Exhibit 1.2
Sun International Hotels Limited
[Ordinary][Preference] Shares[; Warrants to Purchase
[Ordinary][Preference] Shares]
Underwriting Agreement
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
New York, New York
_______ , 20___
Ladies and Gentlemen:
Sun International Hotels Limited, an international business company
organized under the laws of the Commonwealth of The Bahamas ("Sun
International" or the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named
in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the number of [Ordinary]
[Preference] Shares of the Company, [$ par value] ("[Ordinary][Preference]
Shares") set forth in Schedule I hereto [and warrants ("Warrants") to purchase
the number of [Ordinary][Preference] Shares of the Company set forth in
Schedule I hereto,][; and the persons named in Schedule III hereto (the
"Selling Stockholders") propose to sell to the several Underwriters the number
of [Ordinary][Preference] Shares set forth in Schedule III hereto] (said
shares to be issued and sold by the Company [and shares to be sold by the
Selling Stockholders collectively] being hereinafter called the "Underwritten
Securities"). The Company [and the Selling Stockholders] also propose[s] to
grant to the Underwriters an option to purchase up to the number of additional
[Ordinary][Preference] Shares [Warrants] set forth in Schedule II and Schedule
III, respectively, hereto to cover over-allotments (the "Option Securities";
the Option Securities, together with the Underwritten Securities, being
hereinafter called the "Securities"). To the extent that there is not more
than one Selling Stockholder named in Schedule III, the term Selling
Stockholder shall mean either the singular or plural. The use of the neuter in
this Agreement shall include the feminine and masculine wherever appropriate.
The Company has filed with the Commission a registration statement on
Form F-3 (No. 333-_______) for the registration of the Securities under the
Act, and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the Act (the "Act
Regulations"), and the Company has filed such pre-effective amendments thereto
as may be required. Such registration statement (as so amended, if applicable)
has been
declared effective by the Commission. Such registration statement (as so
amended, if applicable); and the final prospectus dated ____________ and the
final prospectus supplement relating to the offering of the Securities, in the
form first furnished to the Underwriters by the Company for use in connection
with the offering of the Securities, are collectively referred to herein as
the "Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Exchange Act. A "preliminary
prospectus" shall be deemed to refer to any prospectus contained in the
registration statement before it became effective, any prospectus used before
the registration statement became effective and any prospectus that omitted
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the Act Regulations that was used after
such effectiveness and prior to the Execution Time. For purposes of this
Underwriting Agreement, all references to the Registration Statement,
Prospectus or preliminary prospectus or to any amendment or supplement to any
of the foregoing shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be, and all references in this Underwriting
Agreement to amendments or supplements to the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be. All capitalized terms used and not defined herein shall
have the meaning set forth in the Registration Statement, Prospectus or
preliminary prospectus as the case may be.
1. REPRESENTATIONS AND WARRANTIES. [(i)] The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company has reasonable grounds to believe that the Registration
Statement was filed on the proper form under the Act. The Registration
Statement has become effective under the Act and no stop order suspending the
effectiveness of the Registration Statement has been issued under the Act and
no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request
on the part of the Commission for additional information has been complied
with.
(b) At the time the Registration Statement became effective and at the
Closing Date, the Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the Act and the Act Regulations and did not and will not
contain an 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. The Prospectus, at the date of the Prospectus and at the
Closing Date (as defined herein) and on any date on which Option Securities
are purchased, if such date is not the Closing Date (a "settlement date"), did
not and will not include an 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.
Notwithstanding the foregoing, the representations and warranties in this
subsection (a) shall not apply to (i) statements in or omissions from the
Registration Statement or the Prospectus and any amendments and supplements
thereto, made in reliance upon and in conformity with information furnished to
the Company in writing by or on behalf of the Underwriters specifically for
use in the Registration Statement or the Prospectus and any amendments and
supplements thereto (the "Underwriter Information"), (ii) statements in or
omissions from the Registration Statement or the Prospectus and any amendments
and supplements thereto, made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of the Selling
Stockholders specifically for use in the Registration Statement or the
Prospectus and any amendments and supplements thereto (the "Selling
Stockholder Information") and (iii) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of any trustee.
Each preliminary prospectus and 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 Act, complied when so filed
in all material respects with the Act Regulations and each preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with the offering of Securities will, at the time of such delivery,
be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(c) The documents incorporated or deemed to be incorporated by reference
in the Registration Statement and the Prospectus (the "Incorporated
Documents"), at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder (the
"Exchange Act Regulations") and, when read together with the other information
in the Prospectus, at the date of the Prospectus and at the Closing Date, did
not and will not include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(d) No contract or document which is required to be described in the
Registration Statement, the Prospectus or an Incorporated Document or to be
filed as an exhibit to the Registration Statement or an Incorporated Document
is not described or filed as required.
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its
business as it is currently being conducted or is proposed to be conducted (as
discussed in the Prospectus) and to own, lease and operate its properties, and
each is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified could not, singly or in the
aggregate, have a material adverse effect on the properties, results of
operations, financial
condition or prospects of the Company and its subsidiaries, taken as a whole
(a "Material Adverse Effect").
(g) The capitalization of the Company is as set forth in the Prospectus
under the caption "Capitalization." All of the issued and outstanding shares
of capital stock of, or other ownership interests in, each of the subsidiaries
of the Company have been duly authorized and validly issued and fully paid and
non-assessable, and owned by the Company, free and clear of any security
interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of
any nature (each, a "Lien") and of any restrictions on transfer, voting trusts
or other defects of title whatsoever except for the pledges of the shares of
the Company's subsidiaries under the Fourth Amended and Restated Revolving
Credit Agreement dated as of November 9, 2001, as amended, among Sun
International Bahamas Limited, the Company, SINA, certain of the Company's
subsidiaries, certain financial institutions and Canadian Imperial Bank of
Commerce, as administrative agent (as such agreement may be amended,
supplemented, restated or replaced, the "Existing Credit Agreement"). There
are no outstanding subscriptions, rights, warrants, options, calls,
convertible or exchangeable securities, commitments of sale or Liens related
to or entitling any person to purchase or otherwise to acquire any shares of
the capital stock of, or other ownership interest in, the Company, except as
disclosed in the Prospectus.
(h) [The Securities have been duly authorized and validly issued, are
fully paid and non-assessable and free of preemptive rights;] [Upon the
exercise of the Securities and the payment of the exercise price contained
therein, the [Ordinary Shares][Preference Shares] to be issued upon such
exercise will be dully authorized, validly issued, fully paid and
non-assessable and free of any preemptive rights;] the Securities conform to
the description thereof contained in the Prospectus; the stockholders of the
Company have on preemptive rights with respect to the Securities; and the
Securities when so issued, delivered and sold, will conform, to the
description thereof contained in the Prospectus.
[(i) The Warrant Agreement by and between the Company and ______________,
as warrant agent (the Warrant Agreement"), has been duly authorized and
validly executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms.]
(j) All the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights; the relinquishment agreement
between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all
material respects to the description thereof contained in the Prospectus; each
of the agreements described in the Prospectus to which the Company, any of its
subsidiaries, Sun International Management Limited ("SIML") or TCA is a party
conforms in all material respects to the description thereof contained in the
Prospectus, and the Company believes that each such agreement is effective and
enforceable against the other party, except as disclosed in the Prospectus.
(k) Neither the Company nor any of its subsidiaries is (i) in violation of
its respective charter or by-laws, (ii) in breach or violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them or any of
their respective properties or assets, or (iii) in
default in the performance of any obligation, bond, agreement, debenture,
note, or any other evidence of indebtedness or any indenture, mortgage, deed
of trust or other contract, lease or other instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them is bound, or
to which any of the property of the Company or any of its subsidiaries is
subject except, in the case of clauses (ii) and (iii), for such defaults that
could not reasonably be expected to have a Material Adverse Effect.
