversion Price;
provided
,
however
, that, any failure to enter into the arrangements and agreements and/or
make the amendments described in clauses (x) and (y) shall not constitute a
default or an Event of Default under these Terms and Conditions.
"
New Conversion Condition Effective Date
" means the date with effect from
which the New Conversion Condition has been satisfied.
"
New Conversion Price
" means, in respect of any Conversion Date falling on or
after the New Conversion Condition Effective Date, the amount determined by the
Issuer in accordance with the following formula:
where:
NCP is the New Conversion Price.
ECP is the Conversion Price in effect on the last dealing day prior
to the New Conversion Condition Effective Date.
VWAPRS is the average of the Volume Weighted Average Price of the
Relevant Shares of the Approved Entity (translated, if
necessary, into the Relevant Currency at the Prevailing Rate
on the relevant dealing day) on each of the five dealing days
ending on the last dealing day prior to the date on which the
Relevant Event occurred (and where references in the
definition of "Volume Weighted Average Price" to
"Ordinary Shares" shall be construed as a reference to the
Relevant Shares of the Approved Entity and in the definition
of "dealing day", references to the "Relevant Stock
Exchange" shall be to the primary Recognised Stock
Exchange on which the Relevant Shares of the Approved
Entity are then listed, admitted to trading or accepted for
dealing).
VWAPOS is the average of the Volume Weighted Average Price of the
Ordinary Shares (translated, if necessary, into the Relevant
Currency at the Prevailing Rate on the relevant dealing day)
on each of the five dealing days ending on
10272790607-v17
103
70-41061831
the last dealing day prior to the date on which the Relevant
Event occurred.
"
Non-Qualifying Relevant Event
" means a Relevant Event that is not a
Qualifying Relevant Event.
"
Qualifying Relevant Event
" means a Relevant Event where:
(A)
the Acquiror is an Approved Entity; and
(B)
the New Conversion Condition is satisfied.
A "
Relevant Event
" will have occurred if, on or after the occurrence of a
Conversion Capital Availability Event, any Person or Persons acting in concert
acquires control of UBS Group AG (other than as a result of an Exempt
Reorganisation). For the purposes of this definition "Relevant Event", "
control
"
means the acquisition or holding of legal or beneficial ownership of more than 95
per cent. of the issued Ordinary Shares of UBS Group AG (whether obtained
directly or indirectly and whether obtained by ownership of share capital, contract
or otherwise) and, as a consequence thereof, the Ordinary Shares are no longer
admitted to trading on any Recognised Stock Exchange, and "
controlled
" shall be
construed accordingly.
"
Relevant Shares
" means, in respect of an Acquiror, ordinary share capital of
such Acquiror that constitutes equity share capital or the equivalent (or depositary
or other receipts representing the same) that is listed and admitted to trading on a
Recognised Stock Exchange.
(f)
Procedure for settlement and delivery of Ordinary Shares on Conversion
Ordinary Shares to be issued on Conversion shall be delivered subject to and as provided
below.
(g)
Fractions
Fractions of Ordinary Shares will not be issued or delivered pursuant to these Terms and
Conditions on Conversion and no cash payment will be made in lieu thereof. The number
of Ordinary Shares to be issued and delivered to the Settlement Share Depository for the
benefit of each Holder in respect of a Conversion shall be calculated by the Settlement
Agent on the basis of the aggregate principal amount of Notes held by such Holder on the
applicable Conversion Date and rounded down, if necessary, to the nearest whole number
of Ordinary Shares.
(h)
Procedure for delivery in respect of a Conversion
(i)
UBS Group AG, with the assistance of the Settlement Agent where necessary
under Swiss law, shall on or prior to the applicable Conversion Date issue and
deliver to the Settlement Share Depository such number of Ordinary Shares as is
required to satisfy in full its obligation to deliver Ordinary Shares to the Holders
in respect of the Conversion on the applicable Conversion Date. Receipt by the
Settlement Share Depository of such Ordinary Shares shall be a good and
complete discharge of the Issuer's (and, if UBS Group AG is not the Issuer, UBS
Group AG's) obligations in respect of the Notes. If the Issuer is unable to appoint
a Settlement Share Depository on or prior to the giving of the Trigger Event
Conversion Notice or Viability Event Conversion Notice, as the case may be, it
shall make such other arrangements for the issuance and delivery of the Ordinary
Shares to be issued and delivered upon Conversion to the Holders as it considers,
in its sole discretion, to be reasonable in the circumstances, which may include
issuing and delivering such Ordinary Shares to another independent nominee to
be held on trust for the Holders or issuing and delivering such Ordinary Shares to
the Holders directly, which issuance and delivery shall irrevocably discharge and
satisfy all of the Issuer's obligations under the Notes as if the relevant Ordinary
10272790607-v17
104
70-41061831
Shares had been issued and delivered to the Settlement Share Depository and, in
which case, where the context so admits, references in these Terms and
Conditions to the issue and delivery of Ordinary Shares to the Settlement Share
Depository shall be construed accordingly and apply
mutatis mutandis
.
(ii)
Subject to the making of a Settlement Shares Offer and as otherwise provided
herein, the Settlement Agent shall give instructions to the Settlement Share
Depository for the relevant Ordinary Shares to be delivered by the Settlement
Share Depository on the applicable Settlement Date to the Holders, and the
Settlement Share Depository shall procure that the Ordinary Shares are so
delivered to the Holders on the applicable Settlement Date.
