Exhibit 1.1

Execution version

Diageo Capital plc

Diageo Investment Corporation

Diageo plc

DEBT SECURITIES

Underwriting Agreement

October 2, 2023

To the Representatives of the several Underwriters named in the respective Pricing Agreements hereinafter described

Ladies and Gentlemen:

From time to time Diageo Capital plc, a public limited company incorporated under the laws of Scotland (the “Scottish Issuer”), and Diageo Investment Corporation, a Delaware corporation (the “U.S. Issuer”) (each an “Issuer” and together the “Issuers”), propose severally to enter into one or more Pricing Agreements substantially in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell, to the several firms named in Schedule I to the applicable Pricing Agreement (such firm or firms constituting the “Underwriters” with respect to such Pricing Agreement and the securities specified therein) the principal amount of their debt securities identified in Schedule II to such Pricing Agreement (generally and, as the context may require, with respect to such Pricing Agreement, the “Securities”) to be issued pursuant to the provisions of the applicable indenture identified in Schedule II of such Pricing Agreement (each applicable indenture hereinafter called an “Indenture”), among one or more Issuers parties to the applicable Pricing Agreement (each, an “applicable Issuer”), Diageo plc, as Guarantor (the “Guarantor”), and the Trustee identified in Schedule II to such Pricing Agreement (the “Trustee”). The Securities are to be unconditionally guaranteed (the “Guarantees”) as to payment of principal and interest by the Guarantor. All references herein to “this Agreement” shall be deemed to refer to this Agreement together with the applicable Pricing Agreement. The obligations of the Issuers under this Agreement shall be several and not joint.

The term “Representatives” also refers to a single firm acting as sole representative of the Underwriters and to an Underwriter or Underwriters who act without any firm being designated as its or their representatives.

I.

Each applicable Issuer (as to itself) and the Guarantor (as to each Issuer and to itself) represents and warrants to each of the Underwriters that:

(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), on Form F-3 (Registration No. 333-269929) relating to the Securities and the Guarantees to be issued severally from time to time by the Issuers and the Guarantor has been filed by the Issuers and the Guarantor with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date of the applicable Pricing Supplement, such registration statement and any post-effective amendment thereto became effective on filing; no stop order suspending the effectiveness of such registration statement is in effect and no proceedings for such purpose are pending before or threatened by the Commission; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or the Guarantor.

For the purposes of this Agreement:

(i) the basic prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of the applicable Pricing Agreement, is hereinafter called the “Basic Prospectus”;

(ii) any preliminary form of prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act is hereinafter called a “Preliminary Prospectus”;

(iii) the various parts of such registration statement, including all exhibits thereto but excluding Form T-1 and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B under the Securities Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”;

(iv) the “Applicable Time” is the time specified as such in the applicable Pricing Agreement;

(v) the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time, is hereinafter called the “Pricing Prospectus”;

(vi) the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Section V(a) hereof is hereinafter called the “Prospectus”;

(vii) any reference in this Agreement to the Registration Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act which were filed under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) on or before the date of this Agreement or the date of the Registration Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be; and

(viii) any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed under the Exchange Act after the date of this Agreement, or the date of the Registration Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be, which are deemed to be incorporated by reference therein.

 

2

(b) (i) Each part of the Registration Statement, when such part became effective, did not contain, and, as amended or supplemented, if applicable, did not or will not, as the case may be, contain at the time of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply, as the case may be, in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Prospectus does not or will not, as the case may be, as of the date of the Prospectus and as at the Closing Date, contain and, as amended or supplemented, if applicable, at the time of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph I(b) do not apply to (A) statements or omissions in the Registration Statement or the Prospectus, as amended or supplemented, if applicable, based upon information concerning any Underwriter furnished to the Issuers or the Guarantor in writing by such Underwriter through you expressly for use therein or (B) the Statement of Eligibility and Qualification of the Trustee on Form T-1 and (iv) each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Prospectus complied or will comply when so filed in all material respects with the Exchange Act.

(c) No order preventing or suspending the use of any Preliminary Prospectus or any “issuer free writing prospectus” as defined in Rule 433 under the Securities Act relating to the Securities (an “Issuer Free Writing Prospectus”) has been issued by the Commission, and each Preliminary Prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the rules and regulations of the Commission thereunder.

(d) The Pricing Prospectus, as supplemented by any final term sheet prepared and filed pursuant to Section VII(a) hereof (collectively, the “Pricing Disclosure Package”), as of the Applicable Time (as specified in the applicable Pricing Agreement), did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule III to the applicable Pricing Agreement (if any) does not and will not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and when taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that the representations and warranties set forth in this paragraph I(d) do not apply to statements or omissions in the Pricing Disclosure Package or in an Issuer Free Writing Prospectus based upon information concerning any Underwriter furnished to the Issuers or the Guarantor in writing by such Underwriter through you expressly for use therein.

(e) At the time of the filing of the Registration Statement, at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and at the time the applicable Issuer or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Securities in reliance on the exemption provided for in Rule 163 under the Securities Act, the applicable Issuer and the Guarantor were each a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act.

 

3

(f) At the earliest time the applicable Issuer or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Securities, the applicable Issuer was an “ineligible issuer,” as defined in Rule 405 under the Securities Act, without taking account of any determination by the Commission pursuant to Rule 405 under the Securities Act that it is not necessary that the applicable Issuer be considered an “ineligible issuer”. Other than the Issuer Free Writing Prospectuses listed on Schedule III, the applicable Issuer has not prepared, used or referred to, and will not, prepare, use or refer to, any Issuer Free Writing Prospectus.

(g) The Guarantor or the applicable Issuer has paid the required Commission filing fees relating to the Securities pursuant to Rule 456 under the Securities Act and in compliance with Rule 415 and Rule 457 under the Securities Act.

(h) The Scottish Issuer is a public limited company, duly incorporated, validly existing and registered under the laws of Scotland, the U.S. Issuer is an existing corporation, duly incorporated and in good standing under the laws of the State of Delaware and the Guarantor is a public limited company duly incorporated under the laws of England and Wales and is an existing company; and the Issuers and the Guarantor, as applicable, each have the corporate power and authority to own their property and to conduct their business as described in the Basic Prospectus and the Pricing Prospectus.

(i) Each applicable Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and has been duly authorized, executed and delivered by the applicable Issuer and duly authorized, executed and delivered by the Guarantor and is a valid and legally binding agreement of such Issuer and the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(j) The Securities have been duly authorized and, when issued and delivered against payment therefor pursuant to this Agreement and the applicable Pricing Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the applicable Issuer, entitled to the benefits provided by the applicable Indenture, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(k) The Guarantees have been duly authorized and, when issued and delivered against payment therefor pursuant to this Agreement and the applicable Pricing Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Guarantor, entitled to the benefits provided by the applicable Indenture, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(l) There has not been any material adverse identifiable change, or any development involving a prospective material adverse identifiable change, in the condition, financial or otherwise, or in the earnings, business or operations of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Pricing Prospectus.

 

4

(m) The issue of the Securities and the compliance by the applicable Issuer and Guarantor with the provisions of the Securities, the Indenture, this Agreement and the applicable Pricing Agreement, and the consummation of the transactions herein and therein (to the extent relevant to the issue of the Securities) contemplated will not (i) result in any violation of the provisions of the articles of incorporation, certificate of incorporation, by-laws or equivalent constitutional documents of the applicable Issuer or Guarantor or (ii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the applicable Issuer or the Guarantor is a party or by which the applicable Issuer or the Guarantor is bound or to which any of the property or assets of the applicable Issuer or the Guarantor is subject, or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the applicable Issuer or the Guarantor or any of their properties, in each case in this clause (ii) which conflict, breach or violation will have a material adverse effect on the Guarantor and its subsidiaries on a consolidated basis; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities, the issue of the Guarantees or the consummation by the applicable Issuer or the Guarantor of the transactions contemplated by this Agreement and the applicable Pricing Agreement or the Indenture, except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters.

(n) The financial statements, and the related notes thereto, included or incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus present fairly the consolidated financial position of the Guarantor and its consolidated subsidiaries as of the dates indicated and the results of its operations and the changes in their consolidated cash flows for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis; the supporting schedules included in the Registration Statement present fairly the information required to be stated therein; and, if applicable, the pro forma financial information, and the related notes thereto, included in the Registration Statement, the Pricing Prospectus and the Prospectus has been prepared in accordance with the applicable requirements of the Securities Act and is based upon good faith estimates and assumptions believed by the Guarantor to be reasonable.

II.

Each Underwriter severally represents and agrees that it has not made and will not make an offer of the Securities to investors in the United Kingdom other than to persons (i) who have professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended, the “Order”) or (ii) who fall within Article 49(2)(a) to (d) of the Order (all such persons being referred to as “relevant persons” for the purposes of this section).

 

5

Each Underwriter severally represents and agrees that: (a) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (“FSMA”)) received by it in connection with the issue and sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the applicable Issuer or the Guarantor; (b) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom and (c) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the United Kingdom. For the purposes of this provision:

(a) the expression “retail investor” means a person who is one (or more) of (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or (ii) a customer within the meaning of the provisions of the FSMA or any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; and

(b) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities.

Each Underwriter severally represents and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the European Economic Area. For the purposes of this provision:

(a) the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; and

(b) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities.

Other than as provided in the applicable Pricing Agreement, in the event the Securities are intended to be listed on the New York Stock Exchange, each Underwriter severally represents and agrees that in relation to Securities issued by the Scottish Issuer, it will only solicit sales of, and communicate to the Scottish Issuer offers to purchase, Securities with (i) minimum denominations of $1,000 or more and (ii) an aggregate principal amount of $5,000,000 or more. If an Underwriter solicits sales of, and communicates to the Scottish Issuer, Securities that do not meet the above criteria, such Underwriter severally represents and agrees that the Securities will otherwise meet the applicable requirements of The New York Stock Exchange LLC necessary to list the Securities.

III.

The Issuers and the Guarantor are advised by you that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after the applicable Pricing Agreement has become effective as in your judgment is advisable. The terms of the public offering of the Securities are set forth in the Prospectus.

 

6

IV.

Payment for the Securities shall be made by certified or official bank check or checks or wire transfer, as specified in the applicable Pricing Agreement, payable to the order of the Issuer identified in such Pricing Agreement in the funds in such Pricing Agreement at the time and place, in each case as set forth in such Pricing Agreement, or at such other time on the same or such other date, not later than the third New York business day thereafter, as shall be designated in writing by you, which date and time may be postponed by agreement among you, an applicable Issuer and the Guarantor or as provided in Section X hereof. The time and date of such payment, as specified in the applicable Pricing Agreement in relation to an offering of Securities, are hereinafter referred to as the “Closing Date”.

Payment for the Securities shall be made against delivery to you for the respective accounts of the several Underwriters of the Securities registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the date of delivery, with any transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly paid. It is understood that each Underwriter has authorized the Representatives, for their own account, to accept delivery of, and make payment of the purchase price for, the Securities.

V.

The several obligations of the Underwriters hereunder are subject to the following conditions, appropriately modified for each applicable Issuer:

(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424 within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; any final term sheet contemplated by Section VII(a) hereof, and any other material required to be filed by the applicable Issuer pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness or preventing the use of the Registration Statement or any part thereof, the Prospectus or any Issuer Free Writing Prospectus shall be in effect, no proceedings for such purpose shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received; and all requests for additional information on the part of the Commission shall have been complied with to your satisfaction.

(b) On or after the Applicable Time and prior to the Closing Date, there shall not have been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the applicable Issuer’s or the Guarantor’s securities by any “nationally recognized statistical rating organization” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act.

(c) There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Pricing Prospectus, that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, after consultation with each applicable Issuer and the Guarantor, impracticable to market the Securities on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus.

 

7

(d) The Underwriters shall have received on the Closing Date certificates, dated the Closing Date and signed, respectively, by an executive officer or a director of each applicable Issuer and of the Guarantor, to the effect set forth in clauses (b) and (c) above and to the effect that the representations and warranties of such Issuer and the Guarantor contained in this Agreement are true and correct as of the Closing Date and that such Issuer and the Guarantor shall have performed in all material respects all of their respective obligations to be performed hereunder or satisfied on or prior to the Closing Date. The officer or director signing and delivering such certificate may certify to the best of his knowledge.

(e) You shall have received on the Closing Date an opinion of Sullivan & Cromwell LLP, United States counsel for the Issuers and the Guarantor, dated the Closing Date, to the effect that:

(i) if applicable, the U.S. Issuer has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware;

(ii) the applicable Indenture has been duly authorized, executed and delivered by the U.S. Issuer (if applicable) and, assuming the applicable Indenture has been duly authorized, executed and delivered by the Scottish Issuer insofar as the laws of Scotland are concerned, it has been duly executed and delivered by the Scottish Issuer (if applicable), and, assuming each applicable Indenture has been duly authorized, executed and delivered by the Guarantor insofar as the laws of England and Wales are concerned, it has been duly executed and delivered by the Guarantor; each applicable Indenture has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the applicable Issuer and the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;

(iii) the applicable Securities have been duly authorized, executed, authenticated, issued and delivered by the U.S. Issuer (if applicable) and, assuming the applicable Indenture has been duly authorized, executed and delivered by the Scottish Issuer and the applicable Securities have been duly authorized, executed, authenticated, issued and delivered, in each case insofar as the laws of Scotland are concerned, they have been duly executed, authenticated, issued and delivered by the Scottish Issuer (if applicable) and constitute valid and legally binding obligations of the applicable Issuer (if applicable), enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;

(iv) assuming the applicable Indenture has been duly authorized, executed and delivered by the Guarantor and the Guarantees have been duly authorized, executed and delivered insofar as the laws of England and Wales are concerned, the Guarantees have been duly executed and delivered by or on behalf of the Guarantor and constitute valid and legally binding obligations of the Guarantor enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; (v) this Agreement has been duly authorized, executed and delivered by the U.S. Issuer (if applicable) and, assuming this Agreement has been duly authorized, executed and delivered by the Scottish Issuer insofar as the laws of Scotland are concerned, it has been duly executed and delivered by the Scottish Issuer (if applicable) and, assuming this Agreement has been duly authorized, executed and delivered by the Guarantor insofar as the laws of England and Wales are concerned, it has been duly executed and delivered by the Guarantor;

 

8

(vi) the issuance of the Securities in accordance with the applicable Indenture and the sale of the Securities by the applicable Issuer to the Underwriters pursuant to this Agreement do not, and the performance by such Issuer and the Guarantor of their respective obligations under the applicable Indenture, this Agreement, the Securities and the Guarantees will not, in the case of the U.S. Issuer, violate the U.S. Issuer’s Certificate of Incorporation or By-laws, or violate any Federal law of the United States, the law of the State of New York (including the published rules and regulations thereunder) that normally are applicable to general business corporations and the issuance, sale, and delivery of the Securities or, in the case of the U.S. Issuer, the General Corporation Law of the State of Delaware, applicable to such Issuer or the Guarantor; provided, however, that, with respect to this paragraph (vi), such counsel need express no opinion with respect to Federal or state securities laws, anti-fraud laws and fraudulent transfer laws, tax laws, the Employee Retirement Income Security Act of 1974, antitrust laws and laws that restrict transactions between United States persons and citizens or residents of certain foreign countries or specially designated nationals and organizations or any law that is applicable to the Issuer, the Guarantor, the Indenture, the Underwriting Agreement, the Securities, the Guarantees or the issuance, sale or delivery of the Securities solely as part of a regulatory regime applicable to the Issuer, the Guarantor or their respective affiliates due to its or their status, business or assets; provided, further, that insofar as performance by such Issuer and the Guarantor of their respective obligations under the applicable Indenture, this Agreement, the Securities and the Guarantees is concerned, such counsel need express no opinion as to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights;

(vii) all regulatory consents, authorizations, approvals and filings required to be obtained or made by each applicable Issuer or the Guarantor, as the case may be, under the Federal laws of the United States and the laws of the State of New York for the issuance by the Guarantor of the Guarantees and the issuance, sale and delivery of the Securities by each applicable Issuer to the Underwriters have been obtained or made; and

(viii) the applicable Issuer is not an “investment company” as defined in the United States Investment Company Act of 1940.