(l) The Company has all the requisite corporate power to execute, deliver
and perform its obligations under this Agreement and to authorize, issue and
sell the Securities being sold by it. The execution, delivery and performance of
this Agreement, the issuance and sale of the Securities, compliance by the
Company with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not require any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except those already received
and such as may be required under state securities laws or Blue Sky laws) and
will not conflict with or constitute a breach or violation of (i) any of the
charters or by-laws of the Company or any of its subsidiaries, (ii) any of the
terms or provisions of, or constitute a default under or cause an acceleration
of, any obligation, bond, agreement or condition contained in any bond, note,
debenture or other evidence of indebtedness or any indenture, mortgage, deed of
trust or other contract, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them is bound, or to
which any of the property of the Company or any of its subsidiaries is subject
or (iii) any laws, administrative regulations or rulings or orders of any court
or governmental agency, body or official having jurisdiction over the Company,
any of its subsidiaries or their respective properties, except in the case of
clauses (ii) and (iii) for such conflicts, breaches or violations that could not
reasonably be expected to have a Material Adverse Effect.
(m) No action has been taken and no statute, rule, regulation or order has
been enacted, adopted or issued by any governmental body, agency or official
which prevents the issuance of the Securities, prevents or suspends the use of
the Registration Statement or the Prospectus or suspends the sale of the
Securities in any jurisdiction referred to in Section 4(a) hereof; no
injunction, restraining order or order of any nature by any foreign, federal or
state court of competent jurisdiction has been issued with respect to the
Company or any of its subsidiaries which would prevent or suspend the issuance
or sale of the Securities or the use of the Registration Statement or the
Prospectus in any jurisdiction referred to in Section 4(a) hereof; and no
action, suit or proceeding before any court or arbitrator or any governmental
body, agency or official, domestic or foreign, is pending against or, to the
best knowledge of the Company, threatened against, the Company or any of its
subsidiaries which, if adversely determined, could interfere with or adversely
affect the issuance of the Securities or in any manner draw into question the
validity of this Agreement or Securities.
(n) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending against or, to the
knowledge of the Company, affecting the Company or any of its subsidiaries or
any of their respective assets or properties, which could have a Material
Adverse Effect, or which could materially and adversely affect the performance
by the Company of its obligations pursuant to this Agreement or the transactions
contemplated hereby and, to the best knowledge of the Company, except as
disclosed in the Registration
Statement or the Prospectus no such action, suit or proceeding is threatened or
contemplated.
(o) Except as disclosed in the Registration Statement or the Prospectus (i)
neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign laws or regulations relating to pollution or protection
of human health or the environment (collectively, the "Environmental Laws"); and
(ii) (A) neither the Company nor any of its subsidiaries has received any
communication (written or oral), whether from a governmental authority or
otherwise, alleging any such violation or noncompliance, and there are no
circumstances, either past or present or that are reasonably foreseeable, that
could reasonably be expected to lead to such violation in the future, (B) there
is no pending or, to the best of the Company's knowledge, threatened claim,
action, investigation or notice (written or oral) by any person or entity
alleging potential liability for investigatory, cleanup, or governmental
responses costs, or natural resources or property damages, or personal injuries,
attorneys' fees or penalties, relating to (x) the presence in or release into
the environment of any emissions, discharges or releases of toxic or hazardous
substances, materials or wastes or petroleum and petroleum products at any
location owned, leased or operated by the Company or any of its subsidiaries,
now or in the past, or (y) circumstances forming the basis of any violation or
alleged violation of any Environmental Law (collectively, "Environmental
Claims") and (C) to the best knowledge of the Company, there are no past or
present actions, activities, circumstances, conditions, events or incidents that
could form the basis of any Environmental Claim against the Company or any of
its subsidiaries, now or in the past, or against any person or entity whose
liability for any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law, in each of
clauses (i) and (ii) that could reasonably be expected to have a Material
Adverse Effect.
(p) Except as disclosed in the Prospectus (i) each of the Company, its
subsidiaries, [its directors and executive officers named in Item 10 in its
Annual Report on Form 20-F for its most recent fiscal year] [the persons listed
as executive officers under the caption "Management" in the Prospectus] (the
"executive officers") , TCA and SIML has all certificates, consents, exemptions,
orders, permits, licenses, authorizations or other approvals or rights of and
from, and has made all declarations and filings with, all foreign, federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, including, without limitation,
all such authorizations with respect to engaging in gaming, hotel and resort
operations, as applicable, in The Bahamas, Connecticut, New Jersey, Mauritius
and the Maldives required to own, lease, license and use its properties and
assets and to conduct its current business in the manner described in the
Prospectus (each, an "Authorization"), except to the extent that the failure to
possess such Authorizations could not reasonably be expected to have a Material
Adverse Effect; (ii) all such Authorizations are valid and in full force and
effect, except as could not reasonably be expected to have a Material Adverse
Effect; (iii) each of the Company, its subsidiaries, each of its executive
officers, TCA and SIML is in compliance in all respects with the terms and
conditions of all such Authorizations and with the rules and regulations of the
regulatory authorities and governing bodies having jurisdiction with respect
thereto, except as could not reasonably be expected to have a Material Adverse
Effect, and (iv) none of the Company, its subsidiaries, its executive officers,
SIML nor TCA has received any notice of proceedings relating to the revocation
or modification of any such Authorization and no such Authorization contains any
restrictions except as could not reasonably be expected to have a
Material Adverse Effect. Except as disclosed in the Prospectus, none of the
Company, any of its subsidiaries, any of its executive officers, SIML nor TCA
has any reason to believe that (i) any Regulatory Authority (as defined below)
is considering modifying, limiting, conditioning, suspending, revoking or not
renewing any such Authorizations of the Company, any of its subsidiaries, any of
its executive officers, SIML or TCA or (ii) that the National Indian Gaming
Commission, the Bureau of Indian Affairs, or regulatory authorities in The
Bahamas, Connecticut, New Jersey, Mauritius or the Maldives (collectively the
"Regulatory Authorities"), or any other governmental agencies are investigating
the Company, any of its subsidiaries, SIML or TCA or related parties (other than
normal overseeing reviews of the Regulatory Authorities incident to the gaming,
hotel or casino activities of the Company, its subsidiaries, any of its
executive officers, SIML and TCA), which investigation could reasonably be
expected to have a Material Adverse Effect.
(q) Except as disclosed in the Prospectus or as could not reasonably be
expected to have a Material Adverse Effect, the Company and each of its
subsidiaries has good and valid title, free and clear of all Liens except Liens
for taxes not yet due and payable and except for the pledges under Existing
Credit Agreement, to all property and assets described in the Prospectus as
being owned by it and such properties and assets are in the condition and
suitable for use as so described. All leases to which the Company or any of its
subsidiaries is a party are valid and binding and no default has occurred or is
continuing thereunder, which could reasonably be expected to have a Material
Adverse Effect.
(r) The Company maintains insurance at least in such amounts and covering
at least such risks as is adequate for the conduct of its businesses and the
value of its properties.
(s) The accountants, Xxxxxx Xxxxxxxx LLP (or other accountants of national
standing selected by the Company), that have certified the applicable financial
statements of the Company, filed with the Commission, are independent public
accountants with respect to such corporations as applicable, as required by the
Act.
(t) The financial statements, together with the related schedules and notes
included in the Prospectus, comply as to form in all material respects with the
requirements of the Act and present fairly the consolidated financial position,
results of operations and changes in financial position of the Company and its
subsidiaries at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles in the United States of
America ("GAAP") consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and data
set forth in the Prospectus are accurately presented and prepared on a basis
consistent with such financial statements and the books and records of the
Company. [The pro forma financial statements and other pro forma financial
information included in the Prospectus present fairly in all material respects
the information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein, except that Regulation S-X of the Act
does not require, and does not provide rules and guidelines with respect to
presentation of the financial statements for the last twelve months ended
____________.]
(u) Except as described in the Prospectus, subsequent to the respective
dates as of which information is given in the Prospectus and up to the Closing
Date (i) neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, which are material to the
Company and its subsidiaries, singly or in the aggregate, nor entered into any
material transaction not in the ordinary course of business, (ii) there has been
no decision or judgment in the nature of litigation, administrative or
regulatory proceedings or arbitration that could reasonably be expected to have
a Material Adverse Effect and (iii) there has not been any material adverse
change or any development which could involve, singly or in the aggregate, a
material adverse change, in the properties, results of operations, financial
condition or prospects of the Company and its subsidiaries, taken as a whole
(any of the items set forth in clauses (i), (ii) or (iii) of this paragraph (r),
a "Material Adverse Change").
