1
EXHIBIT 1.1
AMDOCS LIMITED
ORDINARY SHARES
(L0.01 PAR VALUE)
-------------------------
UNDERWRITING AGREEMENT
, 1999
Xxxxxxx, Xxxxx & Co.
Banc of America Securities LLC
Deutsche Bank Securities Inc.
Xxxxxx Brothers Inc.
Prudential Securities Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The shareholder named in Schedule II hereto (the "Selling
Stockholder") of Amdocs Limited, a Guernsey corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
18,000,000 Ordinary Shares, Pound Sterling 0.01 par value ("Stock") of the
Company (the "Firm Shares") and, at the election of the Underwriters, up to
2,700,000 additional shares of Stock (the "Optional Shares")(the Firm Shares and
the Optional Shares that the Underwriters elect to purchase pursuant to Section
2 hereof are herein collectively called the "Shares").
1. (a) The Company represents and warrants to, and agrees with, each
of the Underwriters and the Selling Stockholder that:
2
(i) A registration statement on Form F-3 (File No. 333-86609) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto but including
all documents incorporated by reference in the prospectus contained therein, to
you for each of the other Underwriters, have been or will be declared effective
by the Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration Statement"), to
be filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which will become effective upon filing, no other document with
respect to the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed with the Commission; and no stop
order suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (the preliminary prospectus dated , 1999
filed with the Commission pursuant to Rule 424(a) of the rules and regulations
of the Commission under the Act and each preliminary prospectus filed as part of
any subsequent amendment to the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and the
Rule 462(b) Registration Statement, if any, including all exhibits thereto and
including (i) the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part
of the Initial Registration Statement at the time it was declared effective and
(ii) the documents incorporated by reference in the prospectus contained in the
Initial Registration Statement at the time such part of the Initial Registration
Statement became effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "Prospectus"); any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form F-3
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to refer to and include
2
3
any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statement;
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did 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, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein or by the
Selling Stockholder expressly for use in the preparation of the answers therein
to Item 7 of Form F-3;
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder 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;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx, Xxxxx &
Co. expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they became effective or are filed with the Commission, will
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and any
amendment or supplement
3
4
thereto, 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein or by the
Selling Stockholder expressly for use in the preparation of the answers therein
to Item 7 of Form F-3;
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in the
capital stock, net current assets, shareholders' equity or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(vi) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries;
(vii) The Company has been duly incorporated and is validly existing
as a company under the laws of Guernsey, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; the Company has filed its most recent statutory annual return, has
paid all fees due thereon and there are no outstanding unsatisfied judgements
registered in Guernsey against the Company and there are no outstanding
applications, orders or resolutions for the winding-up of the Company; the
Company has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material
4
5
liability or disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing (where applicable) under
the laws of its jurisdiction of incorporation;
(viii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the Stock contained in the
Prospectus; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares and except as set
forth in the Registration Statement) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims; all of
the shares of issued and outstanding capital stock of the Company (including the
Shares) have been duly listed and admitted for trading on the New York Stock
Exchange ("NYSE"); the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to acquire the Shares;
there are no outstanding securities convertible into or exchangeable for, or
warrants, rights or options to purchase from the Company, or obligations of the
Company to issue, the Stock or any other class of capital stock of the Company
(except as set forth in the Prospectus under "Management" and "Principal
Shareholders and Selling Shareholder" ); and there are no restrictions on
subsequent transfers of the Shares under the laws of Guernsey and of the United
States;
(ix) All dividends and other distributions declared and payable on the
shares of capital stock of the Company may under the current laws and
regulations of Guernsey be paid in U.S. dollars that may be freely transferred
out of Guernsey, and all such dividends and other distributions will not be
subject to withholding or other taxes under the current laws and regulations of
Guernsey and are otherwise free and clear of any other tax, withholding or
deduction in Guernsey and without the necessity of obtaining any Governmental
Authorization in Guernsey;
(x) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the Memorandum of Association and the Articles of
Association of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body (hereinafter
5
6
referred to as a "Governmental Agency") having jurisdiction over the Company or
any of its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
Governmental Agency (hereinafter referred to as "Governmental Authorizations")
is required for the sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except (A) the registration under
the Act of the Shares, (B) such Governmental Authorizations as have been duly
obtained and are in full force and effect and copies of which have been
furnished to you and (C) such Governmental Authorizations as may be required
under state securities or Blue Sky laws or any laws of jurisdictions outside
Guernsey and the United States in connection with the purchase and distribution
of the Shares by or for the account of the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in violation
of its constituent documents or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound;
(xii) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(xiii) The statements set forth in the Prospectus under the caption
"Description of Share Capital", insofar as they purport to constitute a summary
of the terms of the Stock, under the caption "Taxation of the Company" and under
the caption "Underwriting", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate, complete and fair;
(xiv) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(xv) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
6
7
(xvi) The Company and each of its subsidiaries have all licenses,
franchises, permits, authorizations, approvals and orders and other concessions
of and from all Governmental Agencies that are necessary to own or lease their
properties and conduct their businesses as described in the Prospectus except
where the failure to have such licenses, franchises, permits, authorizations,
approvals and orders and other concessions would not, singly or in the
aggregate, result in a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of operations
of the Company and its subsidiaries;
(xvii) The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1296 of the United States Internal
Revenue Code of 1986, as amended;
(xviii) The Company and its subsidiaries are in compliance in all
material respects with all conditions and requirements stipulated by the
instruments of approval granted to it with respect to the "Approved Enterprise"
status of any of the Company's Israeli subsidiary's facilities as well as with
respect to the other tax benefits received by the Company's Israeli subsidiary
as set forth under the caption "Taxation of the Company" in the Prospectus and
