EXHIBIT 1
ORIENT-EXPRESS HOTELS LTD.
(a Bermuda company)
9,903,300 Class A Common Shares
(par value $.01 each)
SALES AGREEMENT
_____________, 2005
[Name and Address of Sales Agent]
Ladies and Gentlemen:
Orient-Express Hotels Ltd., a company incorporated in Bermuda ("OEH"), and
Sea Containers Ltd., a company incorporated in Bermuda (the "Selling
Shareholder"), confirm their agreement with you with respect to the offer and
sale by the Selling Shareholder of up to 9,903,300 shares (the "Shares") of the
class A common shares, par value $.01 each, of OEH (the "Class A Shares"). The
Shares include 2,459,399 Class A Shares issuable upon conversion of 2,459,399
class B common shares, par value $.01 each, of OEH (the "Class B Shares") owned
by the Selling Shareholder.
Subject to the terms and conditions stated herein, the Selling Shareholder
hereby (i) appoints you as its agent for the purpose of selling any or all of
the Shares in accordance with the provisions of paragraph 2(a) hereof, and (ii)
agrees that whenever the Selling Shareholder determines to sell Shares directly
to you as principal for resale to others, it will enter into a Terms Agreement
relating to such sale in accordance with the provisions of paragraph 2(b)
hereof.
Each Share includes a right (a "Right") to purchase, under certain
circumstances, one one-hundredth of a series A junior participating preferred
share of OEH (a "Preferred Share"), subject to adjustment. The Rights are being
issued pursuant to a Rights Agreement dated as of June 1, 2000, between OEH and
EquiServe Trust Company N.A. (successor to Fleet National Bank), as rights agent
(the "Rights Agreement").
OEH has on file with the United States Securities and Exchange Commission
(the "Commission") an effective registration statement on Form S-3 (Registration
No. 333-102576), relating to the offer and sale of the Shares by the Selling
Shareholder from time to time in accordance with Rule 415(a)(1)(i) under the
United States Securities Act of 1933 (the "1933 Act"). Such registration
statement, including the exhibits thereto, at the time the last filed
post-effective amendment thereto becomes effective, is hereinafter called the
"Registration Statement," and the prospectus constituting Part I of the
Registration Statement is hereinafter called the "Prospectus," except that (a)
if an amended Prospectus or Prospectus supplement is filed by OEH pursuant to
Rule 424(b) under the 1933 Act, the term "Prospectus" will mean the last such
amendment or supplement, and (b) whenever OEH files any report pursuant to
Section
13(a), 13(c) or 15(d) of the United States Securities Exchange Act of 1934 (the
"1934 Act") which is incorporated by reference into the Registration Statement
pursuant to Item 12 of Form S-3, the terms "Registration Statement" and
"Prospectus" will include such report from and after the time it is filed with
the Commission.
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations to register additional Shares is herein referred to as the "Rule
462(b) Registration Statement," and after such filing, the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are included in a
document which is incorporated by reference in the Registration Statement, any
preliminary prospectus or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is incorporated by reference
in the Registration Statement, such preliminary prospectus or the Prospectus, as
the case may be.
SECTION 1. (a) Representations and Warranties of OEH. OEH represents and
warrants to you as of the date of this Agreement, and will represent and warrant
to you on each date hereafter when a post-effective amendment to the
Registration Statement becomes effective (an "Effective Date"), on each
Settlement Date (as defined in paragraph 2(b) below) and on each time referred
to in paragraphs 6(a) and 6(b) below (a "Representation Date"), as follows:
(i) Compliance with Registration Requirements. OEH meets the
registrant requirements for the use of Form S-3 to register under the 1933
Act the offer and sale of the Shares by the Selling Shareholder, as
described in the Prospectus. Each of the Registration Statement and any
Rule 462(b) Registration Statement has become effective under the 1933 Act,
no stop order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under the 1933 Act,
and no proceedings for that purpose have been instituted or are pending or,
to the knowledge of OEH, are contemplated by the Commission, and any
request on the part of the Commission for supplemental information pursuant
to Rule 418 under the 1933 Act has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective or will become effective, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied or will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations, and did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required
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to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
or will be issued, included or will include an untrue statement of a
material fact, or omitted or will omit to state a material fact, necessary
in order to make the statements therein, in the light of the circumstances
under which they were or will be made, not misleading. The representations
and warranties in this subsection 1(a)(i) will not apply to statements in
or omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with the Furnished Information, as provided in
paragraph 7(a) of this Agreement.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424(b) under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to you for use in
connection with this offering was substantively identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied or will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), as applicable, and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any post-amendment thereto became or will become
effective and at the time the Prospectus was issued, did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(iii) Independent Accountants. To the knowledge of OEH, Deloitte &
Touche LLP, the accountants who reported on the financial statements and
supporting schedule included in or incorporated by reference into the
Registration Statement and the Prospectus, are an independent registered
public accounting firm as required by the 1933 Act and the 1933 Act
Regulations.