(iii)
In respect of a Conversion as a result of the occurrence of a Trigger Event only,
following receipt by the Settlement Share Depository of the Ordinary Shares and
the resulting good and complete discharge of the Issuer's obligations in respect of
the Notes as described in subclause (i) above, the Issuer may, in its sole 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 Trigger Event Conversion Notice, the Issuer shall notify
the Holders 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, it will instruct the Settlement Share 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 (x) at a net price per Ordinary Share, which, translated into
the Relevant Currency at the Prevailing Rate at the date of the Trigger Event
Conversion Notice, is equal to the Conversion Price in effect on the date of the
Trigger Event Conversion Notice, and (y) to some or, subject to applicable laws
and regulations and to such an offer being practicable in the opinion of the Issuer
in the Offer Settlement Period, all Shareholders on the record date of the Trigger
Event Conversion 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 Trigger Event (the "
Offer Settlement Period
"). Neither the
Issuer nor the Settlement Share 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.
If the Settlement Shares Offer is fully subscribed by or before the end of the Offer
Settlement Period, Holders shall, pursuant to the agreement appointing the
Settlement Shares Offer Agent, be entitled to receive from the Settlement Shares
Offer Agent on the fifth Business Day after the end of the Offer Settlement Period,
in respect of each Ordinary Share to which they were otherwise entitled, cash
proceeds received from the Settlement Shares Offer in an amount equal to the
Conversion Price in effect on the date of the Trigger Event Conversion Notice
(translated, if necessary, into the Relevant Currency at the Prevailing Rate at the
date of the Trigger Event Conversion Notice). If the Settlement Shares Offer is
only partially subscribed by the end of the Offer Settlement Period, Holders shall
in aggregate be entitled to receive on a
pro rata
basis (x) cash proceeds received
from such Settlement Shares Offer in an amount equal to the Conversion Price in
effect on the date of the Trigger Event Conversion Notice (translated, if necessary,
into the Relevant Currency at the Prevailing Rate at the date of the Trigger Event
Conversion Notice) multiplied by the aggregate number of Ordinary Shares sold
on the fifth Business Day after the end of the Offer Settlement Period from the
Settlement Shares Offer Agent, pursuant to the agreement appointing the
Settlement Shares Offer Agent, and rounding the resulting figure to the nearest
sub-unit of the Relevant Currency (one half of any such sub-unit being rounded
upwards), together with (y) the number of Ordinary Shares not subscribed
pursuant to the Settlement Shares Offer within the period specified below from the
Settlement Share Depository. If no Ordinary Shares are subscribed in the
Settlement Shares Offer, Holders shall be entitled to receive the relevant Ordinary
10272790607-v17
105
70-41061831
Shares within the period specified below from the Settlement Share Depository.
Notwithstanding Condition 10 (
Payments; Agents
), any cash proceeds that the
Holders are entitled to receive pursuant to this subclause (iii) shall be delivered to
the Holders in accordance with clause (j) of this Condition 9.
In relation to any Ordinary Shares not sold pursuant to a Settlement Shares Offer,
the Settlement Agent shall give instructions to the Settlement Shares Offer Agent
for such Ordinary Shares to be delivered by the Settlement Shares Offer Agent to
the relevant Holders within five Business Days after the end of the Offer
Settlement Period.
(i)
Taxes and duties
None of the Issuer, any other member of the Group, any Agent, the Settlement Share
Depository and the US Transfer Agent will pay any capital, stamp, issue, registration,
transfer or other taxes or duties arising upon Conversion or that may arise or be paid as a
consequence of or in connection with the issue and delivery of Ordinary Shares to the
Settlement Share Depository or the delivery of any Ordinary Shares to the relevant
recipient in accordance with the instructions given in the relevant Settlement Shares
Settlement Notice. A Holder must pay any capital, stamp, issue, registration, transfer or
other taxes or duties arising upon Conversion or that may arise or be paid as a consequence
of or in connection with the issue and delivery of the Ordinary Shares to the Settlement
Share Depository or the delivery of the Ordinary Shares to the relevant recipient in
accordance with the instructions given in the relevant Settlement Shares Settlement
Notice, and such Holder must pay all, if any, such taxes and duties arising by reference to
any disposal or deemed disposal of such Holder's Notes or interest therein. Any capital,
stamp, issue, registration, transfer or other taxes or duties arising on delivery or transfer
of Ordinary Shares to a purchaser in any Settlement Shares Offer shall be payable by the
relevant purchaser of those Ordinary Shares.
(j)
Delivery of Ordinary Shares and cash proceeds received from a Settlement Shares Offer
UBS Group AG, with the assistance of the Settlement Agent where necessary under Swiss
law, will issue and deliver the Ordinary Shares required to be issued and delivered on
Conversion to the Settlement Share Depository on behalf of the Holder of the relevant
Note(s). The Issuer (or another party so authorised by the Issuer) shall instruct the US
Transfer Agent to credit such Ordinary Shares to a nominee account in the name of the
Settlement Share Depository to be held on behalf of the Holders on the applicable
Conversion Date. Receipt by the Settlement Share Depository of such Ordinary Shares on
the applicable Conversion Date shall be a good and complete discharge of the Issuer's
obligations in respect of the Notes as described in subclause (h)(i) of this Condition 9.