(v) Neither the Company nor any of its subsidiaries is (i) an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act") or (ii) a
"holding company" or a "subsidiary company" of a holding company, or an
"affiliate" thereof within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(w) No authorization, approval, consent or order of, or filing with, any
court or governmental body, agency or official, including the Regulatory
Authorities, is necessary in connection with the transactions contemplated by
this Agreement except such as may be required by the state securities or Blue
Sky laws or regulations; neither the Company nor any of its affiliates is
presently doing business with the government of Cuba or with any person or
affiliate located in Cuba; each of this Agreement, the Registration Statement
and the Prospectus has been presented to the Regulatory Authorities to the
extent required by law, and such documents and the transactions contemplated
hereby or thereby have been approved by or on behalf of the Regulatory
Authorities to the extent required by law, and such approvals have not been
revoked, modified or rescinded.
(x) The Company and each of its subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(y) All material Tax (as defined below) returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been filed and all
such returns are true, complete and correct in all material respects. All
material Taxes that are due or claimed to be due from the Company and its
subsidiaries have been paid other than those (i) currently payable without
penalty or interest or (ii) being contested in good faith and by adequate
proceedings and, in either
case, for which adequate reserves have been established on the books and records
of the Company and its consolidated subsidiaries in accordance with GAAP. The
Company and its subsidiaries are not parties to any material pending action,
proceeding, inquiry or investigation by any governmental authority for the
assessment or collection of Taxes, nor does the Company have any knowledge of
any such proposed or threatened action, proceeding, inquiry, or investigation.
For purposes of this Agreement, the terms "Tax" and "Taxes" shall mean all
federal, state, local and foreign taxes, and other assessments of a similar
nature (whether imposed directly or through withholding), including any
interest, additional to tax, or penalties applicable thereto.
(z) None of the Company nor any agent acting on its behalf has taken or
will take any action that is reasonably likely to cause the issuance or sale of
the Securities to violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System, in each case as in effect on the Closing Date.
(aa) This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against it in accordance with its terms, except (i) to the
extent that enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of equity and
(ii) as rights to indemnity and contribution hereunder may be limited by
applicable law.
(bb) No holder of any security of the Company has or will have any right to
require the registration of such security by virtue of any transaction
contemplated by this Agreement [or the Warrant Agreement].
(cc) The Company has not (i) taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the initial filing of the Registration Statement (A)
sold, bid for, purchased, or paid anyone any compensation for soliciting
purchases of, the Securities or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company.
(dd) Each certificate signed by any officer of the Company or any of its
subsidiaries and delivered to the Underwriters or counsel for the Underwriters
in connection herewith shall be deemed to be a representation and warranty by
the Company or such subsidiary to the Underwriters as to the matters covered
thereby.
[ (ii) Each Selling Stockholder represents and warrants to, and agrees
with, each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Securities to be
sold by such Selling Stockholder hereunder and upon sale and delivery of, and
payment for, such Securities, as provided herein, such Selling Stockholder will
convey to the Underwriters good and
marketable title to such Securities, free and clear of all liens, encumbrances,
equities and claims whatsoever.
(b) Such Selling Stockholder has not taken, directly or indirectly, any
action designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(c) Certificates in negotiable form for such Selling Stockholder's
Securities have been placed in custody, for delivery pursuant to the terms of
this Agreement, under a Custody Agreement and Power of Attorney duly authorized
(if applicable) executed and delivered by such Selling Stockholder, in the form
heretofore furnished to you (the "Custody Agreement") with
______________________________, as Custodian (the "Custodian"); the Securities
represented by the certificates so held in custody for each Selling Stockholder
are subject to the interests hereunder of the Underwriters; the arrangements for
custody and delivery of such certificates, made by such Selling Stockholder
hereunder and under the Custody Agreement, are not subject to termination by any
acts of such Selling Stockholder, or by operation of law, whether by the death
or incapacity of such Selling Stockholder or the occurrence of any other event;
and if any such death, incapacity or any other such event shall occur before the
delivery of such Securities hereunder, certificates for the Securities will be
delivered by the Custodian in accordance with the terms and conditions of this
Agreement and the Custody Agreement as if such death, incapacity or other event
had not occurred, regardless of whether or not the Custodian shall have received
notice of such death, incapacity or other event.
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such Selling
Stockholder of the transactions contemplated herein, except such as may have
been obtained under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been obtained.
(e) Neither the sale of the Securities being sold by such Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by such Selling Stockholder or the fulfillment of the terms hereof
by such Selling Stockholder will conflict with, result in a breach or violation
of, or constitute a default under any law or [the charter or by-laws of such
Selling Stockholder or] the terms of any indenture or other agreement or
instrument to which such Selling Stockholder [or any of its subsidiaries] is a
party or bound, or any judgment, order or decree applicable to such Selling
Stockholder [or any of its subsidiaries] or any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
such Selling Stockholder [or any of its subsidiaries].
(f) Such Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in this Section 1 are
not true and correct, is familiar with the Registration Statement and has no
knowledge of any material fact, condition or information not disclosed in the
Prospectus or any supplement thereto which has adversely affected or may
adversely affect the business of the Company or any of its subsidiaries; and the
sale of Securities
by such Selling Stockholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries which is not set forth in the
Prospectus or any supplement thereto.
(g) In respect of any statements in or omissions from the Registration
Statement or the Prospectus or any supplements thereto made in reliance upon and
in conformity with information furnished in writing to the Company by any
Selling Stockholder specifically for use in connection with the preparation
thereof, such Selling Stockholder hereby makes the same representations and
warranties to each Underwriter as the Company makes to such Underwriter under
paragraph (i)(b) of this Section.
(h) Each certificate signed by any Selling Stockholder (or officer thereof)
and delivered to the Underwriters or counsel for the Underwriters in connection
herewith shall be deemed to be a representation and warranty by such Selling
Stockholder to the Underwriters as to the matters covered thereby.]
2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. (a) On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, (i) the Company hereby
agrees [and the Selling Stockholders agree, severally and not jointly,] to sell
the Securities to the Underwriters and (ii) each Underwriter hereby agrees,
severally and not jointly, to purchase from the Company [and the Selling
Stockholders], at the purchase price set forth in Schedule I hereto, the amount
of the Underwritten Securities set forth opposite the name of such Underwriter's
name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company [and the Selling
Stockholders] hereby grant[s] an option to the several Underwriters to purchase,
severally and not jointly, up to the number of Option Securities set forth in
Schedule I [and Schedule III, respectively,] at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities. Said option
may be exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Prospectus upon written or telegraphic notice by the Representatives to the
Company [and such Selling Stockholders] setting forth the number of shares of
the Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The maximum number of Option Securities to be
sold by the Company is _______ [and the maximum aggregate number of Option
Securities to be sold by the Selling Stockholders is ______]. [The maximum
number of Option Securities which each Selling Stockholder agrees to sell is set
forth in Schedule III hereto.] In the event that the Underwriters exercise less
than their full over-allotment option, the number of Option Securities to be
sold by the Company [and each Selling Stockholder listed on Schedule III] shall
be, as nearly as practicable, in the same proportion as the maximum number of
Option Securities to be sold by the Company [and each Selling Stockholder] and
the number of Option Securities to be sold. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to
such adjustments as the Representatives in their absolute discretion shall make
to eliminate any fractional shares.
(c) Delivery of and payment for the Underwritten Securities and the Option
Securities (if the option provided for in Section 2(b) hereof shall have been
exercised on or before the third Business Day prior to the Closing Date) shall
be made on the date and the time specified in Schedule I hereto or at such time
or such later date not more than three Business Days after the foregoing date as
the Underwriters shall designate, which date and time may be postponed by
agreement among the Representatives [, the Selling Stockholders] and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the [respective aggregate] purchase price[s] [thereof] of the
Securities being sold by the Company and each of the Selling Stockholders] to or
upon the order of the Company [and the Selling Stockholders] by wire transfer of
immediately available funds to an account or accounts to be designated by the
Company [and the Selling Stockholders] at least one business day prior to the
Closing Date.