(iv) Financial Statements. The consolidated financial statements of
OEH and its consolidated subsidiaries included in or incorporated by
reference into the Registration Statement and the Prospectus present fairly
the financial position and results of operations of OEH and its
subsidiaries on a consolidated basis at the respective dates, or for the
respective periods, to which they apply; such financial statements have
been prepared in conformity with U.S. generally accepted accounting
principles applied on a consistent basis throughout the respective periods
involved, and in compliance with the applicable accounting requirements of
the 1933 Act, the 1934 Act and the rules of the Commission, and the
supporting financial statement schedule or schedules included or
incorporated by reference in the Registration Statement, when considered in
relation to the basic consolidated financial statements taken as a whole,
presents or present fairly in
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all material respects the information required to be stated therein. Any
summary consolidated financial data included or incorporated by reference
in the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus.
(v) Good Standing of OEH and its Subsidiaries. (A) OEH and its
subsidiaries have been duly organized and are validly existing as companies
or corporations, as the case may be, in good standing under the laws of
their respective jurisdictions of organization, with full power and
authority (corporate and other) to own, lease and operate their respective
properties and conduct their respective businesses as described in the
Prospectus, and to enter into this Agreement; (B) OEH and its subsidiaries
are in compliance with all laws requiring their qualification to do
business as foreign corporations, and are in good standing, in all other
jurisdictions in which they respectively own or lease properties of a
nature, or transact business of a type, that would require such
qualification, except where the failure to comply with such laws do not or
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of
OEH and its subsidiaries considered as one enterprise (a "Material Adverse
Effect"); and (C) neither OEH nor any of its subsidiaries is in violation
of its charter or bye-laws or other constituent documents.
(vi) No Material Adverse Change. Since the end of OEH's most recently
completed fiscal year for which there are audited OEH financial statements,
and except as otherwise disclosed in the Prospectus, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of OEH and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Change"); (B) except for
this Agreement and the transactions provided for herein, there have been no
transactions entered into by OEH or any of its subsidiaries, other than
those in the ordinary course of business, which are material with respect
to OEH and its subsidiaries considered as one enterprise; and (C) there has
been no dividend or distribution of any kind declared, paid or made by OEH
on any class of its capital shares, other than regular quarterly dividends
in the amount of $.025 per Class A Share and per Class B Share.
(vii) Authorization, Execution and Delivery of this Agreement. This
Agreement, together with any applicable Terms Agreement, has been duly
authorized, executed and delivered by OEH and is a valid and binding
agreement of OEH, except that (i) the validity of the indemnification and
contribution provisions of Sections 7 and 8 of this Agreement may be
limited by public policy considerations, and (ii) the validity of Section
16 of this Agreement may be limited by the public policy of the State of
New York and the discretion of United States federal or New York State
courts with respect to venue, as provided in 28 U.S.C. Section 1404(a) and
New York CPLR Section 510, respectively.
(viii) Authorization of Rights Agreement. The Rights Agreement has
been duly authorized, executed and delivered by OEH; the Rights have been
duly authorized by
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OEH; the Rights attached to the Shares were validly issued when the Shares
to which they are attached were issued; and the Preferred Shares issuable
upon exercise of such Rights have been duly authorized by OEH and validly
reserved for issuance upon the exercise of the Rights and, when issued upon
such exercise in accordance with the terms of the Rights Agreement, will be
validly issued, fully paid and nonassessable.
(ix) Authorization and Description of Shares. The Shares have been
duly authorized for sale and delivery to you pursuant to the terms of this
Agreement, and when sold and delivered to you by the Selling Shareholder
pursuant to the terms of this Agreement and any applicable Terms Agreement,
against payment of the consideration set forth in the Terms Agreement, will
be validly issued, fully paid and non-assessable; no holder of the Shares
is or will be subject to personal liability with respect to the debts or
obligations of OEH solely by reason of being such a holder; and the
descriptions of the Class A Shares and the Rights in the Prospectus are
materially accurate and complete summaries.