In order to obtain delivery from the Settlement Share Depository of the Ordinary Shares
and/or cash proceeds received from a Settlement Shares Offer, in each case to which it is
entitled pursuant to this Condition 9, a Holder will be required to deliver to the Settlement
Share Depository (or any of its agent designated for such purpose in the Trigger Event
Conversion Notice or Viability Event Conversion Notice, as applicable) an executed
settlement shares settlement notice substantially in the form that may be obtained from the
Specified Office of the Settlement Agent (a "
Settlement Shares Settlement Notice
") and
the relevant Certificate representing the relevant Note to the Settlement Share Depository
(or any of its agents designated for such purpose in the Trigger Event Conversion Notice
or Viability Event Conversion Notice) on or before the Settlement Notice Cut-off Date. If
such Settlement Shares Settlement Notice or Certificate is delivered after the end of
normal business hours at the Specified Office of the Settlement Share Depository, such
delivery shall be deemed for all purposes to have been made or given on the following
New York Business Day. The Settlement Shares Settlement Notice must contain certain
information, including the name of the relevant recipient in which the relevant Ordinary
Shares are to be registered directly on the books of the US Transfer, and Settlement Shares
Settlement Notices and Certificates must be delivered to the Settlement Share Depository
(or any of its agents designated for such purpose in the Trigger Event Conversion Notice
or Viability Event Conversion Notice, as applicable) in accordance with the procedures
10272790607-v17
106
70-41061831
described in the relevant Trigger Event Conversion Notice or Viability Event Conversion
Notice, as applicable;
provided
,
however
, that, if the Notes are represented by one or more
Global Certificates deposited with, or with a custodian for, the Depositary, then the
Settlement Shares Settlement Notice must be given in accordance with the standard
procedures of the Depositary (which may include, without limitation, delivery of the
notice to the Settlement Share Depository by electronic means) and in a form acceptable
to the Depositary, the Settlement Agent and the Settlement Share Depository. Subject as
otherwise provided herein, the relevant Ordinary Shares and/or cash proceeds of a
Settlement Shares Offer will be delivered by or on behalf of the Settlement Share
Depository or the Settlement Shares Offer Agent, as applicable, in accordance with the
instructions given in the relevant Settlement Shares Settlement Notice;
provided
,
however
,
that, if the Notes are represented by one or more Global Certificates deposited with, or
with a custodian for, the Depositary, then delivery of any such cash proceeds shall be made
by the Settlement Shares Offer Agent in accordance with the Depositary's practices from
time to time.
If a Holder delivers a valid Settlement Shares Settlement Notice and the relevant
Certificate on or before the Settlement Notice Cut-off Date, then the Ordinary Shares will
be delivered in respect of the relevant Note(s) by way of registering the Ordinary Shares in
the name of the relevant recipient directly on the books of the US Transfer Agent on the
applicable Settlement Date or such other date as is specified for delivery. Once Ordinary
Shares are registered in the name of the relevant recipient directly on the books of the US
Transfer Agent, such relevant recipient, as Shareholder, is expected to receive periodic
account statements from the US Transfer Agent with respect to its Ordinary Shares. At the
time of delivery of any Ordinary Shares to the relevant recipient by registration of such
Ordinary Shares directly on the books of the US Transfer Agent, the then-valid share
registration rules of UBS Group AG will apply, and UBS Group AG does not offer any
assurance or guarantee that such relevant recipient will be accepted as a Shareholder with
voting rights in the share register of UBS Group AG.
If a Holder fails to deliver a Settlement Shares Settlement Notice or the relevant Certificate
on or before the Settlement Notice Cut-off Date or if a Holder has delivered a Settlement
Shares Settlement Notice and the relevant Certificate on or prior the Settlement Notice
Cut-off Date but such Settlement Shares Settlement Notice has been determined by the
Settlement Share Depository to be null and void, then the Settlement Share Depository
shall continue to hold the relevant Ordinary Shares and/or, as applicable, cash proceeds
received from a Settlement Shares Offer, in each case to which such Holder is entitled
pursuant to this Condition 9, until a valid Settlement Shares Settlement Notice (and the
Certificate representing the relevant Notes) is so delivered by such Holder. If any such
Ordinary Shares or such cash proceeds received from a Settlement Shares Offer (as
applicable) have not been claimed during the 10-year and 30-day period commencing on
the Final Cancellation Date, the relevant claims of the applicable Holders are time-barred
and the relevant Ordinary Shares and cash, as the case may be, will be transferred to the
Issuer. None of the Issuer, the Settlement Share Depository and the Settlement Shares
Offer Agent shall have any liability to any Holder for any loss resulting from such Holder
not receiving any such Ordinary Shares and/or cash proceeds.
If not previously cancelled on the applicable Settlement Date, the relevant Notes shall be
cancelled on the Final Cancellation Date and any Holder delivering a Settlement Shares
Settlement Notice after the Settlement Notice Cut-off Date will have to provide evidence
of its entitlement to the relevant Ordinary Shares and/or cash proceeds from a Settlement
Shares Offer, as applicable, satisfactory to the Settlement Share Depository in its sole
discretion in order to receive delivery of such Ordinary Shares or such cash proceeds, as
applicable. None of the Issuer, the Settlement Share Depository and the Settlement Shares
Offer Agent shall have any liability to any Holder for any loss resulting from such Holder
not receiving any Ordinary Shares or cash proceeds from a Settlement Shares Offer, as
applicable, or from any delay in the receipt thereof, in each case as a result of such Holder
failing to submit a valid Settlement Shares Settlement Notice and any relevant Certificate
(if applicable), on a timely basis or at all.
10272790607-v17
107
70-41061831
Any determination as to whether any Settlement Shares Settlement Notice has been
properly completed and delivered together with the relevant Certificate(s) as provided in
these Terms and Conditions, or whether any evidence of entitlement to Ordinary Shares or
cash proceeds received from a Settlement Shares Offer, as applicable, is satisfactory, shall
be made by the Settlement Share Depository in its sole discretion and shall be conclusive
and binding on the relevant Holders. In the case of Notes represented by a Global
Certificate, any Settlement Shares Settlement Notice delivered prior to the day following
the Suspension Date will be null and void.
(k)
Ordinary Shares
The Ordinary Shares issued and delivered on Conversion will be fully paid and non-
assessable and will in all respects rank
pari passu
with the fully paid Ordinary Shares in
issue on the relevant Share Creation Date, except in any such case for any right excluded
by mandatory provisions of applicable law, and except that the Ordinary Shares so issued
and delivered will not rank for (or, as the case may be, the relevant Holder will not be
entitled to receive) any rights, distributions or payments the record date or other due date
for the establishment of entitlement for which falls prior to the relevant Share Creation
Date.