by Israeli laws and regulations relating to such "Approved Enterprise" status
and the aforementioned other tax benefits received by the Company's Israeli
subsidiary; and neither the Company nor the Israeli subsidiary has received any
notice of any proceeding or investigation relating to revocation or modification
of any "Approved Enterprise" status granted with respect to any of the Israeli
subsidiary's facilities;
(xix) The Company qualifies as an "exempt company" in Guernsey and is
in compliance with all conditions and requirements, whether imposed by
applicable law or otherwise, to the extent necessary to maintain its status as
an exempt company;
(xx) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries and of International
Telecommunication Data Systems, Inc. ("ITDS"), are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xxi) Neither the Company nor any of its affiliates does business
with the government of Cuba within the meaning of Section 517.075, Florida
Statutes; and
(xxii) The Company has reviewed its operations and those of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to which the
business or operations
7
8
of the Company or any of its subsidiaries will be affected by the Year
2000 Problem. As a result of such review, the Company does not believe
that the Year 2000 Problem will have a material adverse effect on the
general affairs, management, the current or future consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries or result in any material loss or
interference with the Company's business or operations. The "Year 2000
Problem" as used herein means any significant risk that computer
hardware or software used in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission or other utilization
of data or in the operation of mechanical or electrical systems of any
kind will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of
dates or time periods occurring prior to January 1, 2000.
(b) The Selling Stockholder represents and warrants to, and agrees
with, each of the Underwriters and the Company that:
(i) All Governmental Authorizations required for the sale
and delivery of the Shares to be sold by the Selling Stockholder
hereunder and for the execution and delivery by the Selling
Stockholder of this Agreement, the Power of Attorney and the Custody
Agreement hereinafter referred to, and for the sale and delivery of
the Shares to be sold by the Selling Stockholder hereunder have been
obtained; and the Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and
Custody Agreement, and to sell, assign, transfer and deliver the
Shares to be sold by the Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by the Selling
Stockholder hereunder and the compliance by the Selling Stockholder
with all of the provisions of this Agreement, the Power of Attorney
and Custody Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound,
or to which any of the property or assets of the Selling Stockholder
is subject, nor will such action result in any violation of the
provisions of the constituent documents of the Selling Stockholder, or
any statute or any order, rule or regulation of any Governmental
Agency having jurisdiction over the Selling Stockholder or the
property of the Selling Stockholder;
(iii) The Selling Stockholder has, and immediately prior to
each Time of Delivery (as defined in Section 4 hereof) the Selling
Stockholder will have, good and valid title to the Shares to be sold
by the Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares
and payment therefor pursuant hereto and thereto, good and valid title
to
8
9
such Shares, free and clear of all liens, encumbrances, equities or claims, will
pass to the several Underwriters;
(iv) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares;
(v) To the extent that any statements made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto are made in reliance upon and in conformity with written
information furnished to the Company by the Selling Stockholder expressly for
use therein, such Preliminary Prospectus and the Registration Statement did, and
the Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading;
(vi) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated, the Selling
Stockholder will deliver to you prior to or at the First Time of Delivery (as
hereinafter defined) a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(vii) Certificates in negotiable form representing all of the Shares
to be sold by the Selling Stockholder hereunder have been placed in custody
under a Custody Agreement (the "Custody Agreement"), in the form heretofore
furnished to you, duly executed and delivered by the Selling Stockholder to the
party designated in Schedule II hereto as the Selling Stockholder's custodian
(the "Custodian"), and the Selling Stockholder has duly executed and delivered a
Power of Attorney (the "Power of Attorney"), in the form heretofore furnished to
you, appointing the persons indicated in Schedule II hereto, and each of them,
as the Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with
authority to execute and deliver this Agreement on behalf of the Selling
Stockholder, to determine the purchase price to be paid by the Underwriters to
the Selling Stockholder as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by the Selling Stockholder hereunder and
otherwise to act on behalf of the Selling Stockholder in connection
9
10
with the transactions contemplated by this Agreement and the Custody
Agreement; and
(viii) The Shares represented by the certificates held in
custody for the Selling Stockholder under the Custody Agreement are
subject to the interests of the Underwriters hereunder; the
arrangements made by the Selling Stockholder for such custody, and the
appointment by the Selling Stockholder of the Attorneys-in-Fact by the
Power of Attorney, are to that extent irrevocable; the obligations of
the Selling Stockholder hereunder shall not be terminated by operation
of law, whether by the dissolution of the Selling Stockholder or by
the occurrence of any other event; if the Selling Stockholder should
be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of the Selling Stockholder in
accordance with the terms and conditions of this Agreement and of the
Custody Agreement; and actions taken by the Attorneys-in-Fact pursuant
to the Power of Attorney shall be as valid as if such dissolution or
other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have received
notice of such dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) the
Selling Stockholder agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Selling
Stockholder, at a purchase price per Share of $ , the number of Firm Shares (to
be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Selling
Stockholder by a fraction, the numerator of which is the aggregate number of
Firm Shares to be purchased by such Underwriter as set forth opposite the name
of such Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Firm Shares to be purchased by all of the Underwriters from
the Selling Stockholder hereunder and (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional Shares as
provided below, the Selling Stockholder agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Selling Stockholder, at the purchase price per Share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Selling Stockholder hereby grants to the Underwriters the right to
purchase at their election up to Optional Shares, at the purchase
price per Share set forth in the paragraph above, for the sole purpose of
covering sales of shares in excess of the number of Firm Shares. Any such
election to purchase Optional Shares may be exercised only by written notice
from you
10
11
to the Attorneys-in-Fact, given within a period of 30 calendar days after the
date of this Agreement and setting forth the aggregate number of Optional Shares
to be purchased and the date on which such Optional Shares are to be delivered,
as determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Attorneys-in-Fact otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours'
notice to the Company and the Selling Stockholder and the Custodian prior to a
Time of Delivery (as defined below) (the "Notification Time"), shall be
delivered by or on behalf of the Selling Stockholder to Xxxxxxx, Sachs & Co.,
for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Selling Stockholder to Xxxxxxx,
Xxxxx & Co. at least forty-eight hours in advance. The Company and the Selling
Stockholder will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of
Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated
Office").