(x) Capitalization. The authorized, issued and outstanding capital
shares of OEH are as set forth in the Prospectus in the first paragraph
under the caption "Description of the Common Shares." All of the
outstanding capital shares of OEH and the subsidiaries of OEH have been
duly authorized and validly issued and are fully paid and nonassessable,
and OEH, directly or through subsidiaries, owns all the outstanding capital
shares of its subsidiaries, free and clear of all material security
interests, liens, encumbrances, claims and equities, except that
approximately 3.0% of the equity in Companhia Hoteis Palace, approximately
4.5% of the equity in Societe de la Cite S.A., approximately 25% of the
equity in Miraflores Ventures Ltd. and Plan Costa Maya S.A. de C.V., and
6.5% of the equity in Europe Hotel LLC are not owned by OEH or its
subsidiaries; and none of the outstanding capital shares of OEH was issued
in violation of the preemptive rights of any shareholder of OEH.
(xi) New York Stock Exchange Listing. The Class A Shares (including
the Shares) and the Rights associated therewith are listed on the New York
Stock Exchange.
(xii) Absence of Material Defaults. Neither OEH nor any of its
subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust or other instrument or agreement to
which it is a party or by which it or its property may be bound or subject
except for such defaults, if any, that individually or in the aggregate
would not have a Material Adverse Effect;
(xiii) No Conflicts with this Agreement. The execution and delivery by
OEH of this Agreement and any Terms Agreement, the performance by OEH of,
or compliance with, its obligations under this Agreement and any Terms
Agreement, and the sale and delivery of the Shares pursuant to this
Agreement and any Terms Agreement do not and will not, whether with or
without the giving of notice or the passage of time or both, conflict with,
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
tax, lien, charge or encumbrance upon any property or assets of OEH or any
subsidiary of OEH under,
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o any indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or any other agreement or instrument to
which OEH or any of OEH's subsidiaries is a party, or which is
specifically binding on any of them, or to which any of their
properties or assets may be subject, except for such conflicts,
breaches, violations, defaults, liens, charges or encumbrances
that would not have a Material Adverse Effect, or
o the charter or bye-laws or other constituent documents of OEH or
any of OEH's subsidiaries, or
o any statute, rule or regulation, or any decree, judgment, order,
writ or decree of any United States domestic ("domestic") or
foreign court or governmental agency or body having jurisdiction
over OEH or any of OEH's subsidiaries, or over their respective
properties, except for such conflicts, breaches, violations,
defaults, liens, charges or encumbrances, if any, that would not
have a Material Adverse Effect.
(xiv) Absence of Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or foreign
(other than as may be disclosed in the Prospectus), now pending or, to the
knowledge of OEH, threatened, against or affecting OEH or any of its
subsidiaries, which action, suit or proceeding is required to be disclosed
in or incorporated by reference into the Registration Statement or might
result in a Material Adverse Change, or might materially and adversely
affect the sale of the Shares pursuant to this Agreement; and all pending
or threatened legal or governmental proceedings to which OEH or any of its
subsidiaries is a party or of which any of their property is the subject
and which are not described in or incorporated by reference into the
Registration Statement or otherwise publicly disclosed prior to the date of
this Agreement, including ordinary routine litigation incidental to their
businesses, are, considered in the aggregate, not material to OEH and its
subsidiaries considered as one enterprise.
(xv) Documents. There are no contracts or documents which are required
to be filed or incorporated by reference as exhibits to the Registration
Statement by the 1933 Act or by the rules of the Commission, or are
required to be described in the Prospectus, which have not been so filed or
incorporated by reference or described.
(xvi) Possession of Intellectual Property. OEH and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now operated by
them, and neither OEH nor any of its subsidiaries has received any notice
or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any facts
or circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of OEH or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or
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finding) or invalidity or inadequacy, singly or in the aggregate, would
result in a Material Adverse Effect.