All Ordinary Shares issued and delivered to Holders upon Conversion are expected to be
"restricted securities" within the meaning of Rule 144 under the US Securities Act, and
accordingly, any Holder who receives Ordinary Shares upon Conversion will be subject
to restrictions under the US Securities Act on its ability to resell such Ordinary Shares.
Subject to applicable law and the policies and procedures of the US Transfer Agent from
time to time, through the US Transfer Agent, Holders who receive Ordinary Shares upon
Conversion are expected to be able to effect transfers of such Ordinary Shares with other
Shareholders holding their Ordinary Shares through the US Transfer Agent, or with
Shareholders holding their Ordinary Shares via DTC through custodian banks or brokers
by means of DTC's Direct Registration System.
(l)
Purchase or redemption of Ordinary Shares
UBS Group AG or any of its subsidiaries may exercise such rights as it may from time to
time enjoy to purchase or redeem or buy back any shares or securities of UBS Group AG
(including Ordinary Shares) or any depositary or other receipts or certificates representing
the same without the consent of Holders.
(m)
Determinations to be made by an Independent Adviser
In the case of any determination that is required to be made by an Independent Adviser
under these Terms and Conditions, the Issuer shall use reasonable endeavours to appoint
an Independent Adviser to make such determination;
provided
,
however
, that,
notwithstanding the other provisions of these Terms and Conditions, if the Issuer is unable
to so appoint an Independent Adviser or the Independent Adviser so appointed by the
Issuer fails to make such determination, the Issuer, acting in good faith and a commercially
reasonable manner, will make such determination.
Any determination that is made by an Independent Adviser under these Terms and
Conditions will be made in the sole discretion of such Independent Adviser acting in good
faith and in a commercially reasonable manner.
(n)
Notifications, etc. to be final
All notifications, opinions, determinations, certificates, calculations, quotations and
decisions given, expressed, made or obtained by an Independent Adviser or the Settlement
Agent for purposes of this Condition 9 will (in the absence of wilful default, bad faith and
manifest error) be binding on the Issuer, the Agents and the Holders and (in the absence
of wilful default and bad faith) no liability to the Issuer or the Holders will attach to the
Independent Adviser or the Settlement Agent in connection with the exercise or non-
10272790607-v17
108
70-41061831
exercise by the Independent Adviser or the Settlement Agent of its powers, duties and
discretions under this Condition 9.
10.
PAYMENTS; AGENTS
(a)
All payments required to be made under the Notes will be made available in good time
in freely disposable funds in USD, which will be placed at the free disposal of the Fiscal
Agent on behalf of the Holders. If the Scheduled Due Date for any payment (whether in
respect of principal, interest or otherwise) in respect of the Notes is not a Payment
Business Day, then the Holders will not be entitled to payment thereof until the first
Payment Business Day following the Scheduled Due Date, and the Holders will not be
entitled to any additional sum in relation to such payment. All payments required to be
made under the Notes (including, for the avoidance of doubt, any Additional Amounts)
shall be made to the Holders in USD without collection costs, without any restrictions
and whatever the circumstances may be, irrespective of nationality, domicile or
residence of the relevant Holder and without certification, affidavit or the fulfilment of
any other formality;
provided
,
however
, that, in the case of Notes represented by
Definitive Certificates, such Definitive Certificates must be presented and, in the case of
redemption, surrendered at the Specified Office of the relevant Paying Agent as a
condition to receipt of any such payment.
(b)
The receipt by the Fiscal Agent of the due and punctual payment of funds in USD will
release the Issuer from its obligations under the Notes to the extent of such payment.
Subject to clause (d) of this Condition 10:
(i)
the Issuer reserves the right to terminate the appointment of any Agent, as well as
to appoint or, after any such appointment, to terminate the appointment of, one or
more other paying agents to carry out any payment, calculation or other functions
in respect of the Notes (each, a "
Paying Agent
"),
provided
that (A) so long as any
Note is outstanding, there will at all times be a Fiscal Agent, a Registrar, a
Calculation Agent and a Settlement Agent, (B) for so long as the Notes are listed
on the SIX Swiss Exchange and if then required by the regulations of the SIX
Swiss Exchange, the Issuer shall maintain a Paying Agent in Switzerland, which
agent shall have an office in Switzerland and be a bank or securities dealer subject
to supervision by FINMA, to perform the functions of a Swiss paying agent (the
"
Swiss Paying Agent
"), and (C) any successor Calculation Agent must be a
leading bank or financial institution that is experienced in the calculations and
determinations to be made by the Calculation Agent; and
(ii)
if at any time the Fiscal Agent, the Registrar, the Calculation Agent, or the Swiss
Paying Agent, (A) becomes incapable of acting, or (B) is adjudged bankrupt or
insolvent, or files a voluntary petition in bankruptcy, or makes an assignment for
the benefit of its creditors, or consents to the appointment of a receiver of all or
any substantial part of its property, or admits in writing its inability to pay or meet
its debts as they mature, or if an order of any court is entered approving any
petition filed by or against it under the provisions of any applicable bankruptcy
or insolvency law, or if a receiver of it or of all or any substantial part of its
property is appointed, or if any public officer takes charge or control of it or of its
property or affairs for the purpose of rehabilitation, conservation or liquidation
(any such event, an "
Agent Insolvency Event
"), then the Issuer will terminate
the appointment of such Agent in accordance with the Fiscal Agency Agreement
and appoint a successor Agent; and
(iii)
if at any time the Calculation Agent fails to (A) determine the Treasury Yield or
the Reset Interest Rate or duly calculate the Reset Interest Amount for any Reset
Interest Period or the interest amount payable on the Redemption Date (if the
Notes are to be redeemed pursuant to Condition 6 (
Redemption and Purchase
))
or (B) comply with any other requirement in relation to the Notes, then the Issuer
will terminate the appointment of the Calculation Agent in accordance with the
Fiscal Agency Agreement and appoint a successor Calculation Agent;
provided
,
10272790607-v17
109
70-41061831
however
, that, if the Calculation Agent duly calculates such Reset Interest Rate,
Reset Interest Amount or interest amount payable on the Redemption Date, as
the case may be, prior to its termination (and the appointment of its successor)
taking effect in accordance with clause (d) of this Condition 10, the Issuer may
elect, in its sole discretion and upon notice to the Holders in accordance with
Condition 15 (
Notices
), to cancel such termination (and appointment).