(ix) In rendering such opinion, such counsel may state that their opinion is limited to the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware and such counsel may (i) note that the Underwriters have received an opinion of Slaughter and May, English counsel for the Guarantor, rendered pursuant to Section V(f) and an opinion of Morton Fraser LLP, Scottish counsel to the Scottish Issuer rendered pursuant to Section V(g); (ii) assume that any document referred to in their opinion and executed by the Scottish Issuer has been duly authorized, executed and delivered pursuant to Scottish law; and (iii) assume that any document referred to in their opinion and executed by the Guarantor has been duly authorized, executed and delivered pursuant to English law.

 

9

(x) Such counsel may also state that, with your approval, they have relied as to certain matters upon certificates of each applicable Issuer and the Guarantor and each applicable Issuer’s and the Guarantor’s officers or directors and employees and upon information obtained from other sources believed by them to be responsible, and that they have assumed that each applicable Indenture has been duly authorized, executed and delivered by the Trustee, that the Securities conform to the specimens thereof examined by them, that the Trustee’s certificates of authentication of the Securities have been manually signed by one of the Trustee’s duly authorized officers and that the signatures on all documents examined by them are genuine, assumptions which they have not independently verified.

(xi) Such counsel shall also state that they have reviewed the Registration Statement, the Prospectus and the Pricing Disclosure Package and participated in discussions with representatives of each applicable Issuer and the Guarantor and their English and, if applicable, Scottish counsel, the accountants for the Guarantor and representatives of the Underwriters and their U.S. counsel concerning certain matters relating to each applicable Issuer and the Guarantor and reviewed certificates of certain officers of each applicable Issuer and the Guarantor and letters addressed to you from the Guarantor’s accountants; and on the basis of the information that they gained in the course of the performance of such services, considered in the light of their understanding of the applicable law (including the requirements of Form F-3 and the character of prospectus contemplated thereby) and the experience they have gained through their practice under the Securities Act, such counsel shall confirm to the Underwriters that the Registration Statement, as of the date of the Prospectus, and the Basic Prospectus, as supplemented by the Prospectus, as of the date of the Prospectus, appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities, to the requirements of the Securities Act, the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder; and nothing that has come to the attention of such counsel has caused them to believe, insofar as relevant to the offering of the Securities, (a) the Registration Statement, as of the date of the Prospectus, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (b) that the Pricing Disclosure Package, as of a time specified by you to be immediately prior to the time of the first sale of the Securities by any Underwriter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (c) that the Basic Prospectus, as supplemented by the Prospectus, as of the date of the Prospectus, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

10

Such opinion may state (1) that such counsel do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus or the Pricing Disclosure Package except for those made under the captions “Description of Debt Securities and Guarantees” and “Taxation—United States Taxation – United States Taxation of Debt Securities” in the Prospectus and “Description of Notes” and “Underwriting” in the Prospectus and the Pricing Disclosure Package insofar as they relate to the provisions of documents therein described and (2) that they do not express any opinion or belief as to the financial statements or other financial data derived from accounting records contained in the Registration Statement, the Prospectus or the Pricing Disclosure Package, or as to management’s report of its assessment of the effectiveness of the Guarantor’s internal control over financial reporting or the registered public accounting firm’s attestation report, each as included in the Registration Statement, the Prospectus or the Pricing Disclosure Package, or as to the statement of the eligibility of the Trustee under each applicable Indenture under which the Securities are being issued.

(f) You shall have received on the Closing Date an opinion of Slaughter and May, English counsel to the Guarantor, dated the Closing Date, to the effect that:

(i) the Guarantor is a public limited company duly incorporated under the laws of England and Wales and is an existing company;

(ii) the Guarantor has the capacity and power to execute and deliver each applicable Indenture, the Guarantee, this Agreement and the applicable Pricing Agreement (collectively, the “Agreements”) and to exercise its rights and perform its obligations thereunder;

(iii) the Guarantor has taken all necessary corporate action to authorize the execution and delivery of the Agreements;

(iv) the Agreements have been duly executed by the Guarantor;

(v) on the assumption that the Agreements create valid and binding obligations of the parties under New York law, English law does not prevent any provisions of the Agreements from being valid and binding obligations of the Guarantor;

(vi) the choice of the laws of the State of New York as the governing law of the Agreements is a valid choice of law; the validity and binding nature of the obligations contained in the Agreements are expressed to be governed by New York law;

(vii) the execution and delivery by the Guarantor of, and the performance by the Guarantor of its obligations under, the Agreements will not contravene (i) any law of England and Wales in a manner which would render such performance, insofar as it relates to the Guarantor’s payment obligations, unlawful or (ii) the Memorandum and Articles of Association of the Guarantor;

 

11

(viii) there are no required authorizations, approvals or consents of, or registration or filing with, any court, governmental or regulatory authority of or with the United Kingdom required in connection with the execution, delivery and performance by the Guarantor of the Agreements; (ix) subject to the reservation that there is doubt as to the enforceability in the United Kingdom, in original actions or in actions for enforcement of judgments of United States courts, of civil liabilities predicated solely upon the United States Federal or State securities laws, a final and conclusive judgment against the Guarantor for a definite sum of money entered by any competent State or Federal court in the United States of America in any suit, action or proceeding arising out of or in connection with the Agreements would be enforced by the English courts, without re-examination or re-litigation of the matters adjudicated upon, by the English courts, provided that:

 

(A)

the judgment was not obtained by fraud;

 

(B)

the enforcement of the judgment would not be contrary to English public policy (and enforcement of a judgment for liability founded in US Federal or State securities law may be contrary to public policy) or give effect to a foreign penal, revenue or other public law;

 

(C)

the judgment was not obtained in proceedings contrary to natural justice;

 

(D)

the judgment is not inconsistent with an English judgment in respect of the same matter;

 

(E)

the judgment is not for multiple damages;

 

(F)

enforcement is not prevented by the Protection of Trading Interests Act 1980;

 

(G)

enforcement is not prevented by EU Regulation 2271/96 (the “Blocking Regulation”) (as it forms part of English law pursuant to the EUWA) or legislation related to the Blocking Regulation;

 

(H)

enforcement is not prevented by the Human Rights Act 1998; and

 

(F)

enforcement proceedings are instituted within six years after the date of the judgment;

(x) Assuming that the submission to the non-exclusive jurisdiction of any Federal or State court in the Borough of Manhattan, the City, County or State of New York (the “New York Courts”) contained in the Agreements is valid and binding under New York law, (a) English law will not prevent the same from being valid and binding upon the Guarantor, (b) the Guarantor is not prevented by its Memorandum and Articles of Association or any overriding principles of English law from agreeing to waive any objection pursuant to the Agreements to the venue of proceedings in the New York Courts and (c) such waiver is valid and binding under the laws of England and Wales;

(xi) Service of process effected in the manner set forth in Section XI of this Agreement and Section 115 of each applicable Indenture, assuming its validity and effectiveness under New York law, will be effective, insofar as the laws of England and Wales are concerned, to confer valid jurisdiction over the Guarantor;

(xii) The Guarantor has the power to submit, and has taken all necessary corporate action to submit, to the jurisdiction of any New York Court, and to appoint Diageo North America, Inc.

 

12

as its authorized agent for the purposes and to the extent described in Section XI of this Agreement and to appoint CT Corporation as its authorized agent for the purposes and to the extent described in Section 115 of each applicable Indenture; and (xiii) the statements in the seventh sentence of the section entitled “Enforceability of Certain Civil Liabilities” and the sections entitled “Description of Debt Securities and Guarantees – Payment of Additional Amounts” and “Taxation – United Kingdom Taxation – United Kingdom Taxation of Debt Securities” of the Prospectus, in each case as amended or supplemented by the prospectus supplement, insofar as they are summaries of United Kingdom tax considerations or refer to statements of English law or legal conclusions, in all material respects present fairly the information shown.

In giving such opinion, such counsel may state that such opinion is confined to and given on the basis of English law as currently applied by the English courts and on the basis that it will be governed by and construed and have effect in accordance with English law. Such opinion also may state that nothing therein is to be taken as indicating that the remedy of an order for specific performance or the issue of an injunction would be available in an English court in respect of the obligations arising under an applicable Indenture, the Guarantees or this Agreement in that such remedies are available only at the discretion of the court and are not usually granted where damages would be an adequate remedy. Also in giving such opinion, such counsel may rely upon the opinion or opinions of counsel named in paragraph (e) of this Article as to matters of New York and United States federal law.

(g) If applicable, you shall have received on the Closing Date an opinion of Morton Fraser LLP, Scottish counsel for the Scottish Issuer and the Guarantor, dated the Closing Date, to the effect that:

(i) the Scottish Issuer is a public limited company, duly incorporated, validly existing and registered under the laws of Scotland, and has the full corporate power and authority to execute, deliver and perform its obligations under the applicable Indenture, the applicable Securities and this Agreement;

(ii) the applicable Indenture has been duly authorized, executed and delivered by the Scottish Issuer and, on the assumption that the applicable Indenture creates valid and binding obligations of the parties under New York law, Scottish law will not prevent any provision of the applicable Indenture from being a valid and binding obligation of the Scottish Issuer, subject to all limitations resulting from bankruptcy, insolvency, liquidation, receivership, administration, reorganization of the Scottish Issuer and court schemes, moratoria and similar laws of general application affecting the enforcement of creditors’ rights applicable to the Scottish Issuer;

(iii) the applicable Securities have been duly authorized, executed, authenticated and issued and delivered by the Scottish Issuer and, on the assumption that the applicable Securities create valid and binding obligations of the parties thereto under New York law, Scottish law will not prevent any provision of the applicable Securities from being a valid and binding obligation of the Scottish Issuer subject to all limitations resulting from bankruptcy, insolvency, liquidation, receivership, administration and reorganization of the Scottish Issuer and court schemes, moratoria and similar laws of general application affecting the enforcement of creditors’ rights applicable to the Scottish Issuer; (iv) this Agreement has been duly authorized, executed, and delivered by the Scottish Issuer and, on the assumption that this Agreement creates valid and binding obligations of the parties hereto under New York law, Scottish law will not prevent any provision of this Agreement from being a valid and binding obligation of the Scottish Issuer subject to all limitations resulting from bankruptcy, insolvency, liquidation, receivership, administration and reorganization of the Scottish Issuer and court schemes, moratoria and similar laws of general application affecting the enforcement of creditors’ rights applicable to the Scottish Issuer;

 

13

(v) the execution and delivery by the Scottish Issuer of, and the performance by the Scottish Issuer of its obligations under, this Agreement, the applicable Securities and the applicable Indenture will not contravene any provision of Scottish law or the Memorandum and Articles of Association of the Scottish Issuer or any agreement or other instrument binding upon the Scottish Issuer or any of its subsidiaries that, in each case, is material to the Scottish Issuer or any of its subsidiaries, taken as a whole, or any material judgment, order or decree of any governmental body, agency or court having jurisdiction over the Scottish Issuer or any such subsidiary;

(vi) there are no required authorizations, approvals or consents of, or registration or filing with, any governmental or regulatory authority of or with the United Kingdom required in connection with the execution, delivery and performance of the applicable Securities by the Scottish Issuer or of the applicable Indenture by the Scottish Issuer;

(vii) the choice of law of the State of New York to govern the applicable Indenture, this Agreement and the applicable Securities is competent in terms of Scottish law and will be recognized and given effect to by the courts in Scotland; the validity and binding nature of the obligations contained in the applicable Indenture, this Agreement and the applicable Securities are governed by New York law;

(viii) a judgment duly obtained in the courts of New York or Federal courts of the United States of America sitting in New York in respect of the applicable Indenture, this Agreement or the applicable Securities will be enforceable in Scotland provided that such judgment:

 

(A)

is based on the exercise of personal jurisdiction by the court issuing the judgment;

 

(B)

is for a debt or an ascertained sum of money;

 

(C)

is final and conclusive;

 

(D)

is not inconsistent with a decree of a Scottish court in respect of the same matter;

 

(E)

is sought to be enforced by properly instituted and served proceedings within five years of the date of such judgment; and is not challengeable on the grounds of:

 

(1)

absence of jurisdiction;

 

(2)

fraud;

 

(3)

public policy;

 

14

(4)

natural justice;

 

(5)

being a fine or penalty; or

 

(6)

res judicata;

(ix) the submission to the non-exclusive jurisdiction of the New York Courts contained in this Agreement and the applicable Indenture is valid under Scottish law, and the Scottish Issuer is not prevented by its Memorandum and Articles of Association or any overriding principles of Scottish law from agreeing to waive any objection, pursuant to this Agreement or the applicable Indenture, to the venue of proceedings in the New York Courts, and such waiver is valid and binding under the laws of Scotland;

(x) service of process effected in the manner set forth in Section XI of this Agreement and Section 115 of the Indenture, assuming its validity and effectiveness under New York law, will be effective, insofar as the laws of Scotland are concerned, to confer valid jurisdiction over the Scottish Issuer; and

(xi) the Scottish Issuer has the power to submit, and has taken all necessary corporate action to submit, to the jurisdiction of any New York Court, and to appoint Diageo North America, Inc. as its authorized agent for the purposes and to the extent described in Section XI of this Agreement and to appoint CT Corporation as its authorized agent for the purposes and to the extent described in Section 115 of the applicable Indenture.

In rendering such opinion, such counsel may state that they do not express any opinion concerning any law other than the laws operative for the time being in Scotland and that their opinion is based on the laws of Scotland in force on the date thereof and is addressed to the Underwriters solely for their own benefit in relation to the offering of the applicable Securities and, except with their prior written consent, is not to be transmitted or disclosed to or used or relied upon by any other person or used or relied upon by the Underwriters or other addresses thereof for any other purpose.

Such opinion may also state that nothing therein is to be taken as indicating that the remedy of a decree of specific implement or the grant of the prayer of a petition for interdict would be available in a Scottish court in respect of the obligations arising under the applicable Indenture, the Guarantee or this Agreement in that such remedies are available only at the discretion of the court and are not usually granted where damages would be an adequate remedy. Also in giving such opinion, such counsel may rely upon the opinion or opinions of counsel named in paragraph (e) of this Section V as to matters of New York and United States federal law.

(h) You shall have received on the Closing Date an opinion of Davis Polk & Wardwell London LLP, counsel for the Underwriters, dated the Closing Date, covering certain of the matters referred to in subparagraph (ii), (iii), (iv) and (v) and the last paragraph of clause (e) of this Section V.

(i) You shall have received on the date of the applicable Pricing Agreement a letter dated such date and also on the Closing Date a letter dated the Closing Date, in each case in form and substance reasonably satisfactory to you, from the independent registered public accounting firm that has certified the financial statements of the Guarantor and their subsidiaries included in the Registration Statement, the Prospectus and, if applicable, the Pricing Disclosure Package containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Prospectus and the Pricing Disclosure Package.