(xvii) Absence of Further Requirements. No consent, approval,
authorization or order of, or registration, qualification or filing of or
with, any court or governmental agency or body (domestic or foreign) is
required for the performance by OEH of its obligations under this Agreement
and any Terms Agreement or the consummation of the transactions
contemplated by the this Agreement or otherwise in connection with the
valid sale and delivery by OEH of the Shares and the Rights except:
o such as have been or shall have been obtained or made under the
1933 Act or the 1934 Act,
o such as have been obtained from the Bermuda Monetary Authority,
and
o such as may be required under state securities laws in connection
with the purchase and distribution of the Shares and the Rights.
(xviii) Possession of Licenses and Permits. Except as may be disclosed
in the Prospectus, or except as would not individually or in the aggregate
have a Material Adverse Effect, each of OEH and its subsidiaries owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and neither
OEH nor any subsidiary has received any notice of proceedings relating to
revocation or modification of any such licenses, permits, certificates,
consents, orders, approvals or authorizations.
(xix) Title to Property. Each of OEH and its subsidiaries has good and
marketable title to all properties and assets owned by it, free and clear
of all liens, charges, encumbrances or restrictions, except such as (A) are
otherwise described in the Prospectus or (B) are neither material in amount
nor materially significant in relation to the business of OEH and its
subsidiaries considered as one enterprise. All of the leases and subleases
material to the business of OEH and its subsidiaries, considered as one
enterprise, and under which OEH or any subsidiary holds properties, are in
full force and effect, and neither OEH nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to
the rights of OEH or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of OEH or such
subsidiaries to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xx) Investment Company Act. OEH is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(xxi) Environmental Laws. Except as may be disclosed in the
Prospectus, or except as would not individually or in the aggregate have a
Material Adverse Effect, (A) OEH and its subsidiaries are in compliance
with all applicable Environmental Laws, (B)
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OEH and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are in compliance with
their requirements, (C) there are no pending or threatened Environmental
Claims against OEH or any of its subsidiaries, and (D) there are no
circumstances with respect to any property or operations of OEH or its
subsidiaries that could reasonably be anticipated to form the basis of an
Environmental Claim against OEH or any of its subsidiaries. "Environmental
Law" means any United States (or other applicable jurisdiction's) federal,
state, local or municipal statute, law, rule, regulation, ordinance, code,
policy or rule of common law and any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent decree or judgment, relating to the environment, health, safety or
any chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority, and "Environmental
Claims" means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating in any way to any
Environmental Law.
(xxii) Registration Rights. There are no contracts, agreements or
understandings between OEH and any person other than the Selling
Shareholder, granting such person the right to require OEH to include in
the Registration Statement any securities (debt or equity) of OEH owned or
to be owned by such person.
(xxiii) Internal Controls. OEH and its subsidiaries maintain a system
of internal control over financial reporting (as defined in Rule 13a-15(f)
under the 0000 Xxx) designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with U.S. generally accepted
accounting principles. OEH management assessed the effectiveness of OEH's
internal control over financial reporting as of December 31, 2004. In
making this assessment, management used the criteria set forth by the
Committee of Sponsoring Organizations of the Xxxxxxxx Commission (COSO) in
Internal Control-Integrated Framework. Based on this assessment and those
criteria, OEH's internal control over financial reporting is effective as
of the end of OEH's most recently completed fiscal year for which there are
audited OEH financial statements. Deloitte & Touche LLP, an independent
registered public accounting firm, issued a report on management's
assessment of OEH's internal control over financial reporting.
OEH is not aware of (a) any material weakness in internal control over
financial reporting, or (b) any fraud, whether or not material, that
involves management or other employees who have a significant role in OEH's
internal control over financial reporting. There have been no changes in
OEH's internal control over financial reporting since the end of OEH's most
recently completed fiscal year for which there are audited OEH financial
statements, that have materially affected, or are reasonably likely to
affect materially, OEH's internal control over financial reporting.
(xxiv) Disclosure Controls and Procedures. OEH has established and
maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the 1934 Act), which (i) are designed to ensure that
material information relating to OEH, including its consolidated
subsidiaries, is made known to the OEH's principal executive
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officers and its principal financial officer by others within those
entities, particularly during the periods in which the periodic reports
required under the 1934 Act are being prepared, (ii) have been evaluated
for effectiveness as of the end of the period covered by OEH's most recent
annual or quarterly report filed with the Commission, and (iii) are
effective in all material respects to perform the functions for which they
were established.
(xxv) Compliance with Xxxxxxxx-Xxxxx Act of 2002. OEH and its officers
and directors are in substantial compliance with applicable effective
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (the "Xxxxxxxx-Xxxxx Act"), and are
actively taking steps to ensure that they will be in compliance with any
other applicable provisions of the Xxxxxxxx-Xxxxx Act upon their
effectiveness.