The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on , 1999 or such other
time and date as Xxxxxxx, Sachs & Co. and the Company and the Attorneys-in-Fact
may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m.,
New York City time, on the date specified by Xxxxxxx, Xxxxx & Co. in the written
notice given by Xxxxxxx, Sachs & Co. of the Underwriters' election to purchase
such Optional Shares, or such other time and date as Xxxxxxx, Xxxxx & Co. and
the Company and the Attorneys-in-Fact may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(p) hereof, will be delivered at the offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Closing Location"), and the Shares will be delivered as
specified in Section 4(a) above, all at such Time of Delivery. A meeting will be
held at the Closing Location at 4:30 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this Section
4, "New York Business Day" shall
11
12
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or obligated by
law or executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and
to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you
copies thereof; to file promptly all reports required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c) or
15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Shares; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(ii) Promptly from time to time to take such action as you
may reasonably request to qualify the Shares for offering and sale
under the securities laws of such jurisdictions as you may request and
to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in
connection therewith 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;
(iii) Prior to 10:00 A.M., New York City time, on the New
York Business Day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any
12
13
time prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Shares and if at such
time any events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act or the Exchange Act, to notify you and upon your
request to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Shares at any time nine months or more after
the time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(iv) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(v) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to offer,
sell, contract to sell or otherwise dispose of, except as provided hereunder,
any securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock or stock
option plans existing on the date of this Agreement and stock option plans
entered into after the date hereof under which options which are granted will
not be exercisable until 91 days after the date of the Prospectus), without your
prior written consent;
(vi) To furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants and
prepared in conformity with generally accepted accounting principles in the U.S.
("GAAP")) and to make
13
14
available to its shareholders, as soon as practicable after the end of
each of the first three quarters of each fiscal year prepared in
accordance with GAAP (beginning with the fiscal quarter ending after
the effective date of the Registration Statement), consolidated
summary financial information of the Company and its subsidiaries for
such quarter in reasonable detail;
(vii) During a period of five years from the effective date
of the Registration Statement, to furnish to you copies of all reports
or other communications (financial or other) furnished to
shareholders, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its shareholders generally or to the Commission);
(viii) Not to (and to cause its subsidiaries not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company or facilitate the sale or resale or the Shares;
(ix) To use its best efforts to list the Shares on the NYSE;
and
(x) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act.
(b) The Selling Stockholder agrees with each of the Underwriters:
(i) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially
similar securities (other than pursuant to employee stock option plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent; provided, however,
that the Selling Stockholder may sell or transfer Stock or any
securities of the Company that
14
15
are substantially similar to the Stock (i) to the shareholders of the
Selling Stockholder or to trusts for the benefit of such shareholders
or members of the family of a shareholder or (ii) by way of gift or
donation, provided that in each case the transferee thereof undertakes
in writing to comply with the foregoing restrictions; and
(ii) Not to (and to cause its affiliates not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company or facilitate the sale or resale of the Shares.