(c)
Any appointment or termination of appointment of, or any resignation by, any Agent
(other than the Settlement Agent) may only take effect not more than 45 and not less than
30 days after the Issuer has notified the Holders of such appointment, termination or
resignation in accordance with Condition 15 (
Notices
);
provided
,
however
, that, in the case
of the termination of an Agent with respect to which an Agent Insolvency Event has
occurred, such termination may take effect prior to the expiry of such 30-day notice period,
so long as a successor Agent has been appointed to the extent required by the immediately
succeeding sentence. Notwithstanding the foregoing, any termination of the appointment
of, or resignation by, the Fiscal Agent, the Registrar, the Swiss Paying Agent or the
Calculation Agent may not take effect until the Issuer has appointed a successor Fiscal
Agent, Registrar, Swiss Paying Agent or Calculation Agent, as applicable;
provided
,
however
, that, if no such successor has been appointed within 30 days of the scheduled
effectiveness of such termination or resignation, any Holder (on behalf of itself and all
others similarly situated) or, pursuant to and in accordance with the Fiscal Agency
Agreement, the Fiscal Agent, the Registrar, any Paying Agent or the Calculation Agent,
as the case may be, may petition any court of competent jurisdiction for the appointment
of a successor, at the expense of the Issuer.
(d)
Subject to subclause (c)(i) of this Condition 10, the Issuer may appoint or terminate the
appointment of a Settlement Agent, and a Settlement Agent may resign, at any time. The
Issuer will notify the Holders of any such appointment, termination or resignation in
accordance with Condition 15 (
Notices
).
11.
TAXATION
(a)
All payments to be made by or on behalf of the Issuer in respect of the Notes (including,
for the avoidance of doubt, payments by a Paying Agent) shall be made without
withholding or deduction for, or on account of, any present or future taxes, duties,
assessments or other government charges of any nature ("
Taxes
") imposed, levied,
collected, withheld or assessed by or on behalf of any Tax Jurisdiction or any political
subdivision thereof or any authority of or in a Tax Jurisdiction or any political subdivision
thereof having the power to impose, levy, collect, withhold or assess Taxes, unless
withholding, deduction or accounting for such Taxes is required by law.
(b)
In the event that any payment to be made by or on behalf of the Issuer in respect of the
Notes (including, for the avoidance of doubt, payments by a Paying Agent) is subject to
any withholding or deduction for, or on account of, any Taxes by requirement of law in a
Tax Jurisdiction (as determined by the relevant tax authority of or in such Tax
Jurisdiction), the Issuer shall pay such additional amounts as will result in the Holders
receiving the amounts that they would have received in respect of the Notes if no such
withholding or deduction had been required ("
Additional Amounts
").
(c)
No Additional Amounts will be payable pursuant to clause (b) of this Condition 11 in
relation to any Note:
(i)
if the relevant Holder is liable for such Taxes on such Note as a result of having
some connection with the relevant Tax Jurisdiction other than its mere ownership
or possession of such Note or the receipt of principal or interest in respect thereof;
or
(ii)
if such Taxes are a result of such Note having been presented for payment (where
presentment is required) more than 30 days after the Relevant Date, except to the
extent that the Holder would have been entitled to receive the Additional Amounts
if it had presented such Note for payment on the last day of the 30-day period; or
10272790607-v17
110
70-41061831
(iii)
with respect to any Tax collected pursuant to Sections 1471 through 1474 of the
US Internal Revenue Code, as amended (the "
Code
"), the regulations
promulgated thereunder, or applicable inter-governmental agreements or
agreements with the United States Internal Revenue Service entered into in
connection with the implementation of such sections of the Code, or legislation
enacted by a non-United States jurisdiction in connection with the implementation
of such sections of the Code (FATCA); or]
(iv)
where such withholding or deduction is required to be made pursuant to laws
enacted by Switzerland providing for the taxation of payments according to
principles similar to those laid down in the draft legislation of the Swiss Federal
Council of 3 April 2020, or otherwise changing the Swiss federal withholding tax
system from an issuer-based system to a paying agent-based system pursuant to
which a Person other than the issuer is required to withhold tax on any interest
payments; or
(v)
to the extent any combination of subclauses (i) through (iv) of this clause (c)
applies.
(d)
Any reference in these Terms and Conditions to amounts payable by the Issuer in respect
of the Notes includes (i) any Additional Amount payable pursuant to this Condition 11
and (ii) any sum payable pursuant to an obligation taken in addition to or in substitution
for the obligation in this Condition 11.
12.
STATUTE OF LIMITATIONS
In accordance with Swiss law, (a) claims for interest payments under the Notes will become time-
barred after the five-year period and (b) claims for the repayment or redemption of Notes will
become time-barred after the 10-year period, in each case, commencing on the date on which such
payments, repayment or redemption become due and payable.
13.