 

15

(j) With respect to the Securities issued by the Scottish Issuer, the Scottish Issuer shall have caused to be prepared and submitted an application to the UK Financial Conduct Authority (the “FCA”) for the Securities to be listed on the official list of the FCA.

VI.

In further consideration of the agreements of the Underwriters herein contained, the Issuers and the Guarantor jointly covenant as follows:

(a) To furnish you, without charge, three signed copies of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto, but including documents incorporated by reference therein) and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.

(b) During the period mentioned in paragraph (c) below, before amending or supplementing the Registration Statement, the Prospectus or the Pricing Disclosure Package, to furnish you a copy of each such proposed amendment or supplement, and not to file any such proposed amendment or supplement to which you reasonably object.

(c) If, during such period after the first date of the public offering of the applicable Securities as, in the opinion of your counsel, the Prospectus or the Pricing Disclosure Package is required by applicable U.S. law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus or the Pricing Disclosure Package in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) or the Pricing Disclosure Package is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus or the Pricing Disclosure Package to comply with applicable U.S. law, forthwith to prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to each applicable Issuer and the Guarantor) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus or the Pricing Disclosure Package, as applicable, so that the statements in the Prospectus or the Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) or the Pricing Disclosure Package is delivered to a purchaser, be misleading or so that the Prospectus or the Pricing Disclosure Package, as applicable, as amended or supplemented, will comply with applicable U.S. law; provided, however, that in case any Underwriter or dealer is required to deliver a Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) under the Securities Act in connection with the offer or sale of Securities at any time more than nine months after the Closing Date, the cost of such preparation and furnishing of such amended or supplemented Prospectus shall be borne by the Underwriter of such Securities.

 

16

(d) If required by Rule 430B(h) under the Securities Act, to prepare a form of prospectus in a form to which you do not reasonably object and to file such form of prospectus pursuant to Rule 424(b) under the Securities Act not later than may be required by such Rule and to make no further amendment or supplement to such form of prospectus which shall be disapproved by you promptly after reasonable notice thereof.

(e) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement any of the Securities remain unsold by the Underwriters, to file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities in a form satisfactory to you. If at the Renewal Deadline an applicable Issuer or the Guarantor is no longer eligible to file an automatic shelf registration statement, it will, if it has not already done so, file a new shelf registration statement relating to the Securities in a form satisfactory to you and will use reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline, and it will take all other action necessary to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References in this Agreement to the Registration Statement shall include any such new automatic shelf registration statement or any such new shelf registration statement, as the case may be.

(f) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request and to pay all expenses (including reasonable fees and disbursements of counsel) in connection with such qualification.

(g) To make generally available to the Guarantor’s security holders as soon as practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.

(h) With respect to the Securities of the Scottish Issuer, to use their best efforts to list, subject to notice of issuance, the Securities on London Stock Exchange or another recognized stock exchange. Solely for the purposes of this provision references to “list” shall mean admitting the Securities to trading on a recognized stock exchange and including them in the official UK list or officially listing them in a qualifying country outside the UK in accordance with provisions corresponding to those generally applicable in European Economic Area States.

(i) During the period beginning from the date of the applicable Pricing Agreement and continuing to and including the earlier of (i) the termination of trading restrictions on the Securities, as notified promptly to each applicable Issuer and the Guarantor by you, and (ii) the Closing Date, not to offer, sell, contract to sell or otherwise dispose of in the United States any debt securities or warrants to purchase debt securities of such Issuer or the Guarantor which mature more than one year after the Closing Date, and which are substantially similar to the Securities, without your prior written consent, such consent not to be unreasonably withheld.

(j) You shall have received on the Closing Date such appropriate further information, certificates and documents as the applicable Issuer and the Underwriters shall have agreed in writing.

 

17

VII.

(a) Each applicable Issuer agrees, if requested by you prior to the Applicable Time, to prepare a final term sheet containing solely a description of the Securities, in a form approved by you, and to file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such Rule.

(b) Each Underwriter represents that other than any free writing prospectus (i) which contains only information describing the preliminary terms of the Securities or the offering (or, without limitation, information concerning comparable bond prices) or (ii) which contains only information that (A) describes the final terms of the Securities or their offering and (B) is included in the final term sheet described in paragraph VII(a) above, it has not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act without the prior written consent of each applicable Issuer and the Guarantor and that Schedule III to the applicable Pricing Agreement is a complete list of any free writing prospectus for which the Underwriters have received such consent.

(c) Each applicable Issuer and the Guarantor represents and agrees that, other than as required under paragraph (a) above, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives and that Schedule III to the applicable Pricing Agreement is a complete list of any free writing prospectus for which each applicable Issuer or the Guarantor has received such consent.

(d) Each applicable Issuer has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending.

(e) Each applicable Issuer agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the applicable Issuer or the Guarantor will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; except that the representations and warranties set forth in this paragraph VII(e) do not apply to statements or omissions in an Issuer Free Writing Prospectus based upon information concerning any Underwriter furnished to the Issuers or the Guarantor in writing by such Underwriter through you expressly for use therein.

VIII.

 

18

Each applicable Issuer and the Guarantor jointly and severally agree to indemnify and hold harmless each Underwriter, its directors, officers and affiliates and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including without limitation the legal fees and other expenses incurred in connection with any suit, action or proceeding on any claim asserted) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus (as amended or supplemented if the applicable Issuer or the Guarantor shall have furnished any amendments or supplements thereto), any Issuer Free Writing Prospectus or any “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to the Underwriters furnished to an Issuer or the Guarantor in writing by any Underwriter through you expressly for use therein.

Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the Issuers and the Guarantor, their respective directors, their respective officers who sign the Registration Statement and each person, if any, who controls each of the Issuers or the Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Issuers and the Guarantor to each Underwriter, but, with respect to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus (as amended or supplemented if the applicable Issuer or the Guarantor shall have furnished any amendments or supplements thereto), any Issuer Free Writing Prospectus or any “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, only with reference to information relating to such Underwriter furnished to the Issuers or the Guarantor in writing by such Underwriter through you expressly for use in such document.

In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (hereinafter called the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (hereinafter called the “indemnifying party”) in writing (or by email and confirmed in writing) but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement, and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives named in the applicable Pricing Agreement in the case of parties indemnified pursuant to the second preceding paragraph and by the applicable Issuer or Issuers and the Guarantor in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there shall be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.

 

19

Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the third sentence of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceedings.

If the indemnification provided for in the first or second paragraph of this Article VIII is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the applicable Issuer and the Guarantor, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the applicable Issuer and the Guarantor, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the applicable Issuer and the Guarantor, on the one hand, and of the Underwriters, on the other hand, shall be deemed to be in the same respective proportions as the net proceeds from the offering (before deducting expenses) received by the applicable Issuer and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the applicable Prospectus Supplement, bear to the aggregate public offering price of the Securities. The relative fault of the applicable Issuer and the Guarantor, on the one hand, and of the Underwriters, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such Issuer and the Guarantor, on the one hand, or by the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

Each applicable Issuer, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Article VIII were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method or allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VIII, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.

 

20

No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ respective obligations to contribute pursuant to this Article VIII are several in proportion to the respective principal amounts of Securities purchased by each of such Underwriters and not joint. The remedies provided for in this Article VIII are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

The indemnity and contribution agreements contained in this Article VIII and the representations and warranties of the Issuers and the Guarantor contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of any of the Issuers, the Guarantor, their respective officers or directors or any other person controlling the Issuers or the Guarantor and (iii) acceptance of and payment for any of the Securities.

IX.

Any Pricing Agreement shall be subject to termination in your discretion, by notice given to each applicable Issuer and the Guarantor, if (a) after the execution and delivery of such Pricing Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the Financial Industry Regulatory Authority, the Chicago Board Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the London Stock Exchange, (ii) trading of any securities of an applicable Issuer or the Guarantor shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in your reasonable judgment, is material and adverse and (b) in the case of any of the events specified in clauses (a) (i) through (iv), such event singly or together with any other such event makes it, in your reasonable judgment, after consultation with each applicable Issuer and the Guarantor, impracticable to market the Securities on the terms and in the manner contemplated in the Pricing Prospectus and Prospectus.

X.

This Agreement shall become effective upon the later of (x) execution and delivery hereof by the parties hereto and (y) release of notification of the effectiveness of the Registration Statement by the Commission.

If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Securities that it or they have agreed to purchase hereunder and under the applicable Pricing Agreement on such date, and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Securities set forth opposite their respective names in Schedule I bears to the principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Securities that any Underwriter has agreed to purchase pursuant to the applicable Pricing Agreement be increased pursuant to this Article X by an amount in excess of one-ninth of such principal amount of Securities without the written consent of such Underwriter.

 

21

If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Securities which it or they have agreed to purchase under the applicable Pricing Agreement on such date, and the aggregate principal amount of Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Securities to be purchased on such date, and arrangements satisfactory to you, each applicable Issuer and the Guarantor for the purchase of such Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter, any Issuer or the Guarantor. In any such case either you, an applicable Issuer or the Guarantor shall have the right to postpone the Closing Date but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, the Prospectus, or any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

If this Agreement or a Pricing Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of an Issuer or the Guarantor to comply with the terms or to fulfill any of the conditions of this Agreement or such Pricing Agreement, or if for any reason an Issuer or the Guarantor shall be unable to perform their respective obligations under this Agreement or such Pricing Agreement, such Issuer or the Guarantor will reimburse the Underwriters or such Underwriters as have so terminated this Agreement or such Pricing Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the reasonable fees and disbursements of their counsel) reasonably and properly incurred by such Underwriters in connection with this Agreement or such Pricing Agreement or the offering contemplated hereunder or thereunder.

XI.

This Agreement shall be governed by and construed in accordance with the laws of the State of New York. The Scottish Issuer and the Guarantor have appointed Diageo North America, Inc. as its authorized agent (the “Authorized Agent”) upon which process may be served in any action based on this Agreement that may be instituted in any state or federal court in the City, County and State of New York by any Underwriter or by any person controlling any Underwriter, and expressly accepts the jurisdiction of any such court in respect of such action. Such appointment shall be irrevocable for a period of three years from and after the Closing Date unless and until a successor Authorized Agent shall be appointed and such successor shall accept such appointment for the remainder of such three-year period. Each of the Scottish Issuer and the Guarantor represents to each of the Underwriters that it has notified the Authorized Agent of such designation and appointment and that Authorized Agent has accepted the same in writing. The Scottish Issuer and the Guarantor will take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment or appointments in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Scottish Issuer or the Guarantor (mailed or delivered as aforesaid) shall be deemed, in every respect, effective service of process upon the Scottish Issuer or the Guarantor. Notwithstanding the foregoing, any action based on this Agreement may be instituted by any Underwriter against the Scottish Issuer or the Guarantor in any competent court in Scotland or England and Wales. The Scottish Issuer, the Guarantor and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

22

XII.

In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly or alone. All statements, requests, notices and agreements hereunder shall be in writing and, if to the Underwriters shall be delivered or sent by email, or in writing delivered by hand, or by telephone (to be promptly confirmed by email) to you as the Representatives to the address specified in the applicable Pricing Agreement; and if to the applicable Issuer or Issuers or the Guarantor shall be delivered or sent by email, or in writing delivered by hand, or by telephone (to be promptly confirmed by email) to the address of such Issuer or Issuers or the Guarantor, as the case may be, set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section VIII hereof shall be delivered or sent by email, or in writing delivered by hand, or by telephone (to be promptly confirmed by email) to such Underwriter at its address set forth in its Underwriters’ Questionnaire, which address will be supplied to each applicable Issuer and the Guarantor by you upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Issuers and the Guarantor and, to the extent provided in Section VIII hereof, the officers and directors of the Issuers and the Guarantor and each person who controls an Issuer, the Guarantor or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have the right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. Time shall be of the essence of this Agreement.

In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Issuers and the Guarantor, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

Solely for the purposes of the requirements of Article 9(8) of the Product Governance Rules under EU Delegated Directive 2017/593 (the “MiFID II Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the MiFID II Product Governance Rules:

(a) each Underwriter identified as a MiFID II manufacturer in the applicable Pricing Agreement (each an “EU Manufacturer” and together the “EU Manufacturers”) acknowledges to each other EU Manufacturer that it understands the responsibilities conferred upon it under the MiFID II Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the applicable Pricing Agreement in connection with the Securities; and

(b) each of the applicable Issuer and the Guarantor notes the application of the MiFID II Product Governance Rules and acknowledges the target market and distribution channels identified as applying to the Securities by the EU Manufacturers and the related information set out in the applicable Pricing Agreement in connection with the Securities.

 

23

Solely for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules:

(a) each Underwriter identified as a MiFIR manufacturer in the applicable Pricing Agreement (each a “UK Manufacturer” and together the “UK Manufacturers”) acknowledges to each other UK Manufacturer that it understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the applicable Pricing Agreement in connection with the Securities; and

(b) each of the applicable Issuer and the Guarantor notes the application of the UK MiFIR Product Governance Rules and acknowledges the target market and distribution channels identified as applying to the Securities by the UK Manufacturers and the related information set out in the applicable Pricing Agreement in connection with the Securities.

Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understandings between any Underwriter and the applicable Issuer or the Guarantor, each of the applicable Issuer and the Guarantor accepts and agrees that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by:

(a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the relevant Underwriter to the applicable Issuer under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:

(i) the reduction of all, or a portion of the BRRD Liability or outstanding amounts due thereon;

(ii) the conversion of all, or a portion of, the BRRD Liability into shares, other securities or other obligations of the Underwriters or another person (and the issue to or conferral on the applicable Issuer of such shares, securities or obligations);

(iii) the cancellation of the BRRD Liability;

(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;

(b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of the Bail-In Powers by the Relevant Resolution Authority.

For the purpose of the foregoing paragraph, “Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time; “Bail-in Powers” means any Write Down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation; “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms; “BRRD Liability” has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the applicable Bail-in Legislation; “EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/ (or any successor webpage); and “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relations to the relevant Underwriter.

 

24

Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between any Underwriter and the applicable Issuer or the Guarantor, each of the applicable Issuer and the Guarantor acknowledges and accepts that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by:

(a) the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of any Underwriter to the applicable Issuer and the Guarantor under this agreement, that (without limitation) may include and result in any of the following, or some combination thereof:

(i) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;

(ii) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the relevant Underwriter or another person, and the issue to or conferral on the applicable Issuer or the Guarantor of such shares, securities or obligations;

(iii) the cancellation of the UK Bail-in Liability;

(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;

(b) the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority.

“UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).

“UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.

“UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.

 

25

Where a resolution measure is taken in relation to any BRRD Undertaking, each other party to this Agreement:

(a) acknowledges and accepts that this Agreement may be subject to the exercise of BRRD Stay Powers;

(b) agrees to be bound by the application or exercise of any such BRRD Stay Powers; and

(c) confirms that this paragraph represents the entire agreement of the parties with respect to the potential impact of BRRD Stay Powers in relation to this Agreement, to the exclusion of any other agreement, arrangement or understanding between parties.

In accordance with Article 68 of the BRRD and any relevant implementing measures in any EEA member state, each other party further acknowledges and agrees that the application or exercise of any such BRRD Stay Powers shall not, per se, be deemed to be an enforcement event within the meaning of Directive 2002/47/EC or as insolvency proceedings within the meaning of Directive 98/26/EC and that each other party shall not be entitled to take any of the steps outlined under Article 68(3) of the BRRD and any relevant implementing measures in any EEA member state against the relevant BRRD Undertaking.