(xxvi) Absence of Manipulation. Neither OEH nor any affiliate of OEH
has taken, nor will OEH or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be
expected to cause or result in stabilization or manipulation of the price
of any security of OEH to facilitate the sale or resale of the Shares.
(xxvii) Taxes. OEH and its subsidiaries have filed all necessary U.S.
federal, state and foreign income tax returns and have paid all taxes shown
by such returns which are due and payable, and any related or similar
assessment, fine or penalty levied against any of them, except in each case
as may be being contested in good faith and by appropriate proceedings. OEH
and its subsidiaries have made adequate charges, accruals and reserves in
the applicable financial statements described in the Prospectus in respect
of all U.S. federal, state and foreign income taxes for all periods as to
which the tax liability of OEH or any of its subsidiaries has not been
finally determined.
(xxviii) Officer's Certificates. Any certificate signed by any officer
of OEH or any of its subsidiaries and delivered pursuant to the terms of
this Agreement to you or to your counsel shall be deemed a representation
and warranty by OEH to you as to the matters covered thereby.
(b) Representations and Warranties of the Selling Shareholder. The Selling
Shareholder represents and warrants to you as of the date of this Agreement, and
will represent and warrant to you on each Effective Date, each Settlement Date
and each Representation Date, as follows:
(i) Good Standing of the Selling Shareholder. (A) The Selling
Shareholder has been duly organized and is validly existing as a company in
good standing under the laws of Bermuda, with full power and authority
(corporate and other) to enter into this Agreement and to sell, transfer
and deliver the Shares; (B) the Selling Shareholder is in compliance with
all laws requiring its qualification to do business as a foreign
corporation, and is in good standing, in all jurisdictions in which the
Selling Shareholder owns or leases properties of a nature, or transacts
business of a type, that would require such qualification, except where the
failure to comply with such laws would not have a material adverse effect
on the condition, financial or otherwise, or on the earnings,
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business affairs or business prospects of the Selling Shareholder and its
subsidiaries considered as one enterprise (a "Selling Shareholder Material
Adverse Effect"); and (C) the Selling Shareholder is not in violation of
its charter or bye-laws or other constituent documents.
(ii) Authorization, Execution and Delivery of this Agreement. This
Agreement, together with any applicable Terms Agreement, has been duly
authorized, executed and delivered by the Selling Shareholder and is a
valid and binding agreement of the Selling Shareholder, except that (i) the
validity of the indemnification and contribution provisions of Sections 7
and 8 of this Agreement may be limited by public policy considerations, and
(ii) the validity of Section 16 of this Agreement may be limited by the
public policy of the State of New York and the discretion of United States
federal or New York State courts with respect to venue, as provided in 28
U.S.C. Section 1404(a) and New York CPLR Section 510, respectively.
(iii) Accurate Disclosure. To the best knowledge of the Selling
Shareholder, the representations and warranties of OEH contained in
paragraph 1(a) of this Agreement are true and correct; and the appropriate
officers, employees and other representatives of the Selling Shareholder
have reviewed and are familiar with the Registration Statement and the
Prospectus and, to their best knowledge, neither the Prospectus nor any
amendments or supplements thereto (including any prospectus wrapper)
includes any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iv) No Conflicts with this Agreement. The execution and delivery by
the Selling Shareholder of this Agreement and any Terms Agreement, the
performance by the Selling Shareholder of, or compliance with, it
obligations under this Agreement and any Terms Agreement, and the sale and
delivery of the Shares pursuant to this Agreement and any Terms Agreement
do not and will not, whether with or without the giving of notice or the
passage of time or both, conflict with, or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Shares pursuant to,
o any indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which
the Selling Shareholder is a party, or which is specifically
binding on the Selling Shareholder, or to which any of its
properties or assets may be subject, except for such conflicts,
breaches, violations, defaults, liens, charges or encumbrances
that would not result in a Selling Shareholder Material Adverse
Effect,
o the charter, bye-laws or other constituent documents of the
Selling Shareholder, or
o any statute, rule or regulation, or any judgment, order, writ or
decree of any domestic or foreign court or governmental agency or
body having
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jurisdiction over the Selling Shareholder having jurisdiction
over the Selling Shareholder or any of its properties, except for
such conflicts, breaches, violations, defaults, taxes, liens,
charges or encumbrances that would not have a Selling Shareholder
Material Adverse Effect.