6. The Company covenants and agrees with the several Underwriters that
it will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(a)(ii) hereof, including the fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on the NYSE; (v) the cost of
preparing stock certificates; (vi) the cost and charges of any transfer agent or
registrar; (vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section and (viii) all costs and expenses incident to the performance of the
Selling Stockholder's obligations hereunder which are not otherwise specifically
provided for in this Section, including (1) any fees and expenses of counsel for
the Selling Stockholder, (2) the fees and expenses of the Attorneys-in-Fact and
the Custodian and (3) all expenses and taxes incident to the sale and delivery
of the Shares to be sold by the Selling Stockholder to the Underwriters
hereunder. In connection with clause (viii)(3) of the preceding sentence,
Xxxxxxx, Sachs & Co. agrees to pay New York State stock transfer tax, and the
Company agrees to reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs
if such tax payment is not rebated on the day of payment and for any portion of
such tax payment not rebated. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholder herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
15
16
Stockholder shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a)(i) hereof; if the Company has elected to
rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
the Underwriters, shall have furnished to you such written opinion or
opinions, dated such Time of Delivery, in form and substance
satisfactory to you, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
(c) Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol, counsel
for the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex III(a) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in the United States in which it
owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you
and they are justified in relying upon such opinions and
certificates);
(ii) Each U.S. subsidiary of 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 all of the
issued shares of capital stock of each such subsidiary have been duly
and validly authorized and issued, are fully paid and non-assessable,
and (except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of
16
17
officers of the Company or its subsidiaries, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(iii) This Agreement has been duly executed and delivered by
the Company;
(iv) The statements in the Prospectus under "Comparison of
United States and Guernsey Corporate Law" to the extent such
statements relate to matters of United States law or regulation or to
the provisions of documents therein described, are accurate, complete
and fair in all material respects, and nothing has been omitted from
such statements which would make the same misleading in any material
respect;
(v) None of the Company's U.S. subsidiaries are in violation
of their respective constituent documents or, to the best of such
counsel's knowledge, in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which any of them is a party or by which
any of them or any of their properties may be bound;
(vi) The statements set forth in the Prospectus under the
captions "Underwriting" and "Taxation of Holders of Ordinary Shares",
insofar as they purport to describe provisions of United States
federal or New York law and documents referred to therein, are
accurate, complete and fair in all material respects;
(vii) Under the laws of the State of New York relating to
personal jurisdiction, the Company has, pursuant to Section 14 of this
Agreement, validly and irrevocably submitted to the personal
jurisdiction of any state or federal court located in the Borough of
Manhattan, The City of New York, New York (each a "New York Court") in
any action arising out of or relating to this Agreement or the
transactions contemplated hereby, has validly and irrevocably waived
any objection to the venue of a proceeding in any such court, and has
validly and irrevocably appointed the Authorized Agent (as defined
herein) as its authorized agent for the purpose described in Section
14 hereof; and service of process effected on such agent in the manner
set forth in Section 14 hereof will be effective insofar as the law of
the State of New York is concerned to confer valid personal
jurisdiction over the Company;
(viii) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending in any United States federal or state
court to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries,
17
18
would individually or in the aggregate be reasonably likely to have a
material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by any
Governmental Agency or threatened by others;
(ix) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which the
Company or any of the Company's U.S. subsidiaries is a party or by
which the Company or any of the Company's U.S. subsidiaries is bound
or to which any of the property or assets of the Company or any of
such subsidiaries is subject, nor will such action result in any
violation of any statute or any order, rule or regulation known to
such counsel of any United States Federal or New York Governmental
Agency having jurisdiction over the Company or any of its subsidiaries
or any of their properties;
(x) No Governmental Authorization of the United States or
the State of New York is required for the sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares, and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by
the Underwriters or which have been obtained and are in full force and
effect;
(xi) The Company is not an "investment company", as such
term is defined in the Investment Company Act;
(xii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data derived from
the Company's accounting records contained therein, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, appeared on their face
to be appropriately responsive in all material respects to the
requirements of the Exchange Act and the rules and regulations
promulgated thereunder; and they have no reason to believe that any of
such documents, when such documents became effective or were so filed,
as the case may be, contained, in the case of a registration statement
which became effective under the Act, 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, in the case of other documents which were filed under
the Exchange Act with the Commission, an untrue statement
18
19
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xiii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
related schedules and other financial data derived from the Company's
accounting records contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsections (iv) and (vi) of this Section 7(c), they
have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data derived from
the Company's accounting records contained therein, as to which such
counsel need express no opinion) 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, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
and other financial data derived from the Company's accounting records
contained therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial data
derived from the Company's accounting records contained therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or required to
be incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are
not filed or incorporated by reference or described as required;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
19
20
(d) Xxxxx Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex III(b) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a company under the laws of Guernsey, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company has filed its
most recent statutory annual return, has paid all fees due thereon and
there are no outstanding unsatisfied judgements registered in Guernsey
against the Company and there are no outstanding applications, orders
or resolutions for the winding-up of the Company;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company (including the Shares) have been duly and validly
authorized and issued and are fully paid and non-assessable; the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to acquire the Shares to be
purchased from the Selling Stockholder under this Agreement which have
not been complied with; there are no restrictions on subsequent
transfers of the Shares; and the Shares conform to the description of
the Stock contained in the Prospectus;
(iii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending in Guernsey to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(iv) This Agreement has been duly authorized by the Company;
(v) The compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not result in any violation of the provisions of the
Memorandum of Association and Articles of Association of the Company
or any Guernsey statute or any order, rule or regulation known to such
counsel of any Governmental Agency in Guernsey having jurisdiction
over the Company or any of its properties;
20
21
(vi) No Governmental Authorization of or with any
Governmental Agency is required in Guernsey for the sale of the Shares
or the consummation by the Company of the transactions contemplated by
this Agreement, except any such consents, approvals, authorizations or
orders which have been duly obtained and are in full force and effect;
(vii) The statements in the Prospectus under "Comparison of
United States and Guernsey Corporate Law" to the extent such
statements relate to matters of Guernsey law or regulation or to the