For the purpose of the foregoing paragraphs, “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended; “BRRD Stay Powers” means the powers of a relevant resolution authority to suspend or restrict rights and obligations under: (a) Article 33a (Power to suspend payment or delivery obligations); (b) Article 69 (Power to suspend payment or delivery obligations); (c) Article 70 (Power to restrict the enforcement of any security interest); and (d) Article 71 (Power to temporarily suspend any termination right), of the BRRD and any relevant implementing measures in any EEA member state; and “BRRD Undertaking” means an entity within the scope of Article 71a of Directive 2014/59/EU and any relevant implementing measures in any EEA member state.

In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

In the event that any Underwriter that is a Covered Entity or a Covered Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

For the purpose of this Section, “Covered Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b), or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R.

 

26

§§ 252.81, 47.2 or 382.1, as applicable; and “U.S. Special Resolution Regime” means each of (i) the U.S. Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

This Agreement may be signed in two or more counterparts, each of which shall be an original, and all of which together shall constitute one instrument. Delivery of this Agreement by one party to the other may be made by electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

27

 

[Signature Page to Underwriting Agreement]

 

[Signature Page to Underwriting Agreement]

Accepted as of the date hereof:
BofA SECURITIES, INC.
By:		/s/ Laurie Campbell
Name:		Laurie Campbell
Title:		Managing Director
DEUTSCHE BANK SECURITIES INC.
By:		/s/ Timothy Azoia				By:		/s/ John Han
Name:		Timothy Azoia				Name:		John Han
Title:		Managing Director				Title:		Managing Director
RBC CAPITAL MARKETS, LLC
By:		/s/ Scott G. Primrose
Name:		Scott G. Primrose
Title:		Authorized Signatory
STANDARD CHARTERED BANK
By:		/s/ Patrick Dupont-Liot
Name:		Patrick Dupont-Liot
Title:		Managing Director, Debt Capital Markets
BARCLAYS CAPITAL INC.
By:		/s/ Meghan Maher
Name:		Meghan Maher
Title:		Managing Director
BNP PARIBAS SECURITIES CORP.
By:		/s/ Simon Mayes
Name:		Simon Mayes
Title:		Managing Director

 

GOLDMAN SACHS & Co. LLC
By:		/s/ Adam T. Greene
Name:		Adam T. Greene
Title:		Managing Director

 

[Signature Page to Underwriting Agreement]

ANNEX I

[Form of Pricing Agreement]

To the Representatives of the

Several Underwriters named

in Schedule I hereto

___________, __

Ladies and Gentlemen:

[Diageo Capital plc, a public limited company incorporated under the laws of Scotland][Diageo Investment Corporation, a Delaware corporation] (the “Issuer”), and Diageo plc, a public limited company organized under the laws of England and Wales (the “Guarantor”), propose, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated    , 20 (the “Underwriting Agreement”), a copy of which is attached hereto, to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the “Designated Securities”). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Prospectus in Section I of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section XII of the Underwriting Agreement and the address of the Representatives referred to in such Section XII are set forth at the end of Schedule II hereto.

 

Ann-I-1

A supplement to the Prospectus relating to the Designated Securities in the form heretofore delivered to you is now proposed to be filed with the Commission.

The Applicable Time for purposes of this Pricing Agreement is : .m. New York time. Each “free writing prospectus” as defined in Rule 405 under the Securities Act for which each party hereto has received consent to use in accordance with Article VII of the Underwriting Agreement is listed in Schedule III hereto.

Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Issuer agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Issuer, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.

If the foregoing is in accordance with your understanding, please return to us a signed counterpart hereto, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters, the Issuer and the Guarantor. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Issuer and the Guarantor for examination upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof.

 

[Diageo Capital plc] [Diageo Investment Corporation]
By:
		Name:
		Title:
By:
		Name:
		Title:

Accepted as of the date hereof:   BofA SECURITIES, INC.
By:
Name:
Title:

 

DEUTSCHE BANK SECURITIES INC.
By:						By:
Name:						Name:
Title:						Title:

 

RBC CAPITAL MARKETS, LLC
By:
Name:
Title:

 

STANDARD CHARTERED BANK
By:
Name:
Title:

 

BARCLAYS CAPITAL INC.
By:
Name:
Title:

 

BNP PARIBAS SECURITIES CORP.
By:
Name:
Title:

GOLDMAN SACHS & CO. LLC
By:
Name:
Title:

SCHEDULE I

 

Underwriter		Principal Amount of Designated Securities to be Purchased
BofA Securities, Inc.		$     [•]
Deutsche Bank Securities Inc.		$     [•]
RBC Capital Markets, LLC		$     [•]
Standard Chartered Bank		$     [•]
Barclays Capital Inc.		$     [•]
BNP Paribas Securities Corp.		$     [•]
Goldman Sachs & Co. LLC		$     [•]
Total		$     [•]

 

Sch-I-1

SCHEDULE II

Issuer:

[Diageo Capital plc]

[Diageo Investment Corporation]

Title of Designated Securities:

[ %] [Floating Rate]

[Zero Coupon] [Notes]

[Debentures] due

Aggregate principal amount:

[$]

Price to Public:

% of the principal amount of the Designated Securities, plus accrued interest, if any, from to    [and accrued amortization, if any, from     to     ]

Purchase Price by Underwriters:

% of the principal amount of the Designated Securities, plus accrued interest, if any, from to    [and accrued amortization, if any, from     to     ]

Specified funds for payment of purchase price:

[  ] funds

Method of payment:

[Wire transfer to account  ]

Indenture:

[Indenture dated as of August 3, 1998, among Diageo Capital plc, the Guarantor and The Bank of New York Mellon, as Trustee (as successor in interest to Citibank, N.A. by virtue of the Agreement of Resignation, Appointment and Acceptance, dated October 16, 2007, by and among the Guarantor, the Issuer, the Dutch Issuer, the U.S. Issuer, The Bank of New York and Citibank, N.A.)]

[Indenture dated as of June 1, 1999, among Diageo Investment Corporation, the Guarantor and The Bank of New York Mellon, as Trustee (as successor in interest to Citibank, N.A. by virtue of the Agreement of Resignation, Appointment and Acceptance, dated October 16, 2007, by and among the Guarantor, the Issuer, the Dutch Issuer, the U.S. Issuer, The Bank of New York and Citibank, N.A.)]

 

Sch-II-1

Maturity:

    , 20

Interest Rate:

[ %] [Zero Coupon] [See Floating Rate Provisions]

Interest Payment Dates:

[months and dates, commencing  ,]

Redemption Provisions:

[No provisions for redemption]

[The Designated Securities may be redeemed, otherwise than through the sinking fund, in whole or in part at the option of the Issuer, in the amount of [$]    or an integral multiple thereof,

[on or after    ,    at the following redemption prices (expressed in percentages of principal amount). If [redeemed on or before    ,    %, and if] redeemed during the 12- month period beginning    ,

 

		Year				Redemption Price

and thereafter at 100% of their principal amount, together in each case with accrued interest to the redemption date.]

[on any interest payment date falling in or after    ,    , at the election of the Issuer, at a redemption price equal to the principal amount thereof, plus accrued interest to the date of redemption.]

[The Securities are redeemable at the option of the Issuer or the Guarantor upon certain changes in United Kingdom [or Scottish] tax law.]

[Other possible redemption provisions, such as mandatory redemption upon occurrence of certain events or redemption for other changes in tax law]

[Restriction on refunding]

Denominations:

[Book-entry interests in the notes will be issued in minimum denominations of $     and in integral multiples of $       in excess thereof.]

Day Count Convention:

[Actual][30/360][Following][Unadjusted]

CUSIP / ISIN:

Sinking Fund Provisions:

[No sinking fund provisions]

 

Sch-II-2

[The Designated Securities are entitled to the benefit of a sinking fund to retire [$]    principal amount of Designated Securities on    in each of the years    through    at 100% of their principal amount plus accrued interest][, together with [cumulative] [noncumulative] redemptions at the option of the Issuer to retire an additional [$]    principal amount of Designated Securities in the years    through    at 100% of their principal amount plus accrued interest].

Extendable provisions:

[Securities are repayable on    , [insert date and years], at the option of the holder, at their principal amount with accrued interest. Initial annual interest rate will be    %, and thereafter annual interest rate will be adjusted on    ,    and    to a rate not less than % of the effective annual interest rate on U.S. Treasury obligations with    -year maturities as of the [insert date 15 days prior to maturity date] prior to such [insert maturity date].]

[No extendable provisions.]

[If Securities are Floating Rate Debt Securities, insert—

Floating rate provisions:

Initial annual interest rate will be % through    and thereafter will be adjusted [monthly] [on each    ,    ,    and    ] [to an annual rate of % above the average rate for    -year [month] [securities] [certificates of deposit] issued by and    [insert names of banks].] [and the annual interest rate [thereafter] [from through    ] will be the interest yield equivalent of the weekly average per annum market discount rate for    -month Treasury bills plus % of Interest Differential (the excess, if any, of (i) then current weekly average per annum secondary market yield for    -month certificates of deposit over (ii) then current interest yield equivalent of the weekly average per annum market discount rate for    -month Treasury bills); [from    and thereafter the rate will be the then current interest yield equivalent plus    % of Interest Differential].]

Defeasance provisions:

Overallotment Option:

Time of Delivery:

Closing Location:

Names and Addresses of Representatives:

Designated Representatives:

BofA Securities, Inc.

One Bryant Park

New York, New York 10036

United States of America

Deutsche Bank Securities Inc.

1 Columbus Circle

New York, NY 10019

United States of America

 

Sch-II-3

RBC Capital Markets, LLC

Brookfield Place

200 Vesey Street, 8th Floor

New York, NY 10281

United States of America

Standard Chartered Bank

One Basinghall Avenue

London EC2V 5DD

United Kingdom

Barclays Capital Inc.

745 Seventh Avenue

New York, NY 10019

United States of America

BNP Paribas Securities Corp.

787 Seventh Avenue

New York, NY 10019

United States of America

Goldman Sachs & Co. LLC

200 West Street

New York, NY 10282

United States of America

Other Terms:

UK MiFIR/MiFID II professionals/ECPs-only/No PRIIPs or UK PRIIPS key information document (“KID”) – Standard Chartered Bank is a manufacturer under the UK MiFIR Product Governance Rules. No PRIIPs or UK PRIIPS KID has been prepared as the Designated Securities are not available to retail investors in the European Economic Area or the United Kingdom.

Any offer of the Designated Securities, each announcement thereof and any document in which an offer is made or announced will comply with the laws and regulations of any State where persons to whom the offer is made are resident.

As described in the Prospectus.

 

Sch-II-4

SCHEDULE III

 

(a)	Issuer Free Writing Prospectuses:

[Final term sheet prepared in accordance with Section VII(a) of the Underwriting Agreement]

 

(b)	Underwriter Free Writing Prospectuses:

 

Sch-III-1

Exhibit 1.2

Execution Version

Pricing Agreement

To the Representatives of the

Several Underwriters named

in Schedule I hereto

October 2, 2023

Ladies and Gentlemen:

Diageo Capital plc, a public limited company incorporated under the laws of Scotland (the “Issuer”), and Diageo plc, a public limited company organized under the laws of England and Wales (the “Guarantor”), propose, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated October 2, 2023 (the “Underwriting Agreement”), a copy of which is attached hereto, to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the “Designated Securities”). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Prospectus in Section I of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section XII of the Underwriting Agreement and the address of the Representatives referred to in such Section XII are set forth at the end of Schedule II hereto.

A supplement to the Prospectus relating to the Designated Securities in the form heretofore delivered to you is now proposed to be filed with the Commission.

The Applicable Time for purposes of this Pricing Agreement is 3:40 p.m. New York time. Each “free writing prospectus” as defined in Rule 405 under the Securities Act for which each party hereto has received consent to use in accordance with Article VII of the Underwriting Agreement is listed in Schedule III hereto.

Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Issuer agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Issuer, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.

If the foregoing is in accordance with your understanding, please return to us a signed counterpart hereto, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters, the Issuer and the Guarantor. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Issuer and the Guarantor for examination upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof.

 

2

[Signature Page to Pricing Agreement]

Diageo Capital plc
By:		/s/ Kara Major
		Name: Kara Major
		Title: Director

[Signature Page to Pricing Agreement]

Accepted as of the date hereof:

 

BofA SECURITIES, INC.
By:		/s/ Laurie Campbell
Name:		Laurie Campbell
Title:		Managing Director

 

DEUTSCHE BANK SECURITIES INC.
By:		/s/ Timothy Azoia				By:		/s/ John Han
Name:		Timothy Azoia				Name:		John Han
Title:		Managing Director				Title:		Managing Director

 

RBC CAPITAL MARKETS, LLC
By:		/s/ Scott G. Primrose
Name:		Scott G. Primrose
Title:		Authorized Signatory
STANDARD CHARTERED BANK
By:		/s/ Patrick Dupont-Liot
Name:		Patrick Dupont-Liot
Title:		Managing Director, Debt Capital Markets
BARCLAYS CAPITAL INC.
By:		/s/ Meghan Maher
Name:		Meghan Maher
Title:		Managing Director
BNP PARIBAS SECURITIES CORP.
By:		/s/ Simon Mayes
Name:		Simon Mayes
Title:		Managing Director

 

GOLDMAN SACHS & Co. LLC
By:		/s/ Adam T. Greene
Name:		Adam T. Greene
Title:		Managing Director

[Signature Page to Pricing Agreement]

Execution Version

SCHEDULE I

 

Underwriter		Principal Amount of 2026 Fixed Rate Notes to be Purchased				Principal Amount of 2033 Fixed Rate Notes to be Purchased
BofA Securities, Inc.		$	120,000,000			$	135,000,000
Deutsche Bank Securities Inc.		$	120,000,000			$	135,000,000
RBC Capital Markets, LLC		$	120,000,000			$	135,000,000
Standard Chartered Bank		$	120,000,000			$	135,000,000
Barclays Capital Inc.		$	106,667,000			$	120,000,000
BNP Paribas Securities Corp.		$	106,667,000			$	120,000,000
Goldman Sachs & Co. LLC		$	106,666,000			$	120,000,000
Total		$	800,000,000			$	900,000,000

 

Sch-I-1

Execution Version

SCHEDULE II

Issuer:

Diageo Capital plc

Title of Designated Securities:

5.375% Fixed Rate Notes due 2026 (the “2026 Notes”).

5.625% Fixed Rate Notes due 2033 (the “2033 Notes”).

Aggregate principal amount:

$800,000,000 for the 2026 Notes.

$900,000,000 for the 2033 Notes.

Price to Public:

99.729% of the principal amount of the 2026 Notes, plus accrued interest, if any, from October 5, 2023.

99.630% of the principal amount of the 2033 Notes, plus accrued interest, if any, from October 5, 2023.

Purchase Price by Underwriters:

99.579% of the principal amount of the 2026 Notes, plus accrued interest, if any, from October 5, 2023.

99.300% of the principal amount of the 2033 Notes, plus accrued interest, if any, from October 5, 2023.

Specified funds for payment of purchase price:

Immediately available funds.

Method of payment:

Wire transfers to account of Diageo Capital plc, or to such other account as may be notified by the Issuer or the Guarantor, as the case may be, to the Representatives by 5:00 P.M. (New York City time) on the business day prior to the Time of Delivery.