EVENTS OF DEFAULT
(a)
If any of the following events occurs, such occurrence will constitute an "
Event of
Default
":
(i)
the Issuer fails to pay the principal amount of any Note if and when the same
becomes due and payable under these Terms and Conditions, and such failure
continues unremedied for a period of 30 days; or
(ii)
the Issuer fails to pay any interest on the Notes if and when the same becomes
due and payable under these Terms and Conditions, and such failure continues
unremedied for a period of 30 days; or
(iii)
the Issuer fails to observe or perform any other covenant, condition, or agreement
contained in these Terms and Conditions, and such failure continues unremedied
for a period of 60 days after written notice thereof from any Holder to the Issuer;
or
(iv)
a Bankruptcy Event;
provided
,
however
, that, notwithstanding subclauses (i) to (iv) above, neither (A) the
opening of Restructuring Proceedings with respect to the Issuer nor (B) the exercise of
any Swiss Resolution Power with respect to the Issuer during any such Restructuring
Proceedings nor (C) the ordering of any Protective Measures with respect to the Issuer that
are ordered or confirmed upon the opening of or during any such Restructuring
Proceedings will constitute a default or an Event of Default.
(b)
Upon the occurrence of an Event of Default relating to any failure of the Issuer to meet
any payment obligation under these Terms and Conditions and subject to Condition 8
(
Contingent Write-down
) and Condition 9 (
Conversion
), (i) such payment obligation (and
such payment obligation only) will be immediately deemed a due and payable (
fällige
)
10272790607-v17
111
70-41061831
payment obligation of the Issuer, and (ii) if (A) the relevant Holder has formally requested
payment of such payment obligation, (B) such payment obligation has not been fulfilled
within the statutory period under Swiss law commencing after the date of such formal
request and (C) a writ of payment (
Zahlungsbefehl
) has been issued with respect to such
payment obligation pursuant to the DEBA, the relevant Holder may institute proceedings
against the Issuer in Switzerland (but not elsewhere) to enforce its rights with respect to
such payment obligation under the DEBA.
(c)
If a debt collection or insolvency proceeding with respect to the Issuer is instituted in
Switzerland in accordance with clause (b) of this Condition 13, the Issuer shall not (i) after
having received the writ of payment (
Zahlungsbefehl
) relating to the relevant payment
obligation, argue or plead that such payment obligation is not due and payable by the
Issuer, or (ii) prior to the declaration of bankruptcy (or similar proceeding under Swiss
insolvency laws), make any payment to the relevant Holder under or in connection with
the Notes.
(d)
In the case of any Event of Default arising under subclause (a)(iii) of this Condition 13
and subject to Condition 8 (
Contingent Write -down
) and Condition 9 (
Conversion
), any
Holder may seek specific performance or damages with respect to such Event of Default
pursuant to the Swiss Code if so entitled thereunder. Any such damage claim of any Holder
will rank junior to the rights and claims of all holders of Senior Obligations.
(e)
In the case of any Event of Default arising under subclause (a)(iv) of this Condition 13
and subject to Condition 8 (
Contingent Write -down
) and Condition 9 (
Conversion
), any
Holder may, by written notice to the Issuer, declare the principal amount of any of its
Notes, together with any accrued and unpaid interest thereon, immediately due and
payable, without presentment, demand, protest or other notice of any kind.
(f)
No remedy against the Issuer other than those described in this Condition 13 will be
available to the Holders in connection with the Issuer's obligations under these Terms and
Conditions, whether for the recovery of amounts owing under these Terms and Conditions
or in respect of any breach by the Issuer of any of its other obligations under these Terms
and Conditions or otherwise. In particular, no Holder may declare (i) the principal amount
of any Notes due and payable prior to any Redemption Date, or (ii) any interest on any
Notes due and payable prior to the relevant Interest Payment Date, except, in the case of
each of subclauses (i) and (ii) of this clause (f), pursuant to clause (e) of this Condition 13.
14.
MEETINGS OF HOLDERS; SUBSTITUTION AND AMENDMENT
(a)
Except as otherwise specified in this Condition 14, the provisions of bondholder meetings
contained in article 1157 et seqq. of the Swiss Code apply in relation to meetings of
Holders.
(b)
If a Tax Event or a Regulatory Event has occurred, the Issuer may, without the consent of
the Holders, either substitute all, but not some only, of the Notes for, or amend these Terms
and Conditions so that they remain or become, Compliant Securities,
provided
that:
(i)
neither a Tax Event nor a Regulatory Event arises as a result of such substitution
or amendment;
(ii)
FINMA has approved such substitution or amendment (if such approval is then
required under applicable Swiss laws and regulations);
(iii)
the Issuer has given the Holders not less than 30 days' notice of such substitution
or amendment in accordance with Condition 15 (
Notices
), which notice will,
subject to subclause (v) of this clause (b), be irrevocable, and state the date on
which such substitution or amendment will be effective (the "
Substitution or
Amendment Effective Date
");
(iv)
prior to the publication of any notice pursuant to subclause (iii) of this clause (b),
the Issuer shall deliver to the Fiscal Agent (A) a certificate signed by the
Authorised Signatories stating that the relevant requirement or circumstance
10272790607-v17
112
70-41061831
giving rise to the right to substitute or amend the terms of the Notes, as applicable,
pursuant to this clause (b) is satisfied and the reasons therefor and such certificate
will be conclusive and binding on the Holders, and (B) an opinion of independent
legal advisers of recognised standing to the effect that circumstances entitling the
Issuer to exercise its right to substitute or amend the terms of the Notes, as
applicable, pursuant to this clause (b) have arisen; and
(v)
no Trigger Event or Viability Event has occurred prior to the relevant Substitution
or Amendment Effective Date.
In connection with any substitution or amendment in accordance with this clause (b), the
Issuer shall comply with the rules of any stock exchange on which the Notes are for the
time being listed or admitted to trading.