provisions of documents therein described, are accurate, complete and
fair in all material respects, and nothing has been omitted from such
statements which would make the same misleading in any material
respect;
(viii) Insofar as matters of Guernsey law are concerned, the
Registration Statement and the filing of the Registration Statement
with the Commission have been duly authorized by and on behalf of the
Company; and the Registration Statement has been duly executed
pursuant to such authorization by and on behalf of the Company;
(ix) The Company's agreement to the choice of law provisions
set forth in Section 14 hereof will be recognized by the courts of
Guernsey; the Company can xxx and be sued in its own name under the
laws of Guernsey; the irrevocable submission of the Company to the
exclusive jurisdiction of a New York Court, the waiver by the Company
of any objection to the venue of a proceeding of a New York Court and
the agreement of the Company that this Agreement shall be governed by
and construed in accordance with the laws of the State of New York are
legal, valid and binding; service of process effected in the manner
set forth in Section 14 hereof will be effective, insofar as the law
of Guernsey is concerned, to confer valid personal jurisdiction over
the Company; and judgment obtained in a New York Court arising out of
or in relation to the obligations of the Company under this Agreement
would be enforceable against the Company in the courts of Guernsey;
(x) The indemnification and contribution provisions set
forth in Section 8 hereof do not contravene any statute or any express
statement of the public policy or laws of Guernsey;
(xi) All dividends and other distributions declared and
payable on the shares of capital stock of the Company may be paid in
U.S. dollars under the current laws and regulations of Guernsey and
may be freely transferred out of Guernsey, and all such dividends and
other distributions will not be subject to withholding or other taxes
under the current laws and regulations of Guernsey and are otherwise
free and clear of any other tax, withholding or deduction in Guernsey
and without the necessity of obtaining any Governmental Authorization
in Guernsey; and
21
22
(xii) The statements set forth in the Prospectus under the
caption "Description of Share Capital", insofar as they purport to
constitute a summary of the terms of the Stock, and under the captions
"Taxation of the Company" and "Taxation of Holders of Ordinary
Shares", insofar as they purport to describe the provisions of
Guernsey law and documents referred to therein, are accurate, complete
and fair;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Guernsey;
(e) Meitar, Liquornik, Geva & Co., special Israeli counsel
for the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex III(c) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company's Israeli subsidiary has been duly
incorporated and is validly existing under the laws of Israel, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and all of the
issued shares of capital stock of such subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable, and
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims, except for 32,068 Ordinary C
Shares owned by Xxxx Xxxxx;
(ii) Any buildings held under lease by such subsidiary are
held by it under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by such
subsidiary (in giving the opinion in this clause, such counsel may
state that no examination of record titles for the purpose of such
opinion has been made, and that they are relying upon a general review
of the titles of such subsidiary, upon opinions of counsel to the
lessors of such property and, in respect of matters of fact, upon
certificates of officers of such subsidiary, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions, abstracts, reports, policies
and certificates);
(iii) Other than as set forth in the Prospectus, to the best
of such counsel's knowledge, there are no legal or governmental
proceedings pending to which the Company's Israeli subsidiary is a
party or of which any property of the Company's Israeli subsidiary is
the subject which, if determined adversely to such subsidiary, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders'
equity or results of operations of such subsidiary; and, to the best
of such counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
22
23
(iv) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any of the agreements set forth on Schedule 1 to such
counsel's opinion, nor will such action result in any violation of the
provisions of the constituent documents of such subsidiary or any
statute or any order, rule or regulation known to such counsel of any
Israeli Governmental Agency having jurisdiction over the Company's
Israeli subsidiary or any of its properties;
(v) No Governmental Authorization of or with any
Governmental Agency is required in Israel for the sale of the Shares
or the consummation by the Company of the transactions contemplated by
this Agreement, except any such consents, approvals, authorizations or
orders which have been duly obtained and are in full force and effect;
(vi) The Company's Israeli subsidiary has all licenses and
concessions of and from all Governmental Agencies that are necessary
to own or lease its properties and conduct its businesses as described
in the Prospectus; and the Company's Israeli subsidiary has all
franchises, permits, authorizations, approvals and orders and other
licenses and concessions of and from all Governmental Agencies that
are necessary to own or lease its other properties and conduct its
businesses as described in the Prospectus except for such licenses,
franchises, permits, authorizations, approvals and orders the failure
to obtain which will not have a material adverse effect on the
financial condition or results of operations of the Company and its
subsidiaries;
(vii) To the best of such counsel's knowledge, the Company's
Israeli subsidiary is not in violation of its constituent documents or
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any of the
agreements set forth on Schedule 1 to such counsel's opinion;
(viii) The statements set forth in the Prospectus under the
caption "Taxation of the Company", insofar as they purport to describe
the provisions of Israeli law and documents referred to therein, are
accurate, fair and complete in all material respects;
(ix) To the best knowledge of such counsel, the Company and
its Israeli subsidiary are in compliance in all material respects with
all conditions and requirements stipulated by the instruments of
approval granted to it with respect to the "Approved Enterprise"
status of any of the Company's Israeli subsidiary's facilities as well
as with respect to the other tax benefits received by the Company's
23
24
Israeli subsidiary as set forth under the caption "Taxation of the
Company" in the Prospectus and by Israeli laws and regulations
relating to such "Approved Enterprise" status and the aforementioned
other tax benefits received by the Company's Israeli subsidiary; and,
to the best knowledge of such counsel, neither the Company nor the
Israeli subsidiary has received any notice of any proceeding or
investigation relating to revocation or modification of any "Approved
Enterprise" status granted with respect to any of the Israeli
subsidiary's facilities;
(x) Such counsel have no reason to believe that any of the
documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
and other financial data derived from the Company's accounting records
contained therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, contained, in the case of a registration statement which
became effective under the Act, 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, in the
case of other documents which were filed under the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading; and
(xi) Although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (viii) of this Section 7(e), they have no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
related schedules and other financial data derived from the Company's
accounting records contained therein, as to which such counsel need
express no opinion) 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, as of
its date, the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and other financial
data derived from the Company's accounting records contained therein,
as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as
of such Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules and other
24
25
financial data derived from the Company's accounting records contained
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Israel;
(f) Olswang, special U.K. counsel for the Company, shall
have furnished to you their written opinion (a draft of such opinion
is attached as Annex III(d) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company's U.K. subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of the U.K., with power and authority (corporate and
other) to own their properties and conduct their business as described
in the Prospectus; and all of the issued shares of capital stock of
each such subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable, and (except for directors'
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(ii) Having searched its computer records, such counsel is
not currently acting in relation to any pending legal or governmental
proceedings to which the Company's U.K. subsidiaries are a party or of
which any property of the Company's U.K. subsidiaries are the subject;
and, the chief executive officers of each of the Company's U.K.