Each Selling Stockholder will pay all applicable state transfer taxes, if
any, involved in the transfer to the several Underwriters of the Securities to
be purchased by them from such Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company [and the Selling
Stockholders] will deliver the Option Securities (at the expense of the Company)
to the Representatives, at [address], on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company [and the Selling Stockholders]
by wire transfer payable in same-day funds to an account specified by the
Company [and the Selling Stockholders]. If settlement for the Option Securities
occurs after the Closing Date, the Company [and the Selling Stockholders] will
deliver to the Representatives on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
The Securities shall be registered in such name or names and in such
authorized denominations as the Representatives may request in writing at least
two full business days prior to the Closing Date. The Company will permit the
Representatives to examine and package such Securities for delivery at least one
full business day prior to the Closing Date.
Each of the Underwriters hereby, severally and not jointly, represents and
warrants to, and agrees with, the Company that it will, during its initial
distribution of the Securities, furnish to each person to whom it sells any
Securities a copy of the Prospectus.
3. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
4. AGREEMENTS. [(i)] The Company covenants and agrees with the Underwriters
as follows:
(a) The Company will cooperate with the Underwriters in endeavoring to
qualify the Securities for sale under the securities laws of such jurisdictions
as the Representatives may reasonably have designated in writing and will make
such applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided that the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time to time, prepare
and file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a period as the
Representatives may reasonably request for distribution of the Securities.
(b) At any time during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, the Company will give the
Representatives notice of its intention to prepare any supplement to the
Prospectus or amendment to the Registration Statement, will furnish the
Representatives with copies of any such amendment, supplement or other document
a reasonable amount of time prior to such proposed filing or use, and will not
use any such amendment or supplement to which the Representatives or counsel for
the Underwriters shall reasonably object within five days of being furnished a
copy thereof. Subject to the foregoing sentence, if filing of the Prospectus is
required under Rule 424(b), the Company will cause the Prospectus including any
supplement thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b), when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, of any request by the Commission for any amendment to the
Registration Statement or amendment or supplement to the Prospectus or for any
additional information, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and of the receipt by the Company
of any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will make every reasonable effort to
prevent the issuance of any such stop order and, if issued, to obtain, as soon
as possible, the withdrawal thereof.
(c) The Company have furnished or will furnish to the Representatives such
number of copies of the Prospectus as the Representatives may reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the Act. The Company will furnish to the Representatives, without
charge, during the period when the Prospectus is required to be delivered under
the Act or the Exchange Act, such number of copies of the Prospectus (as amended
or supplemented) as the Representatives may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters will be
identical to the
electronically transmitted copies thereof filed via XXXXX, except to the extent
permitted by Regulation S-T.
(d) The Company will comply with the Act, the Exchange Act, the Act
Regulations, and the regulations promulgated under the Exchange Act so as to
permit the completion of the distribution of the Securities as contemplated in
this Agreement and in the Prospectus. If at any time when the Prospectus is
required by the Act or the Exchange Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Underwriters
or for the Company, to amend the Registration Statement in order that the
Registration Statement will not contain an 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 or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the Act or the Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 4(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Representatives, without charge, such number of
copies of such amendment or supplement as the Representatives may reasonably
request.
(e) At any time during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, the Company and each of its
subsidiaries will, as required, file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(f) The Company will, if requested by the Underwriters, use its best
efforts in cooperation with the Underwriters to permit the Securities to be
eligible for clearance and settlement through The Depository Trust Company.
(g) The Company will, for the shorter of the period the Securities remain
outstanding and five years from the Closing Date, deliver to the Representatives
copies of annual reports and copies of all other documents, reports and
information furnished by the Company or any of its subsidiaries to their
securityholders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
Exchange Act.
(h) The Company shall apply the net proceeds of their sale of the
Securities as set forth in the Prospectus.
(i) The Company shall not invest, or otherwise use the proceeds received by
the Company from its sale of the Securities in such a manner as would require
the Company or any of its subsidiaries to register as an investment company
under the 1940 Act or the rules and regulations thereunder.
(j) Except as described in or contemplated by the Prospectus, the Company
will not, without the prior written consent of the Representatives (which
consent will not be unreasonably or untimely withheld), issue, sell, offer or
agree to sell, or otherwise dispose of, directly or indirectly, other
[Ordinary][Preference] Shares or any securities convertible into, or
exercisable, or exchangeable for, [Ordinary][Preference] Shares; or publicly
announce an intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto, provided, however, that the Company may (i) issue
Ordinary Shares pursuant to any stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the Execution Time; (ii)
issue options to purchase Ordinary Shares pursuant to any stock option plan in
effect at the Execution Time; (iii) the Company may issue Ordinary Shares
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time; and (iv) may engage in such other
transactions, if any, specified in Schedule I.
(k) The Company will not claim the benefit of any usury laws against any
holders of Securities.
(l) The Company will timely file such reports pursuant to the Exchange Act
as are necessary in order to make generally available to its securityholders as
soon as practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the Act.
(m) The Company will use its reasonable best efforts to do and perform all
things required or necessary to be done and performed under this Agreement by
the Company prior to the Closing Date and to satisfy all conditions precedent to
the delivery of the Securities.
[ii) Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will not, without the prior written consent of
the Representatives, offer, sell, contract to sell, pledge or otherwise dispose
of (or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with the
Company or any affiliate of the Company) directly or indirectly, or file (or
participate in the filing of) a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act with respect to, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock, or publicly announce an intention to effect any such transaction, for a
period of _____________ days after the date of this Agreement, other than
Ordinary Shares disposed of as bona fide gifts approved by the Representatives.
(b) Such Selling Stockholder will not take any action designed to or which
has constituted or which might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by
you, will confirm such advice in writing, so long as delivery of a prospectus
relating to the Securities by an underwriter or dealer may be required under the
Act, of (i) any material change in the properties, results of operations,
financial condition or prospects of the Company and its subsidiaries, taken as a
whole, (ii) any change in information in the Registration Statement or the
Prospectus relating to such Selling Stockholder or (iii) any new material
information relating to the Company or relating to any matter stated in the
Prospectus which comes to the attention of such Selling Stockholder.]
5. PAYMENT OF EXPENSES. The Company agrees that whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, they will pay the Underwriters severally through the Representatives
on demand and be responsible for all costs, charges, liabilities, expenses, fees
and taxes incurred in connection with or incident to (i) the preparation,
printing (including word processing), distribution and delivery of the
Registration Statement (including financial statements and exhibits), as
originally filed and all amendments and supplements thereto, (ii) the
preparation, printing (including word processing), execution, distribution and
delivery of this Agreement, the certificates representing the Securities, the
preliminary and final Blue Sky memoranda and all other agreements, memoranda,
correspondence and other documents printed, distributed and delivered in
connection with the offering of the Securities (excluding in each case any fees
and disbursements of counsel for the Underwriters, other than such fees and
disbursements relating to the printing and delivery of the preliminary and final
Blue Sky Memoranda specified in clause (iii) below), (iii) the qualification of
the Securities for offer and sale under the securities or Blue Sky laws of the
jurisdictions referred to in paragraph 3(a) (including in each case the
reasonable fees and disbursements of counsel for the Underwriters relating to
such qualification and any memoranda relating thereto and any filing fees in
connection therewith), (iv) furnishing such copies of the Registration
Statement, the Prospectus and all amendments and supplements thereto as may be
reasonably requested for use in connection with the offering or sale of the
Securities by the Underwriters or by dealers to whom Securities may be sold, (v)
the rating of the Securities by one or more rating agencies and (vi) the
performance by the Company of its other obligations under this Agreement,
including (without limitation) all expenses and taxes incident to the sale and
delivery of the Securities to the Underwriters. The Company hereby agrees and
acknowledges that the Underwriters shall not be responsible for any fees or
expenses of the Company in connection with the performance by it of its
obligations under this Agreement.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters to purchase the Underwritten Securities and any Option Securities,
as the case may be, under this Agreement are subject to the satisfaction of each
of the following conditions:
(a) The Registration Statement has become effective under the Act and no
stop order suspending the effectiveness of the Registration Statement shall have
been issued under the Act and no proceedings for that purpose shall have been
initiated or be pending or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the Securities,
the specific method of distribution and similar matters shall have been filed
with the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable.