(v) Direct Holder of Securities; Title to Securities. The Selling
Shareholder has, and at each Settlement Date (including any Option
Settlement Date as defined in paragraph 5(h) of this Agreement) will have,
valid and unencumbered title to the Shares to be delivered by the Selling
Shareholder on such Settlement Date.
(vi) Delivery of Shares. Upon payment of the purchase price for any
Shares pursuant to this Agreement, delivery of such Shares as directed by
you to Cede & Co. ("Cede") or such other nominee as may be designated by
The Depository Trust Company ("DTC") (unless delivery of the Shares is
unnecessary because such Shares are already in possession of Cede or such
other nominee), registration of the Shares in the name of Cede or such
other nominee of DTC (unless registration of such Shares is unnecessary
because such Shares are already registered in the name of Cede or such
other nominee), and the crediting of such Shares on the books of DTC to
your securities accounts (assuming that neither DTC nor you has notice of
any "adverse claim" to such Shares within the meaning of Section 8-105 of
the New York Uniform Commercial Code (the "UCC")), (A) DTC shall be a
"protected purchaser" of such Shares within the meaning of Section 8-303 of
the UCC, and will acquire its interest in the Shares (including, without
limitation, all rights that the Selling Shareholder had or has the power to
transfer in such Shares) free and clear of any adverse claim within the
meaning of Section 8-102 of the UCC, (B) under Section 8-501 of the UCC,
you will acquire a valid security entitlement in respect of such Shares and
(C) no action (whether framed in conversion, replevin, constructive trust,
equitable lien, or other theory) based on any adverse claim to such Shares
may successfully be asserted against you with respect to such security
entitlement; for purposes of this representation, such Selling Shareholder
may assume that when such payment, delivery (if necessary) and crediting
occur, (x) such Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the Company's share
registry in accordance with its memorandum of association, bye-laws and
applicable law, (y) DTC will be registered as a "clearing corporation"
within the meaning of Section 8-102 of the UCC, and (z) appropriate entries
to your accounts on the records of DTC will have been made pursuant to the
UCC.
(vii) Absence of Manipulation. The Selling Shareholder has not taken,
and will not take, directly or indirectly, any action which is designed to
result in, 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 OEH to facilitate the sale or resale of the Shares.
(viii) Absence of Further Requirements. No consent, approval,
authorization or order of, or registration, qualification or filing of or
with, any court or governmental agency or body (domestic or foreign) is
required for the performance by the Selling Shareholder of its obligations
under this Agreement or the consummation of the
11
transactions contemplated by the this Agreement or otherwise in connection
with the valid sale and delivery by the Selling Shareholder of the Shares
and the Rights except:
o such as have been or shall have been obtained or made under the
1933 Act,
o such as have been obtained from the Bermuda Monetary Authority,
and
o such as may be required under state securities laws in connection
with the purchase and distribution of the Shares and the Rights.
(ix) No Association with NASD. Neither the Selling Shareholder nor any
of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(dd) of the By-laws of the National Association of Securities
Dealers, Inc. (the "NASD")), any member firm of the NASD.
(x) Officer's Certificates. Any certificate signed by any officer of
the Selling Shareholder or any of its subsidiaries and delivered to you or
to your counsel will be deemed a representation and warranty by the Selling
Shareholder to you as to the matters covered thereby.
SECTION 2. Authorization for Offers; Sales as Agent; Purchases
as Principal; Suspensions of Offers.
(a) Sales as Agent. On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth, you
agree, as agent for the Selling Shareholder, to use your best efforts to sell
the Shares upon the terms and conditions set forth in the Prospectus and
hereinafter provided. The Selling Shareholder may on any business day deliver
notice to you by telephonic communication and confirmed by any standard form of
written telecommunication (the "Authorization") confirming the minimum price at
which you may sell the Shares and the limitation, if any, on the number of
Shares which may be sold at such price, and the terms of such Authorization
shall remain in effect until you receive a subsequent Authorization which
modifies the terms of the previously delivered Authorization. The terms
contained in the most recently delivered Authorization may be modified
subsequent to the delivery thereof by telephonic or other form of communication,
provided that you shall not be bound by, or subject to any liability with
respect to, such modification until a reasonable time after receipt by you from
the Selling Shareholder of a subsequent Authorization containing such
modifications.