subsidiaries have certified to such counsel that, to the best of their
knowledge, no such proceedings are threatened or pending;
(iii) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument reviewed by such counsel to which the
Company's U.K. subsidiaries are a party or by which the Company's U.K.
subsidiaries are bound or to which any of the property or assets of
the Company or such subsidiaries are subject, nor will such action
result in any violation of the provisions of the constituent documents
of such subsidiaries or any statute or any order, rule or regulation
known to such counsel of any U.K. Governmental Agency having
jurisdiction over the Company's U.K. subsidiaries or any of their
properties; and, the chief executive officers of each of the Company's
U.K. subsidiaries have certified to such counsel
25
26
that, to the best of their knowledge, there are no such material
agreements (other than those which have been reviewed by such
counsel);
(iv) No Governmental Authorization of or with any
Governmental Agency is required in the U.K. for the sale of the Shares
or the consummation by the Company of the transactions contemplated by
this Agreement, except any such consents, approvals, authorizations or
orders which have been duly obtained and are in full force and effect;
and
(v) The Company's U.K. subsidiaries have all powers and
licenses necessary to own or lease their properties and conduct their
businesses as described in the Prospectus; and the Company's U.K.
subsidiaries have all franchises, permits, authorizations, approvals
and orders and other licenses and concessions of and from all
Governmental Agencies that are necessary to own or lease its other
properties and conduct its businesses as described in the Prospectus
except for such licenses, franchises, permits, authorizations,
approvals and orders the failure to obtain which will not have a
material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the U.K.;
(g) Xxxxx Xxxxxxxx, counsel for the Selling Stockholder,
shall have furnished to you their written opinion (a draft of such
opinion is attached as Annex III(e) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Power of Attorney and a Custody Agreement have been
duly executed and delivered by the Selling Stockholder and constitute
valid and binding agreements of the Selling Stockholder in accordance
with their terms;
(ii) This Agreement has been duly executed and delivered by
or on behalf of the Selling Stockholder; and the sale of the Shares to
be sold by the Selling Stockholder hereunder and the compliance by the
Selling Stockholder with all of the provisions of this Agreement, the
Power of Attorney and the Custody Agreement and the consummation of
the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any terms or provisions of,
or constitute a default under, any statute, indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to
such counsel to which the Selling Stockholder is a party or by which
the Selling Stockholder is bound, or to which any of the property or
assets of the Selling Stockholder is subject, nor will such action
result in any violation of the provisions of the constituent documents
of the Selling Stockholder or any order, rule or regulation known to
such counsel of any
26
27
court or governmental agency or body having jurisdiction over the Selling
Stockholder or the property of the Selling Stockholder;
(iii) No Governmental Authorization of or with any Governmental Agency
in Guernsey is required for the consummation of the transactions contemplated by
this Agreement in connection with the Shares to be sold by the Selling
Stockholder hereunder except such consents, approvals, authorizations or orders
which have been duly obtained and are in full force and effect, such as have
been obtained under the Act and such as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of such Shares
by the Underwriters;
(iv) Immediately prior to such Time of Delivery, the Selling
Stockholder had good and valid title to the Shares to be sold at such Time of
Delivery by the Selling Stockholder under this Agreement, free and clear of all
liens, encumbrances, equities or claims, and full right, power and authority to
sell, assign, transfer and deliver the Shares to be sold by the Selling
Stockholder hereunder;
(v) Good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, has been transferred to each of the several
Underwriters, who have purchased such Shares in good faith and without notice of
any such lien, encumbrance, equity or claim or any other adverse claim within
the meaning of the Uniform Commercial Code;
(vi) The Selling Stockholder's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized by the courts of
Guernsey; the Selling Stockholder can xxx and be sued in its own name under the
laws of Guernsey; the irrevocable submission of the Selling Stockholder to the
exclusive jurisdiction of a New York Court, the waiver by the Selling
Stockholder of any objection to the venue of a proceeding of a New York court
and the agreement of the Selling Stockholder that this Agreement shall be
governed by and construed in accordance with the laws of the State of New York
are legal, valid and binding; service of process effected in the manner set
forth in Section 14 hereof will be effective, insofar as the laws of Guernsey
are concerned, to confer valid personal jurisdiction over the Selling
Stockholder; and judgment obtained in a New York court arising out of or in
relation to the obligations of the Selling Stockholder under this Agreement
would be enforceable against the Selling Stockholder in the courts of Guernsey;
(vii) Although such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, such counsel has no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of Delivery (other than
the financial statements
27
28
and related schedules and other financial data derived from the
Company's accounting records contained therein, as to which such
counsel need express no opinion) 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, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
and other financial data derived from the Company's accounting records
contained therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial data
derived from the Company's accounting records contained therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement
or the Prospectus which are not filed or incorporated by reference or
described as required.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Guernsey, in rendering the
opinion in subparagraph (iv) such counsel may rely upon a certificate of the
Selling Stockholder in respect of matters of fact as to ownership of and liens,
encumbrances, equities or claims on, the Shares sold by the Selling Stockholder,
provided that such counsel shall state that he believes that both you and he are
justified in relying upon such certificate and in making the statement in
paragraph (vii) such counsel may limit the scope of its statement to the extent
that any statements made in the Registration Statement and the Prospectus and
any further amendments and supplements thereto are made by the Company prior to
such Time of Delivery in reliance upon and in conformity with written
information furnished to the Company by the Selling Stockholder;
(h) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Ernst & Young LLP shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is
28
29
attached as Annex I(a) hereto and a draft of the form of letter to be delivered
on the effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b) hereto);