(b) All the representations and warranties of the Company [and the Selling
Stockholders] contained in this Agreement [and the Warrant Agreement] shall be
true and correct on the Closing Date and any settlement date pursuant to Section
2 hereof with the same force and effect as if made on and as of the Closing
Date. The Company [and the Selling Stockholders] shall have performed or
complied with all of [its] [their] obligations and agreements herein contained
and required to be performed or complied with by it prior to the Closing Date
and any settlement date pursuant to Section 3 hereof.
(c) (i) Since the date of the latest balance sheet of the Company included
in the Registration Statement or the Prospectus there shall not have been any
Material Adverse Change, or any development involving a prospective Material
Adverse Change, (ii) since the date of the latest balance sheet of the Company
included in the Registration Statement or the Prospectus there shall not have
been any material adverse change, or any development involving a prospective
material adverse change, in the capital stock or debt of the Company or its
subsidiaries, (iii) the Company and its subsidiaries shall have no liability or
obligation, direct or contingent, which is material to the Company and its
subsidiaries, taken as a whole, other than those reflected in the Registration
Statement or the Prospectus and (iv) on the Closing Date the Representatives
shall have received a certificate of the Company, dated the Closing Date, signed
by the Chief Financial Officer and Executive Vice President-Corporate
Development of the Company, in their capacities as officers of the Company,
confirming the matters set forth in paragraphs (b) and (c) of this Section 6.
(d) The Representatives shall have received on the Closing Date an opinion
(reasonably satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of Xxxxxxx X. Xxxxx, Esq., General
Counsel of the Company, to the effect that:
(i) (A) all Authorizations of the Company and its subsidiaries are
valid and in full force and effect; and (B) to the best of such counsel's
knowledge, each of the Company, its subsidiaries and TCA is in compliance
in all material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities and governing bodies having jurisdiction with respect thereto,
except where the failure to have such Authorizations or to be in compliance
could not reasonably be expected to have a Material Adverse Effect;
(ii) the descriptions in the Registration Statement or the Prospectus
of contracts to which any of the Company, any of its subsidiaries, SIML or
TCA is a party have been reviewed by such counsel and are accurate
summaries thereof in all material respects (except for financial data
included therein or omitted therefrom, as to which counsel need express no
opinion); to the best of such counsel's knowledge, there are no contracts
required to be described or referred to in the Registration Statement or
required to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto;
(iii) the Company and each of its subsidiaries is duly qualified and
is in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified could not reasonably be expected to have a Material
Adverse Effect;
(iv) neither (A) the Company nor any of its subsidiaries is not in
violation of its charter or by-laws and (B) the Company nor any of its
subsidiaries is in default in the performance of any obligation, bond,
agreement or condition contained in any bond, note, debenture, indenture or
other evidence of indebtedness or any indenture, mortgage, deed of trust or
other contract, lease or other instrument to which the Company or any of
its subsidiaries is a party or by which it or any of its subsidiaries or
their respective property is bound, except, in each case, for defaults
which could not reasonably be expected to have a Material Adverse Effect;
(v) there are no legal or governmental proceedings pending or, except
as disclosed in the Prospectus, to such counsel's knowledge, threatened to
which the Company is a party or to which any of its property is subject
which, if determined adversely, would reasonably be expected to have a
Material Adverse Effect or adversely affect the performance by the Company
of its obligations pursuant to this Agreement;
(vi) the Incorporated Documents (in each case except for the financial
statements and other information of a statistical, accounting or financial
nature, as to which such counsel does not express any view), at the time
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Exchange Act and the Exchange Act Regulations; and
(vii) the execution, delivery and performance of this Agreement [and
the Warrant Agreement] by the Company, the issuance and sale of the
Securities and compliance by the Company with all the provisions hereof and
thereof and the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of (A)
any of the charters or by-laws of the Company or any of its subsidiaries,
(B) any of the terms or provisions of, or constitute a default under, or
cause an acceleration of, any obligation, bond, agreement, or condition
contained in any bond, note, debenture, or other evidence of indebtedness
or any indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective properties
are subject or (C) to such counsel's knowledge, any laws, administrative
regulations or rulings or orders of any court or governmental agency, body
or official having jurisdiction over the Company, any of its subsidiaries
or their respective properties except in the case of clauses (B) and (C)
for such conflicts, breaches or violations that could not reasonably be
expected to have a Material Adverse Effect.
In addition, such counsel shall state that no facts have come to such
counsel's attention that caused such counsel to believe that the Registration
Statement as of the time such
Registration Statement became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, as of its date and the Closing Date, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Without limiting the foregoing, such
counsel may further state that it assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial, accounting and statistical
data included in the Prospectus.
(e) The Representatives shall have received on the Closing Date an opinion
(reasonably satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of Xxxxxxx X. Xxxxxx, Associate General
Counsel of the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the Commonwealth of The
Bahamas and has the corporate power and authority required to carry on its
business as it is currently being conducted or is proposed to be conducted
(as discussed in the Prospectus) and to own, lease and operate its
properties;
(ii) the Company has all the requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement and to
authorize, issue and sell the Securities as contemplated by this Agreement;
(iii) all of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
and validly authorized and issued and are fully paid and non-assessable (to
the extent governed by Bahamas law), and are owned by the Company, free and
clear of any Lien except for the pledges by the Company under the Existing
Credit Agreement;
(iv) the Company's authorized equity capitalization is as set forth in
the Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus; the
outstanding shares of [Ordinary Shares][Preference Shares] [including the
Securities being sold hereunder by the Selling Stockholders] have been duly
and validly authorized and issued and are fully paid and non-assessable;
the Securities [being sold hereunder by the Company] have been duly and
validly authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
non-assessable; [the Securities being sold by the Selling Stockholders are
duly qualified for inclusion on The New York Stock Exchange]; and the
Securities being sold hereunder by the Company are duly qualified for
inclusion on The New York Stock Exchange; the certificates for the
Securities are in valid and sufficient form; and the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities; and, except as set forth in
the Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of
or ownership
interests in the Company are outstanding; all the outstanding shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid, non-assessable and not subject to any preemptive or
similar rights;
(v) this Agreement has been duly and validly authorized, executed and
delivered by the Company;
(vi) the statements in the Prospectus under the caption "Tax
Consequences--Certain Bahamian Tax Considerations," (or, if any such
caption is not used in the Prospectus, any statements under a caption
substantially similar thereto reasonably identified by counsel to the
Representatives) insofar as such statements constitute summaries of
Bahamian statutes, regulations, legal and governmental proceedings and
contracts to which the Company or any of its subsidiaries is a party, have
been reviewed by such counsel and are accurate summaries thereof in all
material respects;
(vii) the execution, delivery and performance of this Agreement [and
the Warrant Agreement] by the Company, the issuance and sale of the
Securities, compliance by the Company with all the provisions hereof and
thereof and the consummation of the transactions contemplated hereby and
thereby will not conflict with or constitute a breach or violation of (A)
any Bahamian laws or administrative regulations, (B) rulings or orders of
any Bahamian court or governmental agency, body or official having
jurisdiction over the Company, any of its Bahamian subsidiaries or their
respective properties or (C) the respective Memorandum or Articles of
Association of the Company or any of its Bahamian Subsidiaries;
(viii) no authorization, approval, consent or order of any
governmental or regulatory agency, body or official or any court of the
Commonwealth of The Bahamas is required to be obtained in connection with
the issuance and sale of the Securities or the consummation of the
transactions contemplated by this Agreement [or the Warrant Agreement];
(ix) to the best of such counsel's knowledge, after due inquiry,
neither the Company nor any of its Bahamian subsidiaries is in default or
violation of any Bahamian laws, administrative regulations or order of any
court or governmental agency, body, department, authority, board or
official or other regulatory body.