Indenture:

Indenture dated as of August 3, 1998, among Diageo Capital plc, the Guarantor and The Bank of New York Mellon, as Trustee (as successor in interest to Citibank, N.A. by virtue of the Agreement of Resignation, Appointment and Acceptance, dated October 16, 2007, by and among the Guarantor, the Issuer, the Dutch Issuer, the U.S. Issuer, The Bank of New York and Citibank, N.A.)

 

Sch-II-1

Maturity:

October 5, 2026 for the 2026 Notes.

October 5, 2033 for the 2033 Notes.

Interest Rate:

5.375% per annum for the 2026 Notes.

5.625% per annum for the 2033 Notes.

Interest Payment Dates:

For the 2026 Notes, semi-annually in arrear on April 5 and October 5 of each year, commencing on April 5, 2024.

For the 2033 Notes, semi-annually in arrear on April 5 and October 5 of each year, commencing on April 5, 2024.

Redemption Provisions:

Tax Redemption Provision:

As described in the Prospectus, the Designated Securities are redeemable at the option of the Issuer or the Guarantor upon certain changes in United Kingdom tax law or in the event of a requirement to pay additional amounts due to certain mergers, conveyances, transfers or leases.

Optional Redemption Provisions:

Make-Whole Call:

For (i) the 2026 notes at any time and from time to time prior to the 2026 Par Call Date (as defined below) and (ii) the 2033 notes at any time and from time to time prior to the 2033 Par Call Date (as defined below), in each case at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1) 100% of the principal amount of such notes plus accrued interest to but excluding the date of redemption and (2) (a) the sum of the present values of the remaining scheduled payments of principal and interest on such notes as if the notes to be redeemed matured, on the applicable Par Call Date (as defined below) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Prospectus), plus 10 basis points for the 2026 notes and 15 basis points for the 2033 notes less (b) interest accrued to the date of redemption, plus, in each case, accrued interest to but excluding the date of redemption.

Par Call:

For (i) the 2026 notes at any time and from time to time on or after September 5, 2026 (the date that is one month prior to the stated maturity date of the 2026 notes) (the “2026 Par Call Date”) and (ii) the 2033 notes at any time and from time to time on or after July 5, 2033 (the date that is three months prior to the stated maturity date of the 2033 notes) (the “2033 Par Call Date” and, together with the 2026 Par Call Date, each a “Par Call Date”), in each case at a redemption price equal to 100% of the principal amount of such notes plus accrued interest to but excluding the date of redemption.

 

Sch-II-2

Denominations:

Book-entry interests in the notes will be issued in minimum denominations of $200,000 and in integral multiples of $1,000 in excess thereof.

Day Count Convention:

30/360 Following, Unadjusted for the 2026 Notes.

30/360 Following, Unadjusted for the 2033 Notes.

CUSIP / ISIN:

25243Y BK4 / US25243YBK47 for the 2026 Notes.

25243Y BN8 / US25243YBN85 for the 2033 Notes.

Sinking Fund Provisions:

No sinking fund provisions

Extendable provisions:

No extendable provisions.

Defeasance provisions:

The Designated Securities are entitled to full defeasance and discharge under certain conditions.

Overallotment Option:

No overallotment option.

Time of Delivery:

October 5, 2023 (T+3).

Closing Location:

The offices of Sullivan & Cromwell LLP, 1 New Fetter Lane, London EC4A 1AN, United Kingdom.

Names and Addresses of Representatives:

Designated Representatives:

BofA Securities, Inc.

One Bryant Park

New York, New York 10036

United States of America

 

Sch-II-3

Deutsche Bank Securities Inc.

1 Columbus Circle

New York, NY 10019

United States of America

RBC Capital Markets, LLC

Brookfield Place

200 Vesey Street, 8th Floor

New York, NY 10281

United States of America

Standard Chartered Bank

One Basinghall Avenue

London EC2V 5DD

United Kingdom

Barclays Capital Inc.

745 Seventh Avenue

New York, NY 10019

United States of America

BNP Paribas Securities Corp.

787 Seventh Avenue

New York, NY 10019

United States of America

Goldman Sachs & Co. LLC

200 West Street

New York, NY 10282

United States of America

Other Terms:

UK MiFIR/MiFID II professionals/ECPs-only/No PRIIPs or UK PRIIPS key information document (“KID”) – Standard Chartered Bank is a manufacturer under the UK MiFIR Product Governance Rules. No PRIIPs or UK PRIIPS KID has been prepared as the Designated Securities are not available to retail investors in the European Economic Area or the United Kingdom.

Any offer of the Designated Securities, each announcement thereof and any document in which an offer is made or announced will comply with the laws and regulations of any State where persons to whom the offer is made are resident.

As described in the Prospectus.

 

Sch-II-4

Execution Version

SCHEDULE III

 

(a)

Issuer Free Writing Prospectuses:

Final term sheets prepared in accordance with Section VII(a) of the Underwriting Agreement

 

(b)

Underwriter Free Writing Prospectuses:

None.

 

Sch-III-1

Exhibit 4.1

EXECUTION VERSION

DIAGEO PLC AND DIAGEO CAPITAL PLC

OFFICER’S CERTIFICATE

In connection with the issuance of U.S. $800,000,000 5.375% Fixed Rate Notes due 2026 (the “2026 Notes”), and U.S. $900,000,000 5.625% Fixed Rate Notes due 2033 (the “2033 Notes” and, together with the 2026 Notes the “Securities”) by Diageo Capital plc (the “Issuer”) pursuant to the Indenture dated as of August 3, 1998 (the “Indenture”) among the Issuer, Diageo plc (the “Guarantor”) and The Bank of New York Mellon (as successor in interest to Citibank, N.A. by virtue of the Agreement of Resignation, Appointment and Acceptance dated as of October 16, 2007 among the Guarantor, the Issuer, Diageo Capital plc, Diageo Finance B.V., Citibank, N.A. and The Bank of New York) as trustee (section references herein being to the Indenture), and pursuant to the authorizations of (i) the Board of Directors of the Guarantor by Resolutions adopted on July 26, 2023 and (ii) the Board of Directors of the Issuer by Board Resolutions adopted on September 27, 2023, each of the undersigned hereby confirms that the following terms and conditions of the Securities were established in accordance with Section 301 of the Indenture:

 

Title of Securities:		5.375% Fixed Rate Notes due 2026 5.625% Fixed Rate Notes due 2033
Issue Price:		99.729% for the 2026 Notes 99.630% for the 2033 Notes
Issue Date:		October 5, 2023 for the Securities
Principal Amount of Guaranteed Notes:		U.S. $ 800,000,000 5.375% Fixed Rate Notes due 2026 U.S. $ 900,000,000 5.625% Fixed Rate Notes due 2033
Form of Securities:		The Securities will be issued in the form of one or more global notes that will be deposited with The Depository Trust Company, New York, New York (“DTC”) on the closing date. The global note will be issued to Cede & Co. as nominee for DTC, and will be executed, authenticated and delivered in substantially the form attached hereto as Exhibit A. In certain circumstances described in the Indenture, Securities may be issued in definitive form.
Maturity:		October 5, 2026 for the 2026 Notes October 5, 2033 for the 2033 Notes
Interest Rate:		5.375% per annum accruing from October 5, 2023 for the 2026 Notes.
		5.625% per annum accruing from October 5, 2023 for the 2033 Notes.

Fixed Rate Interest Payment Dates:		For the 2026 Notes and the 2033 Notes, semi-annually in arrear on every April 5 and October 5 of each year, commencing on April 5, 2024.
		If any scheduled Fixed Rate Interest Payment Date is not a Business Day, the Issuer shall pay interest on the next Business Day, but interest on that payment will not accrue during the period from and after the scheduled Fixed Rate Interest Payment Date.
Regular Record Dates:		For the Securities, the close of business on the Business Day immediately preceding each applicable interest payment date (or, if the Securities are held in definitive form, the 15th calendar day preceding each applicable interest payment date).
Business Day		For the Securities, any day, other than a Saturday or Sunday, that is not a day on which banking institutions are authorized or required by law or regulation to close in New York City or in the City of London.
Place of Payment, Paying Agent, Registration of Transfer and Exchange:		The Bank of New York Mellon, London Branch 160 Queen Victoria Street London EC4V 4LA United Kingdom Attn: Corporate Trust Administration
Notices and Demands to Issuer:		Diageo Capital plc 11 Lochside Place Edinburgh, EH12 9HA Attn: Secretary
Notices and Demands to Guarantor:		Diageo plc 16 Great Marlborough Street London W1F 7HS United Kingdom Attn: Company Secretary
Tax Redemption Provisions:		The Securities may be redeemed, in whole but not in part, at the option of the Issuer or the Guarantor, at any time in accordance with Section 1108 of the Indenture, the Prospectus and the Prospectus Supplement
Optional Redemption Provisions:		The Securities may be redeemed, in whole or in part, at the option of the Issuer or the Guarantor, (i) in the case of the 2026 notes, at any time and from time to time prior to the 2026 Par Call Date (as defined below) and (ii) in the case of the 2033 notes, at any time and from time to time prior to the 2033 Par Call Date (as defined below), in each case at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (1) 100% of the principal amount of such Securities plus accrued interest

		to but excluding the date of redemption and (2) (a) the sum of the present values of the remaining scheduled payments of principal and interest on such notes as if the notes to be redeemed matured, on the applicable Par Call Date (as defined below) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the Prospectus Supplement (as defined below)), plus 10 basis points, in the case of the 2026 notes, or 15 basis points, in the case of the 2033 notes, less (b) interest accrued to the date of redemption, plus, in each case, accrued interest to but excluding the date of redemption.
		In addition, (i) the 2026 notes may be redeemed, in whole or in part, at any time and from time to time on or after September 5, 2026 (the date that is one month prior to the stated maturity date of the 2026 notes) (the “2026 Par Call Date”) and (ii) the 2033 notes may be redeemed, in whole or in part, at any time and from time to time on or after July 5, 2033 (the date that is three months prior to the stated maturity date of the 2033 notes) (the “2033 Par Call Date” and, together with the 2026 Par Call Date, each a “Par Call Date”), in each case at a redemption price equal to 100% of the principal amount of such Securities plus accrued interest to but excluding the date of redemption.
Defeasance and Discharge of Securities (Section 403):		Applicable.
Additional Amounts:		Pursuant to Section 1004 of the Indenture, the obligations of the Issuer and the Guarantor to pay additional amounts thereunder shall be subject to the additional exceptions specified in the form of Security attached hereto as Exhibit A.
		For the avoidance of doubt, any amounts to be paid by the Issuer or the Guarantor, as the case may be, on the Securities or the Guarantees will be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (“FATCA Withholding”).

		Netiher the Issuer nor the Guarantor will be required to pay additional amounts on account of any FATCA Withholding.
		These provisions will also apply to any taxes or governmental charges imposed by any jurisdiction in which a successor to the Issuer or the Guarantor is organized.
Other Term of the Securities:		The other terms of the Securities and the Guarantees shall be substantially as set forth in the Indenture, the form of Note attached hereto as Exhibit A, the Prospectus dated February, 2023 (the “Prospectus”) relating to the Securities and the Prospectus Supplement dated October 2, 2023 (the “Prospectus Supplement”) to the Prospectus.

In connection with the aforementioned issuance, the undersigned hereby certifies to the best of his or her knowledge that:

1. He or she has read the provisions of the Indenture setting forth covenants and conditions to the Trustee’s authentication and delivery of the Securities and the Guarantees endorsed thereon by the Guarantor, and the definitions in the Indenture relating thereto.

2. He or she has examined the resolutions of the Board of Directors of the Issuer or the Guarantor, as applicable, adopted prior to the date hereof relating to the authorization, issuance, authentication and delivery of the Securities and the Guarantees, such other corporate records of the Issuer and the Guarantor, as applicable, and such other documents deemed necessary as a basis for the opinion hereinafter expressed.

3. In his or her opinion, such examination is sufficient to enable him or her to express an informed opinion as to whether the covenants and conditions referred to above have been complied with.

4. He or she is of the opinion that the covenants and conditions referred to above have been complied with.

IN WITNESS WHEREOF, each of the undersigned has hereunto signed his name.

Dated: October 5, 2023

 

[Signature Page to Officer’s Certificate Pursuant to the Indenture]

IN WITNESS WHEREOF, each of the undersigned has hereunto signed his name.

Dated: October 5, 2023

 

 

[Signature Page to Officer’s Certificate Pursuant to the Indenture]

EXHIBIT A-1

Form of 5.375% Fixed Rate Notes Due 2026

THIS SECURITY IS A GLOBAL REGISTERED SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

DIAGEO CAPITAL PLC

5.375% NOTES DUE 2026

PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,

AND INTEREST FULLY AND UNCONDITIONALLY GUARANTEED BY DIAGEO PLC

 

		$[•]
No. [•]		CUSIP No. 25243Y BK4
		ISIN No. US25243YBK47

DIAGEO CAPITAL PLC, a public limited company incorporated under the laws of Scotland (herein called the “Issuer”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [•] Dollars on October 5, 2026 and to pay interest thereon from October 5, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrear on April 5 and October 5 in each year, commencing April 5, 2024 at the rate of 5.375% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

- 2 -

Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in New York City, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Issuer payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture, as defined herein.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

- 3 -

IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed manually or in facsimile.

Dated: October 5, 2023

 

CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.

Dated: October 5, 2023

 

[Signature Page to 2026 Fixed Rate Global Note No. [•]]

(REVERSE)

This Security is one of a duly authorized issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of August 3, 1998 (herein called the “Indenture” which term shall have the meaning assigned to it in such instrument), among the Issuer, Diageo plc, a public limited company incorporated under the laws of England and Wales (herein called the “Guarantor”, which term includes any successor Person under the Indenture referred to herein), and The Bank of New York Mellon (as successor in interest to Citibank, N.A. by virtue of the Agreement of Resignation, Appointment and Acceptance dated as of October 16, 2007 among the Guarantor, the Issuer, Diageo Investment Corporation, Diageo Finance B.V., Citibank, N.A. and The Bank of New York) as Trustee (herein called the “Trustee”, which term includes any other successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

The Securities may be redeemed at the option of the Issuer or the Guarantor, in whole or in part, upon not less than 10 nor more than 60 days’ notice given as provided in the Indenture, at any time and from time to time (a) prior to September 5, 2026 (the “Par Call Date”) at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) 100% of the principal amount of such Securities plus accrued interest to but excluding the Redemption Date and (ii) (x) the sum of the present values of the remaining scheduled payments of principal and interest on such notes as if the Securities to be redeemed matured on the Par Call Date discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined herein), plus 10 basis points, with one basis point being 0.01% less (y) interest accrued to the date of redemption; or (b) at any time from time to time on or after the Par Call Date at a Redemption Price equal to 100% of the principal amount of such Securities plus, in each case, accrued interest to but excluding the Redemption Date.

The definitions of certain terms used in the paragraph above are set forth below.

“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Guarantor in accordance with the following two paragraphs.

The Treasury Rate shall be determined by the Guarantor after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”).

 

- 5 -

In determining the Treasury Rate, the Guarantor shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.

If on the third business day preceding the Redemption Date H.15 TCM is no longer published, the Guarantor shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date, and one with a maturity date following the Par Call Date, the Guarantor shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Guarantor shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places. The Guarantor’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.