(c)
In addition to its rights under clause (b) of this Condition 14, the Issuer may, without the
consent of the Holders, make any amendment to these Terms and Conditions that it
considers to be (i) necessary or desirable to give effect to (A) the provisions of clause (a)
of Condition 16 (
Issuer Substitution
) (including, without limitation, (x) if the Substitute
Issuer is organised and/or resident for tax purposes in a jurisdiction other than Switzerland,
any amendments to any references to the jurisdiction of "Switzerland" contained herein,
including, without limitation, amendments to the definition of the term "Bankruptcy
Event", the definition of the term "Business Day", the governing law of the subordination
provisions set forth in Condition 4 (
Status and Subordination
) and the provisions of
Condition 13 (
Events of Default
), and (y) any amendments to reflect UBS Group AG's
guarantee described in subclause (a)(iii) of Condition 16 (
Issuer Substitution
)), or (B) the
provisions of subclause (e)(iii) and/or subclause (e)(i)(B) of Condition 9 (
Conversion
), or
(ii) formal, minor or technical in nature, or (iii) necessary to correct a manifest error, or
(iv) not materially prejudicial to the interests of the Holders.
(d)
The Issuer shall notify the Holders of any amendments made pursuant to clause (c) of this
Condition 14 in accordance with Condition 15 (
Notices
), which notice shall state the date
on which such amendment will be effective.
(e)
Any amendment made pursuant to this Condition 14 will be binding on the Holders in
accordance with its terms.
15.
NOTICES
(a)
So long as the Notes are listed on the SIX Swiss Exchange, notices to Holders shall be
given by the Issuer (i) by means of electronic publication on the internet website of SIX
Exchange Regulation Ltd (
https://www.ser-ag.com
), where notices are as at the Issue Date
published under the address
https://www.ser-ag.com/en/resources/notifications -market-
participants/official-notices.html#/
, or (ii) otherwise in accordance with the regulations of
the SIX Swiss Exchange. Any notice will be validly given on the date of such publication
or, if published more than once, on the date of the first such publication.
(b)
If the Notes are for any reason no longer listed on the SIX Swiss Exchange:
(i)
if the Notes are represented by one or more Global Certificates deposited with a
custodian for DTC, notices to Holders shall only be required to be given by the
Issuer in accordance with clause (c) of this Condition 15; or
(ii)
if the Global Certificate(s) have been exchanged for Definitive Certificates, the
Issuer shall send notices to Holders by first class mail at their respective addresses
as recorded in the Register, and any such notice will be validly given on the fourth
Business Day after the date of such mailing.
(c)
So long as the Notes are represented by one or more Global Certificates deposited with a
custodian for DTC, any notices required to be given by the Issuer to the Holders hereunder
shall also be given to the Indirect Holders through the Fiscal Agent to DTC for forwarding
to the Indirect Holders. Any such notice will be validly given on the date of delivery to
DTC in accordance with DTC's applicable procedures.
10272790607-v17
113
70-41061831
16.
ISSUER SUBSTITUTION
(a)
The Issuer (for purposes of this Condition 16, the "
Current Issuer
") may, without the
consent of the Holders, substitute any entity (whether or not such entity is organised under
the laws of Switzerland) (such substitute entity, the "
Substitute Issuer
") for itself as
principal debtor under the Notes upon giving no more than 30 and no less than 10 days'
notice to the Holders in accordance with Condition 15 (
Notices
),
provided
that:
(i)
the Substitute Issuer is UBS Group AG or, if the Substitute Issuer is not UBS
Group AG, (A) an exemption exists from the requirement to register the
Substitute Issuer as an investment company under the US Investment Company
Act, and (B) at least 95 per cent. of the Substitute Issuer's capital and voting rights
are held, directly or indirectly, by UBS Group AG;
(ii)
the Current Issuer is not in default in respect of any amount payable under the
Notes at the time of such substitution;
(iii)
if the Substitute Issuer is not UBS Group AG, UBS Group AG has irrevocably
and unconditionally guaranteed to the Holders, pursuant to article 111 of the
Swiss Code and on a subordinated basis corresponding
mutatis mutandis
to
Condition 4 (
Status and Subordination
), (A) the due and punctual payment of
principal and interest and all other amounts due and payable by the Substitute
Issuer under, or in respect of, the Notes upon receipt of the written request for
payment of the relevant amount, and (B) upon the occurrence of a Conversion,
the due delivery of the Ordinary Shares required to be delivered pursuant to
Condition 9 (
Conversion
), and on the terms whereby subclause (iii) of
Condition 5(h) (
Cancellation of interest; prohibited interest
), subclause (d)(ii)(C)
of Condition 9 (
Conversion
), Condition 11 (
Taxation
), Condition 13 (
Events of
Default
) and Condition 21 (
No Set-off by Holders
) apply to UBS Group AG and
to its obligations under such guarantee either by making the necessary
consequential amendments to such Conditions or including such Conditions
applicable to UBS Group AG and to its obligations under such guarantee in such
guarantee itself, as applicable;
(iv)
the Current Issuer and the Substitute Issuer (A) have entered into such documents
(the "
Substitution Documents
") as are necessary to give effect to such
substitution and pursuant to which the Substitute Issuer has (x) undertaken in
favour of each Holder to be bound by these Terms and Conditions as the principal
debtor (on a subordinated basis corresponding to Condition 4 (
Status and
Subordination
)) under the Notes in place of the Current Issuer and (y) assumed
the obligations of the Current Issuer under the Fiscal Agency Agreement, and
(B) procure that all action, conditions and things required to be taken, fulfilled
and done (including, without limitation, the obtaining of any necessary consents)
to ensure that the Substitution Documents represent valid, legally binding and
enforceable obligations of the Substitute Issuer have been taken, fulfilled and
done and are in full force and effect;
(v)
if the Substitute Issuer is resident for tax purposes in a jurisdiction (the "
New
Residence
") other than that in which the Current Issuer prior to such substitution
was resident for tax purposes (the "
Former Residence
"), the Substitution
Documents contain an undertaking by the Substitute Issuer and/or such other
provisions as may be necessary to ensure that each Holder has the benefit of an
undertaking in terms corresponding to the provisions of Condition 11 (
Taxation
)
in relation to the payment of all amounts due and payable under, or in respect of,
the Notes and in relation to the guarantee referred to in subclause (iii) above, with,
in the case of the Notes but not such guarantee, the substitution of references to
the Former Residence with references to the New Residence, and an undertaking
by the Substitute Issuer to indemnify each Holder against any Tax that is imposed
on it by (or by any authority in or of) the New Residence and, if different, the
jurisdiction of the Substitute Issuer's organisation with respect to any Note and
10272790607-v17
114
70-41061831
that would not have been so imposed had the substitution not been made, as well
as against any Tax, and any cost or expense, relating to such substitution;
(vi)
if the Substitute Issuer is not UBS Group AG, FINMA has approved such
substitution (if such approval is then required under applicable Swiss laws and
regulations), and the Current Issuer and the Substitute Issuer have obtained all
other necessary governmental and other approvals and consents for such
substitution and for the performance by the Substitute Issuer of its obligations
under the Substitution Documents;
(vii)
if the Substitute Issuer is not organised under the laws of Switzerland, the
Substitute Issuer has appointed a process agent as its agent in Switzerland to
receive service of process on its behalf in relation to any legal proceedings arising
out of or in connection with the Notes; and
(viii)
such substitution does not give rise to a Tax Event or a Regulatory Event.