The Selling Shareholder reserves the right, in its sole discretion, to
suspend sales of the Shares commencing at any time for any period of time or
permanently. Upon receipt of instructions from the Selling Shareholder, you will
forthwith suspend such sales for the Selling Shareholder until such time as it
has advised you that sales may be resumed.
The Selling Shareholder agrees to pay you a commission in respect of agency
transactions in the amount of __ cents per Share.
12
(b) Purchases as Principal. Each sale of Shares to you as principal other
than a block transaction will be made in accordance with the terms of this
Agreement and a separate agreement to be entered into between you and OEH which
will provide for the sale of such Shares to you and the purchase and reoffering
thereof by you. Each such separate agreement (which will be substantially in the
form of Exhibit A hereto and which may take the form of an exchange of any
standard form of written telecommunication between you and the Selling
Shareholder) is herein referred to as a "Terms Agreement." Your commitment to
purchase Shares pursuant to any Terms Agreement will be deemed to have been made
on the basis of the representations and warranties of OEH and the Selling
Shareholder herein contained and will be subject to the terms and conditions
herein set forth. Each Terms Agreement will specify the number of Shares to be
purchased by you from the Selling Shareholder pursuant thereto, the price to be
paid to the Selling Shareholder for such Shares, the initial public offering
price, if any, at which the Shares are proposed to be reoffered, and the date,
time and place of delivery of and payment for such Shares (the "Settlement
Date"). Such Terms Agreement will also specify any requirements for opinions of
counsel and letters from Deloitte & Touche LLP pursuant to Section 5 hereof.
(c) Manner of Sales.
(1) The sale of the Shares through you as agent or by you as principal
may be effected from time to time by means of
(A) ordinary brokers' transactions and transactions in which the
broker-dealer solicits purchasers,
(B) block transactions (which may involve crosses) in accordance
with the rules of the New York Stock Exchange in which you may attempt
to sell Shares as agent but may purchase and resell all or a portion
of the block as principal,
(C) fixed price offerings off the floor of the New York Stock
Exchange, or exchange distributions or special offerings pursuant to
and in accordance with the rules of the New York Stock Exchange,
(D) privately negotiated transactions,
(E) short sales,
(F) firm commitment or best efforts underwritten offerings, or
(G) a combination of any such transactions.
(2) Such transactions may be effected by you at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices. You may effect such
transactions by selling Shares to or through other broker-dealers, and such
other broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from you and/or commissions from the
purchasers of Shares for whom they may act as agent (which discounts,
concessions or commissions will not exceed those customary in the types of
transactions involved). In
13
connection with the sale of the Shares, you may also receive commissions
from purchasers of Shares for whom you may act as agent.
(3) OEH and the Selling Shareholder acknowledge that nothing in this
Agreement will prohibit you from (A) acting as broker for the sale of
shares of OEH by customers other than the Selling Shareholder, (B)
soliciting the sale of shares of OEH through you as broker for the seller
or to you as principal, and soliciting offers to buy shares, (C) purchasing
shares of OEH otherwise than pursuant to this Agreement, and (D) offering
and selling as principal for your own account shares of OEH which you have
purchased otherwise than pursuant to this Agreement.
(d) Procedures. Administrative procedures respecting the sale of Shares
will be agreed upon from time to time by you, OEH and the Selling Shareholder,
and as of the date of this Agreement, the administrative procedures relating to
transactions in your capacity as agent pursuant to paragraph 2(a) hereof are set
forth in Exhibit B hereto (the "Procedures"). You and OEH and the Selling
Shareholder agree to perform the respective duties and obligations specifically
provided to be performed by you and them herein and in the Procedures.