The Securities may be redeemed at the option of the Issuer or the Guarantor, in whole but not in part, upon not less than 10 nor more than 60 days’ notice given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if (a) as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Issuer or the Guarantor is incorporated (or in the case of a successor Person to the Issuer or the Guarantor, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after October 5, 2023 (or, in the case of a successor Person to the Issuer or the Guarantor, the date on which such successor Person became such pursuant to the applicable provision of the Indenture) or (b) as a result of any delivery or of any requirement to deliver definitive Registered Securities (having used all reasonable efforts to avoid having to issue such definitive Registered Securities), (i) the Issuer or the Guarantor (or such successor Person) is or would be required to pay additional amounts with respect to the Securities or the Guarantees, respectively, on the next succeeding Interest Payment Date as set forth below or in the Guarantee endorsed hereon or (ii) the Guarantor or any Subsidiary of the Guarantor is or would be required to deduct or withhold tax on any payment to the Issuer to enable the Issuer to make any payment of principal or interest in respect of the Securities and, in each case, the payment of such additional amounts in the case of (i) above or such deduction or withholding in the case of (ii) above cannot be avoided by the use of any reasonable measures available to the Issuer, the Guarantor or the Subsidiary.

 

- 6 -

The Securities may also be redeemed in whole but not in part upon not less than 10 nor more than 60 days’ notice given as provided in the Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if the Person formed by a consolidation of the Issuer or the Guarantor or into which the Issuer or the Guarantor is merged or to which the Issuer or the Guarantor conveys, transfers or leases its properties and assets substantially as an entirety is required to pay a Holder additional amounts in respect of any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease.

Notice of redemption will be given by mail to Holders of Securities, not less than 10 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.

In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

If an Interest Payment Date would fall on a day that is not a Business Day, such Interest Payment Date will be the next succeeding Business Day, and no interest shall accrue during the period from and after such Interest Payment Date. If the Stated Maturity (or any redemption or repayment date) would fall on a day that is not a Business Day, such payment may be made on the next succeeding Business Day and no interest shall accrue for the period from and after such Stated Maturity or redemption or repayment date. Unless the Issuer defaults on payment of the Redemption Price, interest will cease to accrue on the Redemption Date on the Securities called for redemption. “Business Day”, as used herein, means any day, other than a Saturday or Sunday, that is not a day on which banking institutions are authorized or required by law or regulation to close in New York City or in the City of London.

The Indenture contains provisions for defeasance at any time of the entire indebtedness on this Security upon compliance by the Issuer or the Guarantor with certain conditions set forth thereon, which provisions apply to this Security.

 

- 7 -

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

If any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Issuer is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Issuer under the Securities, the Issuer will pay to the Holder of this Security, such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Issuer shall not be required to make any payment of additional amounts (i) for or on account of any such tax, assessment or governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein or (ii) for or on account of:

 

(1)

any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;

 

(2)

any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;

 

(3)

any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities;

 

(4)

any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of this Security with a request of the Issuer addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;

 

- 8 -

(5)

any withholding or deduction required to be made with respect to a Security presented for payment by or on behalf of a Holder of such Security who would have been able to avoid such withholding or deduction by presenting the relevant Security to another Paying Agent; or

 

(6)

any combination of items (1), (2), (3), (4) and (5) above;

nor shall additional amounts be paid (i) with respect to any payment in respect of any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security or (ii) in the event that the obligation to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security at such Holder’s request upon the occurrence of an Event of Default and at the time payment is made definitive Registered Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Issuer is organized, or any political subdivision or taxing authority thereof or therein.

For the avoidance of doubt, any amounts to be paid by the Issuer on the Securities will be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (“FATCA Withholding”).

Any Paying Agent shall be entitled to make a deduction or withholding from any payment which it makes under the Securities and the Indenture for or on account of (i) any present or future taxes, duties or charges if and to the extent so required by any applicable law and (ii) any FATCA Withholding tax (together, “Applicable Law”). In either case, the Paying Agent shall make any payment after a deduction or withholding has been made pursuant to Applicable Law and shall report to the relevant authorities the amount so deducted or withheld. In all cases, the Paying Agent shall have no obligation to gross up any payment made subject to any deduction or withholding pursuant to Applicable Law. In addition, amounts deducted or withheld by the Paying Agent under this paragraph will be treated as paid to the Holder of the Securities.

The Issuer will not be required to pay additional amounts on account of any FATCA Withholding.

 

- 9 -

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series to waive compliance by the Issuer or the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture, the Guarantee endorsed hereon, this Security or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal (and premium, if any) or interest on this Security on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed or to convert this Security as provided in the Indenture.

The Securities of this series are issuable only in registered form without coupons in denominations of $200,000 and in integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

- 10 -

No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Issuers, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.

The Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.

The “Regular Record Dates” for the Securities will be the close of business on the Business Day immediately preceding each applicable interest payment date.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

- 11 -

GUARANTEE

For value received, Diageo plc, a public limited company incorporated under the laws of England and Wales, having its registered office at 16 Great Marlborough Street, London W1F 7HS, England (herein called the “Guarantor”, which term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby fully and unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee on behalf of each such Holder the due and punctual payment of the principal of, premium, if any, and interest on such Security and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of Diageo Capital plc (the “Issuer”, which term includes any successor Person under such Indenture), punctually to make any such payment of principal, premium, if any, or interest or any sinking fund or analogous payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Issuer.

The Guarantor hereby further agrees, subject to the limitations and exceptions set forth below, that if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Guarantor is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Guarantor under this Guarantee, then the Guarantor will pay to the Holder of a Security such additional amounts as may be necessary in order that the net amounts paid to the Holder of such Security who, with respect to any such tax, assessment, or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Guarantor shall not be required to make any payment of additional amounts (i) for or on account of any such tax, assessment or governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein or (ii) for or on account of:

 

(1)

any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;

 

- 12 -

(2)

any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;

 

(3)

any tax, assessment, or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, premium, if any, or interest on, the Securities;

 

(4)

any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Security with a request of the Issuer or the Guarantor addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;

 

(5)

any withholding or deduction required to be made with respect to a Security presented for payment by or on behalf of a Holder of such Security who would have been able to avoid such withholding or deduction by presenting the relevant Security to another Paying Agent; or

 

(6)

any combination of items (1), (2), (3), (4) and (5) above;

nor shall additional interest be paid (i) with respect to any payment of the principal of, premium, if any, or interest on any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional interest had it been the Holder of the Security or (ii) in the event that the obligation to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security at such Holder’s request upon the occurrence of an Event of Default and at the time payment is made definitive Registered Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. The foregoing provision shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges or whatever nature of any jurisdiction in which any successor Person to the Guarantor is organized, or any political subdivision or taxing authority thereof or therein.

 

- 13 -

For the avoidance of doubt, any amounts to be paid by the Guarantor on the Guarantees will be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (“FATCA Withholding”).

Any Paying Agent shall be entitled to make a deduction or withholding from any payment which it makes under the Guarantees and the Indenture for or on account of (i) any present or future taxes, duties or charges if and to the extent so required by any applicable law and (ii) any FATCA Withholding Tax (together, “Applicable Law”). In either case, the Paying Agent shall make any payment after a deduction or withholding has been made pursuant to Applicable Law and shall report to the relevant authorities the amount so deducted or withheld. In all cases, the Paying Agent shall have no obligation to gross up any payment made subject to any deduction or withholding pursuant to Applicable Law. In addition, amounts deducted or withheld by the Paying Agent under this paragraph will be treated as paid to the Holder of the Securities.

The Guarantor will not be required to pay additional amounts on account of any FATCA Withholding.

The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute, full and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Issuer with respect thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 502 of such Indenture. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment required under such Security and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, premium, if any, and interest on such Security.

The Guarantor shall be subrogated to all rights of the Holder of such Security and the Trustee against the Issuer in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series issued under such Indenture shall have been paid in full.

 

- 14 -

No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantee of the Guarantor, which is absolute and unconditional, of the due and punctual payment of the principal of, premium, if any, and interest on, and any sinking fund or analogous payments with respect to, the Security upon which this Guarantee is endorsed.

This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security shall have been manually executed by or on behalf of the Trustee under such Indenture.

All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.

The Guarantee shall be governed by and construed in accordance with the laws of the State of New York.

 

- 15 -

Executed and dated the date on the face hereof.

 

 

 

[Signature Page to Guarantee to 2026 Fixed Rate Global Note No. [•]]

EXHIBIT A-2

Form of 5.625% Fixed Rate Notes Due 2033

THIS SECURITY IS A GLOBAL REGISTERED SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

DIAGEO CAPITAL PLC

5.625% NOTES DUE 2033

PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,

AND INTEREST FULLY AND UNCONDITIONALLY GUARANTEED BY

DIAGEO PLC

 

		$[•]

 

No. [•]		CUSIP No. 25243Y BN8
		ISIN No. US25243YBN85

DIAGEO CAPITAL PLC, a public limited company incorporated under the laws of Scotland (herein called the “Issuer”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of [•] Dollars on October 5, 2033 and to pay interest thereon from October 5, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrear on April 5 and October 5 in each year, commencing April 5, 2024 at the rate of 5.625% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

 

- 2 -

Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in New York City, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Issuer payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture, as defined herein.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

- 3 -

IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed manually or in facsimile.

 

Dated: October 5, 2023
				DIAGEO CAPITAL PLC
				By:
						Name: James Edmunds
						Title: Director

CERTIFICATE OF AUTHENTICATION

This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.

 

Dated: October 5, 2023
				THE BANK OF NEW YORK MELLON
				As Trustee
				By:
						Authorized Officer

 

 

[Signature Page to 2033 Fixed Rate Global Note No. [•]]

(REVERSE)

This Security is one of a duly authorized issue of securities of the Issuer (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of August 3, 1998 (herein called the “Indenture” which term shall have the meaning assigned to it in such instrument), among the Issuer, Diageo plc, a public limited company incorporated under the laws of England and Wales (herein called the “Guarantor”, which term includes any successor Person under the Indenture referred to herein), and The Bank of New York Mellon (as successor in interest to Citibank, N.A. by virtue of the Agreement of Resignation, Appointment and Acceptance dated as of October 16, 2007 among the Guarantor, the Issuer, Diageo Investment Corporation, Diageo Finance B.V., Citibank, N.A. and The Bank of New York) as Trustee (herein called the “Trustee”, which term includes any other successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof.

The Securities may be redeemed at the option of the Issuer or the Guarantor, in whole or in part, upon not less than 10 nor more than 60 days’ notice given as provided in the Indenture, at any time and from time to time (a) prior to July 5, 2033 (the “Par Call Date”) at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (i) (x) the sum of the present values of the remaining scheduled payments of principal and interest on such notes as if the Securities to be redeemed matured on the Par Call Date discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined herein),plus 15 basis points, with one basis point being 0.01% less (y) interest accrued to the date of redemption; or (b) at any time from time to time on or after the Par Call Date at a Redemption Price equal to 100% of the principal amount of such Securities plus, in each case, accrued interest to but excluding the Redemption Date.

The definitions of certain terms used in the paragraph above are set forth below.

“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Guarantor in accordance with the following two paragraphs.

The Treasury Rate shall be determined by the Guarantor after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities – Treasury constant maturities – Nominal” (or any successor caption or heading) (“H.15 TCM”).

 

- 5 -

In determining the Treasury Rate, the Guarantor shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.

If on the third business day preceding the Redemption Date H.15 TCM is no longer published, the Guarantor shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date, and one with a maturity date following the Par Call Date, the Guarantor shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Guarantor shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places. The Guarantor’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.

The Securities may be redeemed at the option of the Issuer or the Guarantor, in whole but not in part, upon not less than 10 nor more than 60 days’ notice given as provided in the Indenture, at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if (a) as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Issuer or the Guarantor is incorporated (or in the case of a successor Person to the Issuer or the Guarantor, of the jurisdiction in which such successor Person is organized or any political subdivision or taxing authority thereof or therein) or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction or such political subdivision or taxing authority (or such other jurisdiction or political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after October 5, 2023 (or, in the case of a successor Person to the Issuer or the Guarantor, the date on which such successor Person became such pursuant to the applicable provision of the Indenture) or (b) as a result of any delivery or of any requirement to deliver definitive Registered Securities (having used all reasonable efforts to avoid having to issue such definitive Registered Securities), (i) the Issuer or the Guarantor (or such successor Person) is or would be required to pay additional amounts with respect to the Securities or the Guarantees, respectively, on the next succeeding Interest Payment Date as set forth below or in the Guarantee endorsed hereon or (ii) the Guarantor or any Subsidiary of the Guarantor is or would be required to deduct or withhold tax on any payment to the Issuer to enable the Issuer to make any payment of principal or interest in respect of the Securities and, in each case, the payment of such additional amounts in the case of (i) above or such deduction or withholding in the case of (ii) above cannot be avoided by the use of any reasonable measures available to the Issuer, the Guarantor or the Subsidiary.

 

- 6 -

The Securities may also be redeemed in whole but not in part upon not less than 10 nor more than 60 days’ notice given as provided in the Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption if the Person formed by a consolidation of the Issuer or the Guarantor or into which the Issuer or the Guarantor is merged or to which the Issuer or the Guarantor conveys, transfers or leases its properties and assets substantially as an entirety is required to pay a Holder additional amounts in respect of any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease.

Notice of redemption will be given by mail to Holders of Securities, not less than 10 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.

In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.

If an Interest Payment Date would fall on a day that is not a Business Day, such Interest Payment Date will be the next succeeding Business Day, and no interest shall accrue during the period from and after such Interest Payment Date. If the Stated Maturity (or any redemption or repayment date) would fall on a day that is not a Business Day, such payment may be made on the next succeeding Business Day and no interest shall accrue for the period from and after such Stated Maturity or redemption or repayment date. Unless the Issuer defaults on payment of the Redemption Price, interest will cease to accrue on the Redemption Date on the Securities called for redemption. “Business Day”, as used herein, means any day, other than a Saturday or Sunday, that is not a day on which banking institutions are authorized or required by law or regulation to close in New York City or in the City of London.

The Indenture contains provisions for defeasance at any time of the entire indebtedness on this Security upon compliance by the Issuer or the Guarantor with certain conditions set forth thereon, which provisions apply to this Security.

 

- 7 -

If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.

If any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Issuer is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Issuer under the Securities, the Issuer will pay to the Holder of this Security, such additional amounts as may be necessary in order that the net amounts paid to such Holder of such Security who, with respect to any such tax, assessment or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Issuer shall not be required to make any payment of additional amounts (i) for or on account of any such tax, assessment or governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein or (ii) for or on account of:

 

(1)

any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;

 

(2)

any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;

 

(3)

any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, or any interest on, the Securities;

 

(4)

any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of this Security with a request of the Issuer addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;

 

- 8 -

(5)

any withholding or deduction required to be made with respect to a Security presented for payment by or on behalf of a Holder of such Security who would have been able to avoid such withholding or deduction by presenting the relevant Security to another Paying Agent; or

 

(6)

any combination of items (1), (2), (3), (4) and (5) above;

nor shall additional amounts be paid (i) with respect to any payment in respect of any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Security or (ii) in the event that the obligation to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security at such Holder’s request upon the occurrence of an Event of Default and at the time payment is made definitive Registered Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. The foregoing provisions shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Issuer is organized, or any political subdivision or taxing authority thereof or therein.

For the avoidance of doubt, any amounts to be paid by the Issuer on the Securities will be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (“FATCA Withholding”).