(b)
Upon any substitution pursuant to clause (a) of this Condition 16, (i) the Substitute Issuer
will succeed to, and be substituted for, and may exercise every right and power of, the
Current Issuer under the Notes with the same effect as if the Substitute Issuer had been
named as Issuer in these Terms and Conditions, and (ii) the Current Issuer will be released
from its obligations under the Notes.
(c)
After giving effect to any substitution pursuant to clause (a) of this Condition 16,
(i) references to the "Issuer" in the Notes and these Terms and Conditions will be
references to the Substitute Issuer, and (ii) references to the "Tax Jurisdiction" in the Notes
and these Terms and Conditions will be read and construed as including the jurisdiction of
establishment of the Substitute Issuer and, if different, the jurisdiction in which the
Substitute Issuer is resident for tax purposes instead of or in addition to (as the case may
be) references to the jurisdiction of establishment of the Issuer and Switzerland.
17.
CONSOLIDATION, MERGER OR SALE
The Issuer will not consolidate with, merge with or into, or sell, convey, transfer or otherwise
dispose of all or substantially all of its property and assets (as an entirety or substantially as an
entirety in one transaction or a series of related transactions) to, any Person (other than with, into or
to any Person of which at least 95 per cent. of such Person's capital and voting rights are held,
directly or indirectly, by the Issuer) or permit any Person to merge with or into the Issuer unless
(a) the Issuer will be the continuing Person, or (b) the Person formed by such consolidation or into
which the Issuer is merged or that acquired such property and assets of the Issuer expressly assumes
in writing (or, in the case of an acquisition of property and assets, guarantees) all of the obligations
of the Issuer under the Notes.
18.
FURTHER ISSUES
The Issuer may from time to time without the consent of the Holders issue further notes and,
provided
that such notes have the same terms and conditions as the Notes in all respects (or in all
respects except for the issue date and/or first date on which interest is paid), such further notes will
be consolidated and form a single series with the Notes. If the Issuer issues any such further notes
pursuant to this Condition 18, references in these Terms and Conditions to "
Notes
" include such
further notes, unless the context otherwise requires.
19.
CURRENCY INDEMNITY
Any amount received or recovered by any Holder in a currency other than USD (whether as a result
of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the insolvency,
winding-up or dissolution of the Issuer or otherwise) under the Notes will only constitute a
discharge of the Issuer to the extent of the amount in USD that such Holder is able to purchase
with the amount so received or recovered in such other currency on the date of such receipt or
recovery (or, if it is not practicable to purchase USD with such amount on such date, on the first
date on which it is practicable to do so). If the amount of USD that such Holder is able to purchase
is less than the amount owed by the Issuer to such Holder under the Notes, the Issuer shall
10272790607-v17
115
70-41061831
indemnify such Holder against any loss sustained by it as a result. In addition, the Issuer shall
indemnify such Holder for the costs of making such purchase. For purposes of this Condition 19,
it is sufficient for the relevant Holder to demonstrate that it would have suffered a loss had an
actual purchase been made. The indemnities under this Condition 19 will (a) constitute a separate
and independent obligation from the Issuer's other obligations hereunder, (b) give rise to a separate
and independent cause of action, (c) apply irrespective of any indulgence granted by any Holder
and (d) continue in full force and effect despite any other judgment, order, claim or proof for a
liquidated amount in respect of any amount due under the Notes or any other judgment or order.
20.
RULE 144A INFORMATION
If at any time the Issuer is neither a reporting company under Section 13 or Section 15(d) of the
US Exchange Act, nor exempt from reporting pursuant to Rule 12g3-2(b) under the US Exchange
Act, the Issuer will comply with any applicable requirements of Rule 144A(d)(4) under the US
Securities Act in relation to the Notes.
21.
NO SET-OFF BY HOLDERS
Subject to applicable law, each Holder and Indirect Holder, by acceptance of any direct or
beneficial interest in a Note, agrees that it will not, and waives its right to, exercise, claim or plead
any right of set-off, compensation or retention with respect to any amount owed to it by the Issuer
in respect of, or arising in connection with, the Notes.
22.
GOVERNING LAW AND JURISDICTION
(a)
The Notes and all non-contractual obligations arising out of or in connection with the
Notes are governed by and construed in accordance with the laws of Switzerland.
(b)
The courts of the Canton of Zurich (venue being the City of Zurich) shall have exclusive
jurisdiction to settle any disputes that may arise out of or in connection with the Notes,
including any non-contractual obligation arising out of or in connection with the Notes.