(f) The Representatives shall have received on the Closing Date an opinion
(reasonably satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of Cravath, Swaine & Xxxxx, United States
counsel for the Company, to the effect that:
(i) to our knowledge, no authorization, approval or other action by,
and no notice to, consent of, order of, or filing with, any United States
Federal or New York governmental authority or regulatory body is required
for the consummation of the transactions contemplated by the Underwriting
Agreement [or the Warrant Agreement], except such as have been obtained
under the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Underwritten Securities by the Underwriters;
(ii) the Securities conform in all material respects as to legal
matters to the descriptions thereof contained in the Prospectus;
(iii) the statements made in the Prospectus under the heading "Tax
Consequences--Certain United States Tax Consequences to Non-U.S. Holders,"
(or, if such heading is not used in the Prospectus, any statements under a
heading substantially similar thereto reasonably identified by counsel to
the Representatives) insofar as they purport to describe the material U.S.
Federal tax consequences of an investment in the Securities by a Non-U.S.
Holder (as defined in the Prospectus), fairly summarize the matters therein
described.
(iv) neither the Company nor any of its subsidiaries is an "investment
company" within the meaning of, or is registered or otherwise required to
be registered under, the Investment Company Act of 1940, as amended; and
(v) the Registration Statement became effective under the Act on
_______, 20__ and thereupon the offering of the Securities as contemplated
by the Prospectus became registered under the Act and, to our knowledge, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act. The required filing of the
Prospectus under Rule 424(b) has been made in the manner and within the
time frame required by Rule 424(b).
In addition, such counsel shall state that it has participated in
conferences with certain officers of, and with the accountants for, the Company
concerning the preparation of the Registration Statement and the Prospectus.
Such counsel shall also advise you that, although it has made certain inquiries
and investigations in connection with the preparation of the Registration
Statement and the Prospectus, the limitations inherent in the role of outside
counsel are such that it cannot and does not assume responsibility for the
accuracy or completeness of the statements made in the Registration Statement
and Prospectus, except insofar as such statements relate to such counsel. Such
counsel shall also state that subject to the foregoing, such counsel's work in
connection with this matter did not disclose any information that gave such
counsel reason to believe that: (i) the Registration Statement, at the time the
Registration Statement became effective, or the Prospectus, as of its date and
the Closing Date (in each case except for the financial statements and other
information of a statistical, accounting or financial nature included therein,
and the Statement of Eligibility (Form T-1) included as an exhibit to the
Registration Statement, as to which such counsel does not express any view), was
not appropriately responsive in all material respects to the requirements of the
Act and the applicable rules and regulations of the Commission thereunder; or
(ii) the Registration Statement, at the time the Registration Statement became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date and
the Closing Date, included or includes an untrue statement of a material fact or
omitted or omits 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.
Without limiting the foregoing, such counsel may further state that it
assumes no responsibility for, expresses no view as to, and has not
independently verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial, accounting and statistical
data included in the Prospectus. Such counsel may also state that it has assumed
in its examination of all relevant documents the genuineness of all signatures,
has relied as to factual matters upon the statements of officers and other
representatives of the Company and as to matters relating to the laws of other
jurisdictions, on the opinions of local counsel for the Company in such
jurisdictions, as to which laws such counsel need express no opinion.
(g) The Representatives shall have received on the Closing Date an opinion
(satisfactory to the Representatives and counsel for the Underwriters), dated
the Closing Date, of Xxxxxx & Whitney and Rome XxXxxxxx Xxxxxxxx P.C., special
counsel to the Company, to the effect that:
(i) Sun Cove has been duly incorporated and is a corporation validly
existing and in good standing under the laws of the State of Connecticut,
with full corporate power and authority to own, lease and operate its
properties and conduct its businesses as described in the Prospectus;
(ii) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with
or constitute a breach or violation of (A) any Connecticut laws or
administrative regulations applicable to Sun Cove, (B) rulings or orders of
any Connecticut court or governmental agency, body or official having
jurisdiction over Sun Cove or its properties or (C) the charter and by-laws
of Sun Cove;
(iii) none of the issuance and sale of the Securities or the
performance of the Company's obligations pursuant to this Agreement or the
receipt of payments by TCA under the Mohegan Sun Casino relinquishment
agreement will violate any federal, tribal or Connecticut statute, rule or
regulation with respect to gaming to which the Company, its subsidiaries or
TCA is subject or by which any of them is bound or to which any of their
properties are subject;
(iv) no authorization, approval, consent or order of any federal,
tribal or Connecticut authority with jurisdiction over gaming is required
to be obtained in connection with the issuance and sale of the Securities
and the transactions contemplated by this Agreement;
(v) each of the Company, its subsidiaries, TCA and their employees has
such permits from all regulatory or governmental officials, bodies and
tribunals, federal, tribal or Connecticut, with respect to gaming laws, as
are necessary to conduct its business in the manner described in the
Prospectus; and
(vi) the TCA partnership agreement is a valid and binding agreement of
Sun Cove, enforceable against Sun Cove in accordance with its terms,
subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws now or hereafter in effect relating to creditors' rights
generally and to general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
(h) The Representatives shall have received on the Closing Date an opinion
(reasonably satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of Xxxxxxx, Xxxx & Xxxxxxx, British
Virgin Islands counsel to the Company, to the effect that:
(i) SIML is a corporation duly organized, validly existing and in good
standing under the laws of the British Virgin Islands;
(ii) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or constitute a breach or violation of (A) any British Virgin
Islands laws or administrative regulations, (B) rulings or orders of any
British Virgin Islands court or governmental agency, body or official
having jurisdiction over SIML or its properties or (C) the charter and
by-laws of SIML; and
(iii) to the best knowledge of such counsel, after due inquiry, SIML
is not in material default under, or in material violation of, any material
laws or regulations or any order of any court or governmental agency,
authority, department, board or other regulatory body.
The opinions of Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Cravath, Swaine &
Xxxxx, Xxxxxx & Xxxxxxx, Rome XxXxxxxx Xxxxxxxx P.C. and Xxxxxxx, Xxxx & Xxxxxxx
described in paragraphs (d), (e), (f), (g) and (h) above shall be rendered to
the Representatives at the request of the Company and shall so state therein.
(i) The Representatives shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, special counsel for the Underwriters, an opinion dated the
Closing Date as to such matters as the Representatives may reasonably require.
(j) The Representatives shall have received at or prior to the Closing Date
from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, a memorandum or summary, in form
and substance satisfactory to the Representatives, with respect to the
qualification for offering and sale by the Underwriters of the Securities under
the state securities or Blue Sky laws of such jurisdictions as the Underwriters
may reasonably have designated to the Company.
(k) The Representatives shall have received at the Execution Time and on
the Closing Date a letter, dated as of the Execution Time and the Closing Date,
respectively, in form and substance satisfactory to the Representatives, of
Xxxxxx Xxxxxxxx LLP (or other accountants of national standing selected by the
Company) confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations thereunder
and stating that in their opinion the financial statements and schedules
examined by them comply in form in all material respects with the applicable
accounting requirements of the
Act and the related published Rules and Regulations, and containing such other
statements and information as is ordinarily included in accountants' "comfort
letters" to an Underwriter with respect to the financial statements and certain
financial and statistical information contained in the Prospectus.
(l) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from each
person listed in Schedule I.
[(m) The Representatives and the Company shall have received on the Closing
Date an opinion (reasonably satisfactory to the Representatives and counsel for
the Underwriters and the Company and counsel to the Company), dated the Closing
Date, of _______________, counsel to the Selling Shareholders, addressing such
matters as we reasonably request, including but not limited to the effect that:
(i) this Agreement [and the Custody Agreement and Power of Attorney] has
[have] been duly [authorized,] executed and delivered by the Selling
Stockholders [, the Custody Agreement is valid and binding on the Selling
Stockholders] and each Selling Stockholder has full legal right and authority to
sell, transfer and deliver in the manner provided in this Agreement [and the
Custody Agreement] the Securities being sold by such Selling Stockholder
hereunder;
(ii) the delivery by each Selling Stockholder to the several Underwriters
of certificates for the Securities being sold hereunder by such Selling
Stockholder against payment therefor as provided herein, will pass good and
marketable title to such Securities to the several Underwriters, and assuming
that the Underwriters purchased such Securities in good faith and without notice
of an adverse claim within the meaning of the Universal Commercial Code, free
and clear of all liens, encumbrances, equities and claims whatsoever;
(iii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by any Selling
Stockholder of the transactions contemplated herein, except such as may have
been obtained under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals (specified in such
opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by any Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by any Selling Stockholder or the fulfillment of the terms hereof
by any Selling Stockholder will conflict with, result in a breach or violation
of, or constitute a default under any law or [the charter or By-laws of the
Selling Stockholder or] the terms of any indenture or other agreement or
instrument known to such counsel and to which any Selling Stockholder [or any of
its subsidiaries] is a party or bound, or any judgment, order or decree known to
such counsel to be applicable to any Selling Stockholder [or any of its
subsidiaries] of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over any Selling Stockholder [or any of
its subsidiaries].