Any Paying Agent shall be entitled to make a deduction or withholding from any payment which it makes under the Securities and the Indenture for or on account of (i) any present or future taxes, duties or charges if and to the extent so required by any applicable law and (ii) any FATCA Withholding tax (together, “Applicable Law”). In either case, the Paying Agent shall make any payment after a deduction or withholding has been made pursuant to Applicable Law and shall report to the relevant authorities the amount so deducted or withheld. In all cases, the Paying Agent shall have no obligation to gross up any payment made subject to any deduction or withholding pursuant to Applicable Law. In addition, amounts deducted or withheld by the Paying Agent under this paragraph will be treated as paid to the Holder of the Securities.

The Issuer will not be required to pay additional amounts on account of any FATCA Withholding.

 

- 9 -

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series to waive compliance by the Issuer or the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture, the Guarantee endorsed hereon, this Security or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal (and premium, if any) or interest on this Security on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed or to convert this Security as provided in the Indenture.

The Securities of this series are issuable only in registered form without coupons in denominations of $200,000 and in integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

- 10 -

No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Issuers, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.

The Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.

The “Regular Record Dates” for the Securities will be the close of business on the Business Day immediately preceding each applicable interest payment date.

Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

- 11 -

GUARANTEE

For value received, Diageo plc, a public limited company incorporated under the laws of England and Wales, having its registered office at 16 Great Marlborough Street, London W1F 7HS, England (herein called the “Guarantor”, which term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby fully and unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee on behalf of each such Holder the due and punctual payment of the principal of, premium, if any, and interest on such Security and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of Diageo Capital plc (the “Issuer”, which term includes any successor Person under such Indenture), punctually to make any such payment of principal, premium, if any, or interest or any sinking fund or analogous payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Issuer.

The Guarantor hereby further agrees, subject to the limitations and exceptions set forth below, that if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Guarantor is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Guarantor under this Guarantee, then the Guarantor will pay to the Holder of a Security such additional amounts as may be necessary in order that the net amounts paid to the Holder of such Security who, with respect to any such tax, assessment, or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided, however, that the Guarantor shall not be required to make any payment of additional amounts (i) for or on account of any such tax, assessment or governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein or (ii) for or on account of:

 

(1)

any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;

 

- 12 -

(2)

any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;

 

(3)

any tax, assessment, or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, premium, if any, or interest on, the Securities;

 

(4)

any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Security with a request of the Issuer or the Guarantor addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;

 

(5)

any withholding or deduction required to be made with respect to a Security presented for payment by or on behalf of a Holder of such Security who would have been able to avoid such withholding or deduction by presenting the relevant Security to another Paying Agent; or

 

(6)

any combination of items (1), (2), (3), (4) and (5) above;

nor shall additional interest be paid (i) with respect to any payment of the principal of, premium, if any, or interest on any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional interest had it been the Holder of the Security or (ii) in the event that the obligation to pay additional amounts is the result of the issuance of definitive Registered Securities to a Holder of a Predecessor Security at such Holder’s request upon the occurrence of an Event of Default and at the time payment is made definitive Registered Securities have not been issued in exchange for the entire principal amount of the Predecessor Securities. The foregoing provision shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges or whatever nature of any jurisdiction in which any successor Person to the Guarantor is organized, or any political subdivision or taxing authority thereof or therein.

 

- 13 -

For the avoidance of doubt, any amounts to be paid by the Guarantor on the Guarantees will be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (“FATCA Withholding”).

Any Paying Agent shall be entitled to make a deduction or withholding from any payment which it makes under the Guarantees and the Indenture for or on account of (i) any present or future taxes, duties or charges if and to the extent so required by any applicable law and (ii) any FATCA Withholding Tax (together, “Applicable Law”). In either case, the Paying Agent shall make any payment after a deduction or withholding has been made pursuant to Applicable Law and shall report to the relevant authorities the amount so deducted or withheld. In all cases, the Paying Agent shall have no obligation to gross up any payment made subject to any deduction or withholding pursuant to Applicable Law. In addition, amounts deducted or withheld by the Paying Agent under this paragraph will be treated as paid to the Holder of the Securities.

The Guarantor will not be required to pay additional amounts on account of any FATCA Withholding.

The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute, full and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Issuer with respect thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 502 of such Indenture. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment required under such Security and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, premium, if any, and interest on such Security.

The Guarantor shall be subrogated to all rights of the Holder of such Security and the Trustee against the Issuer in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series issued under such Indenture shall have been paid in full.

 

- 14 -

No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantee of the Guarantor, which is absolute and unconditional, of the due and punctual payment of the principal of, premium, if any, and interest on, and any sinking fund or analogous payments with respect to, the Security upon which this Guarantee is endorsed.

This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security shall have been manually executed by or on behalf of the Trustee under such Indenture.

All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.

The Guarantee shall be governed by and construed in accordance with the laws of the State of New York.

 

- 15 -

Executed and dated the date on the face hereof.

 

 

 

[Signature Page to Guarantee to 2033 Fixed Rate Global Note No. [•]]

Exhibit 5.1

 

		One Bunhill Row London EC1Y 8YY T +44 (0)20 7600 1200 F +44 (0)20 7090 5000
		5 October 2023
Diageo Capital plc 11 Lochside Place Edinburgh EH12 9HA Scotland		Your reference   Our reference CLXP/JUXB/AXQD   Direct line +44 (0)20 7090 3884
and
Diageo plc
16 Great Marlborough Street
London W1F 7HS
United Kingdom

Dear Sirs and Mesdames

Issue by Diageo Capital plc (the “Issuer”) of (i) U.S. $800,000,000 5.375% Fixed Rate Notes due 2026 (the “2026 Notes”) and (ii) U.S. $900,000,000 5.625% Fixed Rate Notes due 2033 (the “2033 Notes”) (each, a “Security”, and, together, the “Securities”), guaranteed as to payment of principal and interest by Diageo plc (the “Guarantor”)

We have acted as English legal advisers to the Guarantor in connection with the issue of the Securities by the Issuer with a guarantee (the “Guarantee”) of the Guarantor and have taken instructions solely from the Guarantor.

This letter sets out our opinion on certain matters of English law as at today’s date and as currently applied by the English courts. We have not made any investigation of, and do not express any opinion on, any other law. This letter is to be governed by and construed in accordance with English law.

This opinion is delivered in connection with the prospectus in respect of the Securities of the Issuer dated 23 February 2023 and the related prospectus supplement in respect of the Securities dated 2 October 2023 (together, the “Prospectus”).

For the purpose of this opinion, we have examined electronic copies of the following documents:

 

SJ Cooke

JC Putnis

RA Byk

EJ Fife

RCT Jeens

CJCN Choi

CA Cooke

PJC O’Malley

Authorised and regulated

PP Chappatte

RA Sumroy

GA Miles

JP Stacey

V MacDuff

NM Pacheco

LJ Houston

SE Osprey

by the Solicitors

DL Finkler

JC Cotton

GE O’Keefe

LJ Wright

PL Mudie

CL Sanger

CW McGarel-Groves

DA Shone

Regulation Authority

SP Hall

RJ Turnill

MD Zerdin

JP Clark

DM Taylor

HE Ware

PD Wickham

S Sriram

Firm SRA number 55388

SR Galbraith

CNR Jeffs

RL Cousin

WHJ Ellison

RJ Todd

HJ Bacon

RR Hilton

HK Sumanasuriya

JAD Marks

SR Nicholls

IAM Taylor

AM Lyle-Smythe

WJ Turtle

TR Blanchard

KM Howes

SC Tysoe

DJO Schaffer

MJ Tobin

DA Ives

A Nassiri

OJ Wicker

NL Cook

CR Osborne

DR Johnson

DG Watkins

MC Lane

DE Robertson

DJO Blaikie

AJ Dustan

MJ Sandler

RA Swallow

BKP Yu

LMC Chung

TA Vickers

CVK Boney

HEB Hecht

CM Sharpe

CS Cameron

EC Brown

RJ Smith

RA Innes

F de Falco

CL Jackson

JM Slade

BJ-PF Louveaux

J Edwarde

MD’AS Corbett

CP McGaffin

SNL Hughes

OR Moir

WCW Brennand

E Michael

AD Jolly

PIR Dickson

CL Phillips

PR Linnard

S Shah

DJG Hay

RR Ogle

JS Nevin

IS Johnson

SVK Wokes

KA O’Connell

G Kamalanathan

TG Newey

HL Davies

JA Papanichola

RM Jones

NSA Bonsall

N Yeung

JE Cook

LJE Nsoatabe

 

1.

the indenture dated 3 August 1998 between the Issuer, the Guarantor and The Bank of New York Mellon (as successor in the interest to Citibank N.A. by virtue of the agreement of resignation, appointment and acceptance dated 16 October 2007 between, among others, the Issuer, the Guarantor, The Bank of New York Mellon and Citibank N.A.) (the “Indenture”), including the form of guarantees to be given by the Guarantor (the “Guarantees”);

 

2.	a copy of an extract from the minutes of a meeting of the board of directors of the Guarantor held on 14 December 2000 attached to the Deputy Secretary’s Certificate referred to in paragraph 9 below;

 

3.	a copy of an extract from the minutes of a meeting of the Standing Committee of the board of directors of the Guarantor held on 11 November 2003 attached to the Deputy Secretary’s Certificate referred to in paragraph 9 below;

 

4.	a copy of an extract from the minutes of a meeting of the board of directors of the Guarantor held on 27 July 2022 attached to the Deputy Secretary’s Certificate referred to in paragraph 9 below;

 

5.	a copy of an extract from the minutes of a meeting of the board of directors of the Guarantor held on 26 July 2023 attached to the Deputy Secretary’s Certificate referred to in paragraph 9 below;

 

6.

a copy of an email attached to the Deputy Secretary’s Certificate referred to in paragraph 9 below from (i) the Chief Financial Officer of the Guarantor dated 22 February 2023 and (ii) the Company Secretary of the Guarantor dated 22 February 2023, in each case approving the prospectus in respect of the Securities of the Issuer dated 23 February 2023;

 

7.

a copy of an email attached to the Deputy Secretary’s Certificate referred to in paragraph 9 below from (i) the Chief Financial Officer of the Guarantor dated 28 September 2023 and (ii) the Company Secretary of the Guarantor dated 28 September 2023, in each case approving the issuance of the Securities;

 

8.	a copy of the memorandum and articles of association (together with the resolutions and agreements filed at Companies House under section 30 of the Companies Act 2006 and its predecessors) of the Guarantor attached to the Deputy Secretary’s Certificate referred to in paragraph 9 below;

 

9.	a deputy company secretary’s certificate dated 5 October 2023 in respect of the Guarantor (the “Deputy Secretary’s Certificate”); and

 

10.	entries shown on the Registrar of Companies obtained by us from the Companies House database at 9.00am on 5 October 2023 of the file of the Guarantor maintained at Companies House (the “Company Searches”).

We have not been concerned with investigating or verifying the facts set out in the Prospectus.

For the purposes of this letter we have assumed:

 

Page 2/5 October 2023

 

(i)	that the Indenture and the Guarantees (collectively, the “Agreements”) in the form examined by us were duly executed and delivered by the parties thereto (other than the Guarantor);

 

(ii)

the conformity to original documents of all copy (including electronic copy) or draft documents examined by us and that the copy of the memorandum and articles of association of the Guarantor examined by us (which is attached to the Deputy Secretary’s Certificate) is complete and accurate and conforms to the original and would, if issued today, comply, as respects the articles of association, with section 36 of the Companies Act 2006 and that, in the case of any document of which we have examined or had regard to only an extract, the extract does not present a misleading view of the documents as a whole;

 

(iii)

that all signatures on the executed documents which, or copies of which, we have examined are genuine;

 

(iv)

the Agreements are valid and binding on the parties under the laws of the State of New York, United States of America (“New York law”) by which the Agreements are expressed to be governed and that the obligations under the Agreements constitute valid, binding obligations of the parties thereto under New York law (being the law by which they are expressed to be governed), enforceable in accordance with their terms in competent courts of that jurisdiction;

 

(v)	that the Securities will be duly issued, authenticated and delivered in accordance with the provisions of the Indenture;

 

(vi)	the capacity, power and authority of each of the parties (other than the Guarantor) to execute, deliver and exercise its rights and perform its obligations under the Agreements and that the Issuer has the capacity, power and authority to effect the execution, delivery and issue of the Securities;

 

(vii)

that no law of any jurisdiction outside England and Wales would prohibit or otherwise render the execution, delivery, issue or performance by any party of the terms of the Agreements illegal or ineffective and that, insofar as any obligation under any of the Agreements is performed in, or is otherwise subject to, any jurisdiction other than England and Wales, its performance will not be illegal, ineffective or prohibited by virtue of the law of that jurisdiction or contrary to public policy in that jurisdiction;

 

(viii)

that each Security will be in the form set out in Article Two of the Indenture and will be subject to the terms and conditions of the Indenture;

 

(ix)	that the terms and conditions applicable to the Securities will not be inconsistent with the Prospectus;

 

(x)

that (1) the information disclosed by the Company Searches and our GlobalX winding up search on the Central Registry of Winding-up Petitions on 5 October 2023 in relation to the Guarantor (together, the “Searches”) was then complete, up-to-date and accurate and has not since then been altered or added to; and (2) the Searches did not fail to disclose any information relevant for the purposes of this opinion;

 

Page 3/5 October 2023

 

(xi)

that (1) no proposal for a voluntary arrangement has been made, and no moratorium has been obtained, in relation to the Issuer under Part I or Part A1 of the Insolvency Act 1986 (as amended); (2) the Guarantor has not given any notice in relation to or passed any voluntary winding-up resolution; (3) no application or filing has been made or petition presented to a court, and no order has been made by a court, for the winding-up or administration of, or commencement of a moratorium in relation to, the Guarantor, and no step has been taken to strike off or dissolve the Guarantor; (4) no liquidator, administrator, monitor, nominee, supervisor, receiver, administrative receiver, trustee in bankruptcy or similar officer has been appointed in relation to the Guarantor or any of its assets or revenues, and no notice has been given or filed in relation to the appointment of such an officer; and (5) no insolvency proceedings or analogous procedures have been commenced in any jurisdiction outside England and Wales in relation to the Guarantor or any of its assets or revenues;

 

(xii)

that the minutes referred to in paragraphs 2 – 5 (inclusive) above are a true record of the proceedings described therein of duly convened, constituted and quorate meetings of the Guarantor’s board of directors and the Standing Committee thereof acting in accordance with their duties as directors in so far as relevant to this opinion letter and that the relevant meetings were duly held and that the authorisations given and resolutions passed thereat have not subsequently been amended, revoked or superseded and that, in making any subsequent decision (including in connection with the issues of securities thereunder), the directors of the Guarantor and any committee or person to whom they have delegated any such decision will act in accordance with their duties as directors and officers (as applicable), in the interests of and for a proper purpose of the Guarantor;

 

(xiii)

that the Agreements are entered into by the Guarantor in good faith, in the interests of and for a proper purpose of the Guarantor and in furtherance of its objects under its memorandum and articles;

 

(xiv)

that the Agreements are in the best interests of and to the advantage of the Guarantor and likely to promote the success of the Guarantor;

 

(xv)	the statements made in the Deputy Secretary’s Certificate are complete and accurate as at today’s date;

 

(xvi)

that, for United Kingdom tax purposes, each of the Guarantor and the Issuer is resident in, and only in, the United Kingdom;

 

(xvii)

that each of the Securities represents “loan capital” for the purposes of section 79 of the Finance Act 1986 and none of the Securities is or includes interests in, or dividends in or other rights arising out of, or rights to allotments of or to subscribe for, or options to acquire, stocks, shares or loan capital which are paired with shares issued by a body corporate incorporated in the United Kingdom;

 

(xviii)

that the Agreements and the Securities have the same meaning and effect as if they were governed by English law;

 

(xix)

that the Agreements have been unconditionally delivered by the Guarantor;

 

Page 4/5 October 2023

 

(xx)	since 3 August 1998, no amendments have been made to the Indenture which continues in full force and effect as at the date hereof;

 

(xxi)

any restriction on borrowings or the giving of a guarantee in the articles of association of the Guarantor would not be contravened by the issue of the Securities, the giving of the Guarantees or by its execution of the Agreements or by its exercise of its rights or performance of its obligations thereunder;

 

(xxii)

all acts, conditions or things required to be fulfilled, performed or effected in connection with the Agreements under the laws of any jurisdiction other than England and Wales have been duly fulfilled, performed and effected in accordance with the laws of each such jurisdiction;

 

(xxiii)

that there has been no amendment to, or termination or replacement of, any of the documents examined by us and no change in any of the facts assumed by us for the purposes of giving this opinion; and

 

(xxiv)

that all signatures made by the authorised signatories authenticate the Agreements.