(i) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Ernst & Young LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex II hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex II(a) hereto and a draft of the
form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex II(b) hereto);
(j) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the capital stock, net current assets, shareholders' equity or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(k) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(l) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the NYSE; (ii) a suspension or material limitation in trading in
the Company's
29
30
securities on the NYSE; (iii) a general moratorium on commercial
banking activities in New York, London or Israel declared by the
relevant authorities; (iv) a change or development involving a
prospective change in Guernsey taxation affecting the Company, the
Shares or the transfer thereof or the imposition of exchange controls
by the United States or Guernsey; or (v) the outbreak or escalation of
hostilities involving the United States, the United Kingdom or Israel
or the declaration by the United States, the United Kingdom or Israel
of a national emergency or war, if the effect of any such event
specified in this clause (v) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus
or (vi) the occurrence of any material adverse change in the existing
financial, political or economic conditions in the United States, the
United Kingdom or Israel or elsewhere which, in the judgment of the
Representatives, would materially and adversely affect the financial
markets or the market for the Shares and other equity securities;
(m) The Shares to be sold by the Selling Stockholder at such
Time of Delivery shall have been duly listed, subject to notice of
issuance, on the NYSE;
(n) The Company shall have complied with the provisions of
Section 5(a)(iii) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of
this Agreement;
(o) The Company has obtained and delivered to the
Underwriters executed copies of an agreement from each person who is a
director or officer of the Company and such of its shareholders as
have been heretofore designated by you and listed on Schedule III
attached hereto, to the effect set forth in Subsection 5(b)(i) hereof
in form and substance satisfactory to you; and
(p) The Company and the Selling Stockholder shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and the Selling Stockholder
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholder herein at and as
of such Time of Delivery, as to the performance by the Company and the
Selling Stockholder of all of their respective obligations hereunder
to be performed at or prior to such Time of Delivery, and as to such
other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (j) of this Section, and as
to such other matters as you may reasonably request.
8. (a) The Company and the Selling Stockholder, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such
30
31
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Selling Stockholder shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or the Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Sachs & Co.
expressly for use therein; and will reimburse the Company and the Selling
Stockholder for any legal or other expenses reasonably incurred by the Company
or the Selling Stockholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party
31
32
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholder on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the Company and the
Selling Stockholder bear to the total underwriting discount received by the
Underwriters with respect to the Shares purchased under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault 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
or the Selling Stockholder on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the Selling
Stockholder and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
32
33
defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. 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. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Stockholder under
this Section 8 shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his or her
consent, is named in the Registration Statement as about to become a director of
the Company) and to each person, if any, who controls the Company or the Selling
Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Stockholder shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholder
that you have so arranged for the purchase of such Shares, or the Selling
Stockholder notifies you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholder shall have the right to postpone such
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholder as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all of the Shares to be purchased at such Time of Delivery, then the
Selling Stockholder shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such
33
34
Time of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholder as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholder shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholder to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholder, except for the expenses to be borne by the Company
and the Selling Stockholder and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholder and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or the Selling Stockholder, or any officer or
director or controlling person of the Company, or any controlling person of the
Selling Stockholder, and shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Selling Stockholder shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Stockholder as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholder shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with the Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely only upon any statement,
request, notice or agreement
34
35
on behalf of the Selling Stockholder made or given by any or all of the
Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to the Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to the Selling Stockholder at its address set
forth in Schedule ll hereto; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the Company in care of Amdocs, Inc.
0000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx, 00000, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8 (d) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Stockholder by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholder and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, the Selling Stockholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal
suit, action or proceeding against the Company or the Selling Stockholder
brought by any Underwriter or by any person who controls any Underwriter arising
out of or based upon this Agreement or the transactions contemplated hereby may
be instituted in any New York Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. Each of the
Company and the Selling Stockholder has appointed Amdocs Inc. as its authorized
agent (the "Authorized Agent") upon whom process may be served in any such
action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. Each of the Company and the
Selling Stockholder represents and warrants that the Authorized Agent has agreed
to act as such agent for service of process and agrees to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the
35
36
Company shall be deemed, in every respect, effective service of process
upon the Company and the Selling Stockholder, as the case may be.
15. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Stockholder, as
the case may be, will indemnify each Underwriter against any loss incurred by
such Underwriter as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (ii) the rate of exchange
at which an Underwriter is able to purchase United States dollars with the
amount of the judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and the Selling Stockholder and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
36
37
If the foregoing is in accordance with your understanding, please sign
and return to us twelve counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and the Selling Stockholder. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Stockholder for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact
for the Selling Stockholder represents by so doing that he has been duly
appointed as Attorney-in-Fact by the Selling Stockholder pursuant to a validly
existing and binding Power of Attorney which authorizes such Attorney-in-Fact to
take such action.
Very truly yours,
Amdocs Limited
By:
----------------------------------------
Name:
Title:
Amdocs International Limited
By:
----------------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Banc of America Securities LLC
Deutsche Bank Securities Inc.
Xxxxxx Brothers Inc.
Prudential Securities Incorporated
By:
----------------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
38
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
-------------------------------------------------------------- ----------------------- -----------------------
Xxxxxxx, Sachs & Co...........................................
Banc of America Securities LLC................................
Deutsche Bank Securities Inc..................................
Xxxxxx Brothers Inc...........................................
Prudential Securities Incorporated............................
Total ======================= =======================
39
SCHEDULE II
Selling Stockholder:
Amdocs International Limited
[address]
Custodian:
[American Stock Transfer]
Attorney-in-Fact:
[to come]
39
40
SCHEDULE III
[to come]
40
41
ANNEX I
Pursuant to Section 7(h) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements examined by
them and included or incorporated by reference in the Prospectus or
the Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of operations,
consolidated balance sheets, consolidated statement of changes in
shareholders' equity and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's Current
Report on Form 6-K incorporated by reference into the Prospectus; and
on the basis of specified procedures including inquiries of officials
of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (v)(1)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that caused
them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(iv) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Item 8 of Form 20-F and of Regulation S-K;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
41
42
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
1) (i) the unaudited consolidated statements of operations,
consolidated balance sheets, consolidated statement of changes in
shareholders' equity and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by
reference in an interim report on Form 6-K incorporated by reference
in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
consolidated statements of operations, consolidated balance sheets,
consolidated statement of changes in shareholders' equity and
consolidated statements of cash flows included in the Prospectus or
included in an interim report on Form 6-K incorporated by reference in
the Prospectus for them to be in conformity with generally accepted
accounting principles;
2) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included in the Prospectus or
incorporated by reference in the Company's Annual Report on Form 20-F
for the most recent fiscal year;
3) the unaudited financial statements which were not
included in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in Clause (1) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (2) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus or
incorporated by reference in the Company's Annual Report on Form 20-F
for the most recent fiscal year;
42
43
4) as of , 1999, there have been any changes in the
consolidated capital stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest financial
statements included in the Prospectus or incorporated by reference in
the Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated net
current assets or shareholders' equity, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
5) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (4) there were any decreases
in consolidated net revenues or the total or per share amounts of
consolidated net income, in each case as compared with the comparable
period of the preceding year, except in each case for decreases or
increases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vi) Although they are unable to and do not express any opinion on the
pro forma consolidated financial statements of operations (the "Pro Forma
Statements"), included in the Prospectus or on the pro forma adjustments applied
to the historical amounts included in the Pro Forma Statements; for purposes of
this letter they have performed the following procedures:
1) read the Pro Forma Statements;
2) performed an audit of the financial statements to which the
pro forma adjustments were applied;
3) made inquires of certain officials of the Company who have
responsibility for financial and accounting matters about
the basis for their determination of the pro forma
adjustments and whether the Pro Forma Statements comply as
to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X; and
43
44
4) proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the Pro Forma
Statements; and on the basis of such procedures and such
other inquiries and procedures as specified herein, nothing
came to their attention that caused them to believe that (i)
the Pro Forma Statements included in the Prospectus do not
comply as to form in all material respects with the
applicable requirements of Rule 11-02 of Regulations S-X or
(ii) the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of
those statements.
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in paragraphs (iii) and (v) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives, which are derived from
the general accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or in Part II
of, or in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
1
45
ANNEX II
Pursuant to Section 7(i) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and ITDS and its subsidiaries within the
meaning of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of operations,
consolidated balance sheets, consolidated statement of changes in
shareholders' equity and consolidated statements of cash flows of ITDS
included in the Prospectus; and on the basis of specified procedures
including inquiries of officials of ITDS who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(iv)(1)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published rules and regulations;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of ITDS and its subsidiaries, inspection
of the minute books of ITDS and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus,
inquiries of officials of ITDS and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
1) (i) the unaudited consolidated statements of
operations, consolidated balance sheets, consolidated
statement of changes in shareholders' equity and
consolidated statements of cash flows of ITDS included in
the Prospectus do not comply as to form in
2
46
all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations, or
(ii) any material modifications should be made to the unaudited
consolidated statements of operations, consolidated balance
sheets, consolidated statement of changes in shareholders' equity
and consolidated statements of cash flows of ITDS included in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
2) as of , 1999, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon conversions
of convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or any increase in the consolidated long-term debt of
ITDS and its subsidiaries, or any decreases in consolidated net
current assets or shareholders' equity, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
3) for the period from the date of the latest
financial statements of ITDS included in the Prospectus to the
specified date referred to in Clause (2) there were any decreases
in consolidated net revenues or the total or per share amounts of
consolidated net income, in each case as compared with the
comparable period of the preceding year, except in each case for
decreases or increases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(v) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and (iv)
above, they have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified by
the Representatives, which are derived from the general accounting records of
ITDS and its subsidiaries, which appear in the Prospectus, or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of ITDS and its subsidiaries
and have found them to be in agreement.