[(n) Each Selling Stockholder shall have furnished to the Representatives
and the Company a certificate, signed by [the Chairman of the Board or the
President and the principal financial or accounting officer of] such Selling
Stockholder, dated the Closing Date, to the effect that the signer[s] of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplement to the Prospectus and this Agreement and that the representations
and warranties of such Selling Stockholder in this Agreement are true and
correct in all material respects on and as of the Closing Date to the same
effect as if made on the Closing Date.]
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Underwriters and to Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, special counsel for the Underwriters.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to the Representatives or to
counsel for the Underwriters pursuant to this Section 6 shall not be in all
material respects reasonably satisfactory in form and substance to the
Representatives and special counsel for the Underwriters, all of the
Underwriters' obligations hereunder may be cancelled by the Representatives at,
or at any time prior to, the Closing Date. Notice of such cancellation shall be
given to the Company [and each Selling Stockholder] in writing, or by telephone,
telex or telegraph, confirmed in writing.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless (i) each Underwriter,
(ii) each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Underwriter or any controlling person, against any and all losses,
liabilities, claims, damages and out-of-pocket expenses whatsoever (including
but not limited to reasonable attorneys' fees and any and all reasonable
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, investigation or proceeding, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any such person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or in any amendment
thereof, or arise out of or are based upon the omission or alleged omission
therefrom of a material fact necessary to make the statements therein not
misleading or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus, or in any supplement thereto, or arise out of or are based upon
the omission or alleged omission therefrom of a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company will not be liable in
any such case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense are caused by an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with the Underwriter Information; provided, further,
that the Company shall not be liable to any Underwriter or any person set forth
in clauses (ii) and (iii) above with respect to any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary prospectus
to the extent that any such liabilities of an Underwriter result from the fact
that such Underwriter sold Securities to a person as to whom it shall be
established by a court of competent jurisdiction in a final judgment not subject
to appeal or review that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented if the Company has previously furnished copies thereof
to such Underwriter (directly or through the Representatives) and the
liabilities of such Underwriter result from an untrue statement or omission of a
material fact contained in the preliminary prospectus which was corrected in the
Prospectus or in the Prospectus as then amended or supplemented. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have, including under this Agreement.
[(b) Each Selling Stockholder, severally and not jointly, agrees to
indemnify and hold harmless (i) the Company, (ii) each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act and (iii) the respective officers, directors,
partners, employees, representatives and agents of the Company, any controlling
person and each other Selling Stockholder, if any, against any and all losses,
liabilities, claims, damages and expenses whatsoever (including but not limited
to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, or in any amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein not
misleading or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus, or in any supplement thereto, or arise out of or are based upon
the omission therefrom of a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with the Selling
Stockholder Information. This indemnity agreement will be in addition to any
liability which any Selling Stockholder may otherwise have.]
[(c)] Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless (i) the Company, (ii) each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and (iii) the respective officers, directors, partners, employees,
representatives and agents of the Company, any controlling person [and each
Selling Stockholder] against any and all losses, liabilities, claims, damages
and expenses whatsoever (including but not limited to attorneys' fees and any
and all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever and any
and all amounts paid in settlement of any claim
or litigation), joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or in any amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein not
misleading or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus, or in any supplement thereto, or arise out of or are based upon
the omission therefrom of a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with the Underwriter
Information. This indemnity agreement will be in addition to any liability which
the Underwriters may otherwise have, including under this Agreement. The Company
[and the Selling Stockholders] acknowledge[s] that the statements described in
Schedule I to this Agreement constitute the only Underwriter Information.
[(d)] Promptly after receipt by an indemnified party under subsection
[(a)], [(b)] or [(c)] above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent such
indemnifying party has been materially prejudiced by such failure as determined
by a court of competent jurisdiction in a final judgment not subject to appeal
or review). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent it
may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties, it being understood, however, that the indemnifying
parties shall not, in connection with any one such action or separate but
substantially similar related actions arising out of the same general
allegations or circumstances, be liable for fees and expenses of more than one
separate firm of attorneys (in addition to any appropriate local counsel) at any
time for the indemnified parties. Anything in this subsection to the contrary
notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent; provided, however, that such consent was
not unreasonably withheld.
8. CONTRIBUTION. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, then each indemnifying party shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company [or by the Selling
Stockholders], any contribution received by the Company [or by the Selling
Stockholders] from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act and directors of
the Company) to which any indemnifying person may be subject, in such
proportions as is appropriate to reflect the relative benefits received by the
Company[, the Selling Stockholders] and by the Underwriters from the offering of
the Securities or, if such allocation is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company[, the Selling
Stockholders] and of the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company[, and the Selling Shareholders], on the one
hand, and the Underwriters, on the other hand, shall be deemed to be, (x) in the
case of the Company [and the Selling Shareholders], the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company [and the Selling Shareholders] and (y) in the
case of the Underwriters, the underwriting discounts and commissions received by
the Underwriters, respectively, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company [and the Selling
Stockholders], on the one hand, and 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 the Company and [by the
Selling Stockholders, on the one hand, or 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. The Company[, the
Selling Stockholders] and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 8, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount applicable to the
Securities purchased by such Underwriter hereunder, and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and each director of the Company shall have the same rights to
contribution as any, subject in each case to clauses (i) and (ii) of this
Section 8. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties, notify each party or parties from whom contribution may be sought, but
the omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
provided, however, that such consent was not unreasonably withheld.
9. DEFAULT BY AN UNDERWRITER.
(a) If any Underwriter shall default in its obligation to purchase the
Securities hereunder, any other Underwriter may in its discretion arrange for
itself or for another party or parties to purchase such Securities to which such
default relates on the terms contained herein. In the event that within five (5)
calendar days after such a default the Representatives do not arrange for the
purchase of the Securities to which such default relates as provided in this
Section 9, this Agreement shall thereupon terminate, without liability on the
part of the Company [or the Selling Stockholders] with respect thereto (except
in each case as provided in Section 5, 7(a) and 8 hereof) or the non-defaulting
Underwriter, but nothing in this Agreement shall relieve a defaulting
Underwriter of its liability, if any, to the other Underwriters[,] [or] the
Company [or the Selling Stockholders] for damages occasioned by its or their
default hereunder.
(b) In the event that the Securities to which the default relates are to be
purchased by any non-defaulting Underwriter, or are to be purchased by another
party or parties as aforesaid, the Representatives, the Company [or the Selling
Stockholders] shall have the right to postpone the Closing Date for a period,
not exceeding seven (7) business days, in order to effect whatever changes may
thereby be made necessary in the Prospectus or in any other documents and
arrangements. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 9 with like effect as if it had originally
been a party to this Agreement with respect to such Securities.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements of the Underwriters, the Company [and the
Selling Stockholders] contained in this Agreement, including the agreements
contained in Section 5, the indemnity agreements contained in Section 7 and the
contribution agreements contained in Section 8, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Underwriters or any controlling person thereof or by or on behalf of the
Company [, the Selling Stockholders], any of their respective officers and
directors or any controlling person thereof, and shall survive delivery of any
payment for the Securities to and by the Underwriters. The representations
contained in Section 1 and the agreements contained in Sections 5, 7, 8 and
11(c) hereof shall survive the termination of this Agreement including pursuant
to Section 11 hereof.