Based on and subject to the foregoing and subject to the reservations mentioned below and to any matters of fact not disclosed to us, we are of the opinion that:

 

1.	The Guarantor is a public limited company duly incorporated under the laws of England and Wales and is a validly existing company.

 

2.	The Guarantor has taken all necessary corporate action to authorise the execution and delivery of the Indenture.

 

3.	The Indenture has been duly executed by the Guarantor.

 

4.	On the assumption that the Indenture creates valid and binding obligations of the parties under New York law, English law will not prevent any provisions of the Indenture from being valid and binding obligations of the Guarantor.

 

5.

The statements in the Prospectus in the seventh sentence of the section entitled “Enforceability of Certain Civil Liabilities” and the sections entitled “Description of Debt Securities and Guarantees – Payment of Additional Amounts” and “Taxation – United Kingdom Taxation – United Kingdom Taxation of Debt Securities” of the Prospectus, in each case as amended or supplemented by the prospectus supplement, insofar as they are summaries of United Kingdom tax considerations or refer to statements of English law or legal conclusions, in all material respects present fairly the information shown.

Our reservations are as follows:

 

I.

Undertakings, covenants and indemnities contained in the Agreements and the Securities may not be enforceable before an English court insofar as they purport to require payment or reimbursement of (a) the costs of any unsuccessful litigation brought before an English court or where the court has itself made an order for costs; or (b) any stamp duties.

 

Page 5/5 October 2023

 

II.

Insofar as any obligation under the Agreements or the Securities is to be performed in any jurisdiction other than England and Wales, an English court may have to have regard to the law of that jurisdiction in relation to the manner of performance and the steps to be taken in the event of defective performance.

 

III.	We express no opinion as to whether specific performance, injunctive relief or any other form of equitable remedy would be available in respect of any obligation of the Guarantor under or in respect of the Agreements or the Securities.

 

IV.	This opinion is subject to any limitations arising from insolvency, liquidation, administration, moratorium, reorganisation and similar laws and procedures affecting the rights of creditors.

 

V.	In our opinion under English law there is doubt as to the enforceability in the United Kingdom, in original actions or in actions for enforcement of judgments of United States courts, of liabilities founded in the United States Federal or State securities laws.

 

VI.

The Searches are not conclusive as to whether or not insolvency proceedings have been commenced in relation to the Guarantor or any of its assets. For example, information required to be filed with the Registrar of Companies or the Central Registry of Winding up Petitions is not in all cases required to be filed immediately (and may not be filed at all or on time); once filed, the information may not be made publicly available immediately (or at all); information filed with a District Registry or County Court may not, and in the case of administrations will not, become publicly available at the Central Registry; and the Searches may not reveal whether insolvency proceedings or analogous procedures have been commenced in jurisdictions outside England and Wales.

 

VII.

The terms “binding” and “enforceable” as used in this opinion to describe an obligation mean that the obligation is of a type which the English courts enforce. This does not mean that the obligation will necessarily be legally binding and enforceable in all circumstances in accordance with its terms, enforcement being subject to, for example, the discretion of the court to order specific performance or to issue an injunction, the provisions of the Limitation Act 1980, the acceptance of jurisdiction by the English courts, rules of procedure and principles of law and equity of general application.

 

VIII.

Other than as expressly provided in paragraph 5 above, we have not been responsible for investigating or verifying the accuracy of the information or the reasonableness of any statements of opinion contained in the Prospectus, or that no material information has been omitted from it. We express no view as to whether or not there may be other laws or regulations to which the activities described in the Prospectus could be subject or whether the persons responsible for the Prospectus have discharged their obligations in relation to it.

 

IX.	If an English court assumes jurisdiction, an English court would not apply New York law if:

 

(a)

it is not pleaded or proved;

 

(b)

to do so would be contrary to English public policy or mandatory rules of English law; or

 

Page 6/5 October 2023

 

(c)

to do so would give effect to a foreign penal, revenue or other public law.

 

X.	Where the parties have agreed to submit to the exclusive jurisdiction of the court of any place outside England and Wales, the English courts would not accept jurisdiction unless strong cause were shown.

 

XI.

The English courts may stay proceedings or decline jurisdiction, notably if concurrent proceedings are being brought elsewhere. In some circumstances they may be obliged to do so and may be unable to issue a restraining order to prevent the commencement or continuation of proceedings threatened or brought in another court in breach of a jurisdiction clause.

 

XII.	We have not been asked to, and we do not, express any opinion as to any taxation (including value added tax) which will or may arise in connection with the Agreements or the issue or offering of the Securities.

 

XIII.

This opinion is subject to any limitations arising from:

 

(a)

United Nations, European Union or United Kingdom sanctions or other similar measures applicable to any party to the Agreements or any transfers or payments made under the Agreements; and

 

(b)

EU Regulation 2271/96 (as it forms part of English law pursuant to the European Union (Withdrawal) Act 2018 (as amended)) protecting against the effects of the extra-territorial application of legislation adopted by a third country (the “Blocking Regulation”) and legislation related to the Blocking Regulation.

This opinion is addressed to you in connection with the issue of the Securities. We consent to the references to our name and opinion under the captions “Enforceability of Certain Civil Liabilities”, “Taxation – United Kingdom Taxation” and “Validity of Securities” in the Prospectus. In giving this consent, we do not admit that we are within the category of persons whose consent is required within section 7 of the Securities Act or the rules and regulations of the SEC thereunder.

To the extent permitted by applicable law and regulation, you may rely on this letter only on condition that your recourse to us in respect of the matters addressed in this letter is against the firm’s assets only and not against the personal assets of any individual partner. The firm’s assets for this purpose consists of all assets of the firm’s business, including any right of indemnity of the firm or its partners under the firm’s professional indemnity insurance policies, but excluding any right to seek contribution or indemnity from or against any partner of the firm or person working for the firm or similar right.

Yours faithfully, 

/s/ Slaughter and May

 

Page 7/5 October 2023

Exhibit 5.2

 

A LIMITED LIABILITY PARTNERSHIP   TELEPHONE: +44 (0)20-7959-8900 FACSIMILE: +44 (0)20-7959-8950 WWW.SULLCROM.COM		One New Fetter Lane London EC4A 1AN, England                               BRUSSELS • FRANKFURT • PARIS   LOS ANGELES • NEW YORK • PALO ALTO • WASHINGTON, D.C.   BEIJING • HONG KONG • TOKYO   MELBOURNE • SYDNEY

October 5, 2023

Diageo plc,

16 Great Marlborough Street,

London W1F 7HS,

England.

Diageo Capital plc,

11 Lochside Place,

Edinburgh EH12 9HA,

Scotland.

Ladies and Gentlemen:

In connection with the registration under the Securities Act of 1933 (the “Act”) of $800,000,000 aggregate principal amount of 5.375% Fixed Rate Notes due 2026 (the “2026 Notes”) and $900,000,000 aggregate principal amount of 5.625% Fixed Rate Notes due 2033 (the “2033 Notes”, and, together with the 2026 Notes, the “Securities”) of Diageo Capital plc, a public limited company incorporated under the laws of Scotland (the “Issuer”), each fully and unconditionally guaranteed as to payment of principal and interest by the related guarantees (the “Guarantees”) of Diageo plc (the “Guarantor”), and issued pursuant to the Indenture, dated as of August 3, 1998 (the “Indenture”), between the Issuer and the Guarantor, on the one hand, and The Bank of New York Mellon, as Trustee (the “Trustee”), on the other hand, we, as your United States counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.

Upon the basis of such examination, it is our opinion that, when the Registration Statement has become effective under the Act, (1) assuming the Securities have been duly authorized, executed, issued and delivered by the Issuer insofar as the laws of Scotland are concerned, the Securities will constitute valid and legally binding obligations of the Issuer and (2) assuming the Guarantees have been duly authorized, executed and delivered by the Guarantor insofar as the laws of England and Wales are concerned, the Guarantees will constitute valid and legally binding obligations of the Guarantor, subject, in each case, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

 

 

Sullivan & Cromwell LLP carries on business in England and Wales through Sullivan & Cromwell MNP LLP, a registered limited liability partnership established under the laws of the State of New York.

The personal liability of our partners is limited to the extent provided in such laws. Additional information is available upon request or at www.sullcrom.com.

Sullivan & Cromwell MNP LLP is authorized and regulated by the Solicitors Regulation Authority (Number 00308712).

A list of the partners’ names and professional qualifications is available for inspection at 1 New Fetter Lane, London EC4A 1AN. All partners are either registered foreign lawyers or solicitors.

Diageo plc				-2-
Diageo Capital plc

 

In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in the Registration Statement or any related prospectus or other offering material regarding the Issuer, the Guarantor or the Securities, the Guarantees or their offering and sale.

The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of New York, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. For purposes of our opinion, we have, with your approval, assumed that (1) the Issuer has been duly incorporated and is an existing company under the laws of Scotland, (2) the Guarantor has been duly incorporated and is an existing company under the laws of England and Wales, and (3) the Indenture has been duly authorized, executed and delivered by the Issuer insofar as the laws of Scotland are concerned and by the Guarantor insofar as the laws of England and Wales are concerned. With respect to all matters of Scottish law, we note that you have received an opinion, dated the date hereof, of Morton Fraser LLP, Scottish counsel to the Issuer. With respect to all matters of English law, we note that you have received an opinion, dated the date hereof, of Slaughter and May, English counsel to the Guarantor.

Also, we have relied as to certain factual matters on information obtained from public officials, officers of the Issuer and the Guarantor and other sources believed by us to be responsible, and we have assumed that the Indenture has been duly authorized, executed and delivered by the Trustee, that the Securities conform to the specimens thereof examined by us, that the Trustee’s certificates of authentication of the Securities have been manually signed by one of the Trustee’s authorized officers, and that the signatures on all documents examined by us are genuine, assumptions which we have not independently verified.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement relating to the Securities and the Guarantees under cover of Form 6-K and to the references to us under the heading “Validity of Securities” in the prospectus dated February 23, 2023, as supplemented by the prospectus supplement dated October 2, 2023. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.

 

Exhibit 5.3

 

5 October 2023   AEB/01230.00049

Diageo plc

16 Great Marlborough Street

London W1F 7HS

and

Diageo Capital plc

11 Lochside Place

Edinburgh EH12 9HA

Dear Sirs

U.S. $800,000,000 5.375% fixed rate notes due 2026 and U.S. $900,000,000 5.625% fixed rate notes due 2033 of Diageo Capital plc (the “Securities”) guaranteed as to the payment of principal and interest by Diageo plc

We have been requested in our capacity as Scottish solicitors to provide the following opinion in relation to the proposed issuance and sale by Diageo Capital plc, a public limited company incorporated in Scotland (registered number SC40795) and having its registered office at 11 Lochside Place, Edinburgh, Scotland, EH12 9HA (the “Company”), of the Securities.

The Securities are to be issued pursuant to the provisions of an Indenture dated 3 August 1998 (the “Indenture”) among the Company, Diageo plc, a public limited company incorporated under the laws of England and Wales (registered number 23307) and having its registered office at 16 Great Marlborough Street, London, United Kingdom, W1F 7HS (the “Guarantor”) and The Bank of New York Mellon as Trustee.

The Securities are to be unconditionally guaranteed as to payment of principal and interest by the Guarantor.

In connection with this opinion, we have examined drafts, identified to our satisfaction of such documents, corporate records and other instruments as we have deemed necessary or appropriate including the registration statement (the “Registration Statement”) on Form F-3 dated 23 February 2023, covering the registration of the Securities under the Securities Act 1933 (the “Act”) of the United States of America and a Prospectus Supplement dated 2 October 2023 and a copy of (1) the Indenture; and (2) drafts of the form of the Securities. We have also examined a search prepared by Millar & Bryce, in the Register of Charges and Company File of the Company maintained by the Registrar of Companies in Scotland dated 5 October 2023 and brought down to 4 October 2023, which search discloses no charges relevant to this transaction over any part of the Company’s assets and undertaking, and no notices of liquidation, receivership, appointment of an administrator, winding up or striking off and a Certificate of Good Standing issued by the Registrar of Companies in Scotland on 5 October 2023.

Based on the foregoing, we are of the opinion that:-

 

1	the Company is a public limited company duly incorporated, validly existing and registered under the laws of Scotland and has full corporate power and authority in due course to execute, deliver and perform its obligations under the Indenture and the Securities;

Edinburgh

Quartermile Two

2 Lister Square

Edinburgh EH3 9GL

DX ED119

t: 0131 247 1000

f: 0131 247 1007

Glasgow

1 West Regent Street

Glasgow G2 1RW

DX GW58

t: 0141 274 1100

f: 0141 274 1129

 

www.morton-fraser.com

2

on the assumption that the Indenture creates valid and binding obligations of the parties thereto under New York law, Scottish law will not prevent any provision of the Indenture from being a valid and binding obligation of the Company subject to all limitations resulting from bankruptcy, insolvency, liquidation, receivership, administration or reorganisation of the Company and court schemes, moratoria and similar laws of general application affecting the enforcement of creditors’ rights;

 

3

that the Securities have been duly authorised, executed, authenticated, issued and delivered by the Company and, on the assumption that the Securities will create valid and binding obligations of the parties thereto under New York law, Scottish law will not prevent any provision of the Securities from being a valid and binding obligation of the Company, subject to all limitations resulting from bankruptcy, insolvency, liquidation, receivership, administration or reorganisation of the Company and court schemes, moratoria and similar laws of general application affecting the enforcement of creditors’ rights applicable to the Company;

 

4	the choice of law of the State of New York to govern the Indenture and the Securities is competent in terms of Scottish law and will be recognised and under New York law, will be effective, in so far as the laws of Scotland are concerned to confer valid jurisdiction over the Company; and

 

5	the Company has the power to submit to and, in due course, to take all necessary corporate action to submit to the jurisdiction of any New York Court.

We are a firm of solicitors qualified to practise as such in Scotland and we are regulated by The Law Society of Scotland. Accordingly we do not express any opinion herein concerning any law other than the laws operative for the time being in Scotland.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the headings “Enforceability of Certain Civil Liabilities” and “Validity of the Securities” in the Prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under the Act.

Yours faithfully

/s/ Morton Fraser LLP

For Morton Fraser LLP

 

2