11. TERMINATION.
(a) The Representatives shall have the right to terminate this Agreement at
any time prior to the Closing Date if (i) any domestic or international event or
act or occurrence has materially disrupted, or in the opinion of the
Representatives will in the immediate future materially disrupt, the market for
the Company's securities or securities in general; or (ii) trading generally on
the New York or American Stock Exchanges shall have been suspended, or minimum
or maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, on the New York or American
Stock Exchanges by the New York or American Stock Exchanges or by order of the
Commission or any other governmental authority having jurisdiction; or (iii) a
general banking moratorium has been declared by New York State, federal or
Bahamian authorities or if any new restriction materially adversely affecting
the distribution of the Securities shall have become effective; or (iv)(A) the
United States becomes engaged in hostilities or there is an escalation of
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States or (B) there shall have been a change in
political, financial or economic conditions if the effect of any such event in
(i) or (ii) is such as in your judgment makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Securities on the terms
contemplated by the Prospectus; or (v) there shall have been any material
adverse change on the properties, results of operations, financial condition or
prospects of the Company and its subsidiaries, taken as a whole, except in each
case as described in or contemplated by the Prospectus.
(b) Any notice of termination pursuant to this Section 11 shall be by
telephone, telex, or telegraph, confirmed in writing by letter.
(c) If this Agreement shall be terminated pursuant to any of the provisions
hereof (otherwise than pursuant to (i) notification by the Representatives as
provided in Section 11(a) hereof or (ii) Section 9(a) hereof), or if the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth herein is not satisfied or because
of any refusal, inability or failure on the part of the Company [or any Selling
Stockholder] to perform any agreement herein or comply with any provision
hereof, the Company will, subject to demand by the Underwriters, reimburse the
Underwriters through the Representatives for all out-of-pocket expenses
(including the fees and expenses of counsel for the Underwriters), incurred by
the Underwriters in connection herewith. [If the Company is required to make any
payments to the Underwriters under this Section 11(c) because of any Selling
Stockholder's refusal, inability or failure to satisfy any condition to the
obligations of the Underwriters set forth in Section 6, the Selling Stockholders
pro rata in proportion to the percentage of Securities to be sold by each shall
reimburse the Company on demand for all amounts so paid.]
12. NOTICE. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and effective only on receipt,
and, if sent to the Company, will be mailed or delivered to Xxxxxxx X. Xxxxx,
Esq., Sun International Hotels Limited, Coral Towers, Paradise Island, The
Bahamas, with a copy to Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, Attention: X. Xxxxxxx Xxxxxxx, Esq; or if sent to any Selling
Stockholder, will be mailed, delivered or telefaxed and confirmed to it at the
address set forth in Schedule III hereto; or if sent to any Underwriter, will be
mailed, faxed or delivered as set forth in Schedule I with a copy to Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP,
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxx, Esq., or in any case to such other address as the person to be
notified may have requested in writing.
13. PARTIES. This Agreement shall inure solely to the benefit of, and shall
be binding upon the Underwriters[,] [and] the Company [and the Selling
Stockholders] and the controlling persons, directors, officers, employees and
agents referred to in Sections 7 and 8, and their respective successors and
assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Securities from an
Underwriter.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT TO ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
16. HEADINGS. The section headings used herein are for convenience and
shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules and
regulations of the Commission promulgated thereunder.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday
which is not a day on which banking institutions in New York, New York or the
New York Stock Exchange are authorized or obligated by law or executive order to
close.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
If the foregoing correctly sets forth the understanding between the
Underwriters and the Company [and the Selling Stockholders], please so indicate
in the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement between us.
Very truly yours,
SUN INTERNATIONAL HOTELS LIMITED
By: __________________________
Name:
Title:
SUN INTERNATIONAL NORTH AMERICA, INC.
By: __________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[REPRESENTATIVES]
By:________________________
Name:
Title:
For each of themselves and the other
several Underwriters named in
Schedule II to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Number of Underwritten Securities to be sold by the Company:
Number of Option Securities:
Price to Public per Share (include accrued dividends, if any):
Price to Public - Total:
Underwriting Discount per Share:
Underwriting Discount - Total:
Proceeds to Company per Share:
Proceeds to Company - Total:
Stock Exchange Listing:
Other provisions:
Persons to deliver letters pursuant to Section 6(l):
Closing Date, Time and Location: , 20___ at 10:00 a.m. at
the offices of Cravath, Swaine & Xxxxx, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Type of Offering: Non-delayed
Date referred to in Section 4(j) after which the Company may offer or sell
Underwritten Securities of the Company or their subsidiaries without the consent
of the Representative(s):
Underwriter Information furnished to the Company through the Representative(s)
for purposes of Section 7(b):
Contact information for notices to Underwriters pursuant to Section 12:
SCHEDULE II
NUMBER OF NUMBER OF OPTION
SECURITIES TO BE SECURITIES TO BE
UNDERWRITER PURCHASED PURCHASED
----------- ---------------- ----------------
Total: $ $
SCHEDULE III
SELLING NUMBER OF UNDERWRITTEN MAXIMUM NUMBER OF OPTION
STOCKHOLDERS SECURITIES TO BE SOLD SECURITIES TO BE SOLD
------------ ---------------------- ------------------------
[name]
[address, fax no.]
[name]
[address, fax no.]
Total: $ $
EXHIBIT A
[Form of Lock-Up Agreement]
[Letterhead of officer, director or major stockholder of
Sun International Hotels Limited]
Sun International Hotels Limited
Public Offering of [Ordinary][Preference] Shares
_______ , 20___
[Representatives]
As Representative[s] of the several Underwriters,
[c/o ]
[Address]
Ladies and Gentleman:
This letter agreement (this "Agreement") relates to the proposed public
offering (the "Offering") by Sun International Hotels Limited, an
international business company organized under the laws of the Commonwealth of
The Bahamas (the "Company"), of its ordinary shares, $.001 par value (the
"Stock").
In order to induce you [and the other underwriters for which you act as
representative[s] (the "Underwriters")] to underwrite the Offering, the
undersigned hereby agrees that, without the prior written consent of Bear,
Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), during the period from the date hereof
until ________ (____) days from the date of the final prospectus for the
Offering (the "Lock-Up Period"), the undersigned (a) will not, directly or
indirectly, offer, sell, agree to offer or sell, solicit offers to purchase,
grant any call option or purchase any put option with respect to, pledge,
borrow or otherwise dispose of any Relevant Security (as defined below), and
(b) will not establish or increase any "put equivalent position" or liquidate
or decrease any "call equivalent position" with respect to any Relevant
Security (in each case within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder), or otherwise enter into any swap, derivative or other transaction
or arrangement that transfers to another, in whole or in part, any economic
consequence of ownership of a Relevant Security, whether or not such
transaction is to be settled by delivery of Relevant Securities, other
securities, cash or other consideration. As used herein "Relevant Security"
means the Stock, any other equity security of the Company or any of its
subsidiaries and any security convertible into, or exercisable or exchangeable
for, any Stock or other such equity security.
The undersigned hereby authorizes the Company during the Lock-Up Period
to cause any transfer agent for the Relevant Securities to decline to
transfer, and to note stop transfer restrictions on the stock register and
other records relating to, Relevant Securities for which the undersigned is
the record holder and, in the case of Relevant Securities for which the
undersigned is the beneficial but not the record holder, agrees during the
Lock-Up Period to cause the record holder to cause the relevant transfer agent
to decline to transfer, and to note stop transfer restrictions on the stock
register and other records relating to, such Relevant Securities. The
undersigned hereby further agrees that, without the prior written consent of
Bear Xxxxxxx, during the Lock-up Period the undersigned (x) will not file or
participate in the filing with the Securities and Exchange Commission of any
registration statement, or circulate or participate in the circulation of any
preliminary or final prospectus or other disclosure document with respect to
any proposed offering or sale of a Relevant Security and (y) will not exercise
any rights the undersigned may have to require registration with the
Securities and Exchange Commission of any proposed offering or sale of a
Relevant Security.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will
execute any additional documents necessary in
connection with enforcement hereof. Any obligations of the undersigned shall
be binding upon the successors and assigns of the undersigned from the date
first above written.1
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. Delivery of a signed copy of this letter by
telecopier or facsimile transmission shall be effective as delivery of the
original hereof.
Very truly yours,
By: _____________________________
Print Name: _______________________