SECTION 3. Covenants of OEH. OEH covenants with you as follows:
(a) OEH will advise you immediately and confirm such advice in writing:
(i) of OEH's intention to amend or supplement the Registration
Statement or the Prospectus (otherwise than by the filing of
reports pursuant to Section 13(a) of the 1934 Act), and OEH will
furnish you with copies of any such amendment or supplement a
reasonable time in advance of filing, and will not file such
amendment or supplement without your consent, which consent shall
not be unreasonably withheld;
(ii) of the filing of any document incorporated by reference in the
Registration Statement, and promptly thereafter OEH will make
available to you for consultation appropriate personnel of OEH so
as to permit you to conduct due diligence with respect to such
filing;
(iii) of the receipt of any comments from the Commission with respect
to the Registration Statement or the Prospectus or the request by
the Commission for any amendment to the Registration Statement or
any supplement to the Prospectus or for additional information
relating to the Registration Statement or the Prospectus or any
document incorporated by reference into the Prospectus;
(iv) of the filing or effectiveness of any amendment or supplement to
the Registration Statement or the Prospectus; and
(v) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the
suspension of the qualification of the Shares for offering or
sale in any jurisdiction or the institution or threat of any
proceeding for any such purposes. OEH will
14
use its best efforts to prevent the issuance of any such order or
of any order suspending such qualification and to obtain as soon
as possible its lifting at the earliest possible moment, if
issued.
(b) OEH will furnish to you such copies of the Prospectus and all
amendments and supplements thereto, in each case as soon as available and in
such quantities as you may reasonably request.
(c) If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with the offering or sales of the Shares, any event
shall occur or condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for OEH, to amend or supplement the Prospectus so
that it will not include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of such counsel at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the rules of the Commission, OEH will give you immediate notice to cease
the sale of the Shares in your capacity as agent and to cease sales of any
Shares you may then own as principal, and OEH will, subject to subsection
3(a)(i), if applicable, promptly prepare and file with the Commission such
amendment or supplement, whether by filing documents pursuant to the 1934 Act,
the 1933 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement comply with such requirements.
(d) At any time when a prospectus is required by the 1933 Act to be
delivered in connection with the offering and sales of the Shares, if OEH
releases to the general public quarterly financial statement information of OEH,
interim financial statement information with respect to any unanticipated charge
or gain or, upon your reasonable request, any other interim financial statement
information related to OEH with respect to each of the first three quarters of
any fiscal year, OEH will promptly furnish to the Commission a Form 8-K under
the 1934 Act, as required by Item 2.02 of the said Form, that includes (or OEH
shall, subject to subsection 3(a)(i), if applicable, otherwise cause the
Registration Statement to be amended and the Prospectus to be supplemented to
include or incorporate by reference) such financial statement information and,
if and to the extent relevant, corresponding information for the comparable
period of the preceding fiscal year; provided that if on the date of such
release, and for so long thereafter as, (i) all sales of Shares previously made
pursuant to paragraph 2(a) of this Agreement have settled, (ii) you are not
obligated to purchase Shares under a Terms Agreement, and (iii) you are not
offering for sale any Shares which you are holding as principal and which you
acquired under a Terms Agreement, then OEH will not be obligated to file such a
Form 8-K or otherwise amend or supplement the Prospectus.
(e) At any time when a prospectus is required by the 1933 Act to be
delivered in connection with the offering or sales of the Shares, if OEH
releases to the general public audited financial information of OEH for any
fiscal year, OEH will promptly furnish to the Commission a Form 8-K under the
1934 Act, as required by Item 2.02 of the said Form, that includes (or OEH
shall, subject to subsection 3(a)(i), if applicable, otherwise cause the
Registration Statement to be amended and the Prospectus to be supplemented, to
include or incorporate by reference) such audited financial statements and the
report or reports, and consent or consents to such inclusion
15
or incorporation by reference, of the independent accountants with respect
thereto; provided that if on the date of such release, and for so long
thereafter as, (i) all sales of Shares previously made pursuant to paragraph
2(a) of this Agreement have settled, (ii) you are not obligated to purchase
Shares under a Terms Agreement, and (iii) you are not offering for sale any
Shares which you are holding as principal and which you acquired under a Terms
Agreement, then OEH will not be obligated so to amend or supplement the
Prospectus.
(f) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with the offering or sale of the Shares, OEH (i) will
file promptly with the Commission all documents required to be filed by it
pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act, and (ii) will obtain
the written consent of OEH's independent accountants for the incorporation by
reference in the Registration Statement of their reports on the audited
financial statements contained in OEH's annual reports on Form 10-K under the
1934 Act.
(g) OEH will make generally available to its securityholders as soon as
practicable earnings statements (in form complying with the provisions of Rule
158 under the 0000 Xxx) with respect to each sale of Shares under a Terms
Agreement.
(h) Until this Agreement is terminated, OEH will furnish to you, as soon as
available, (i) a copy of each of its annual reports to shareholders, (ii) a copy
of each other document mailed by OEH to its shareholders, (iii) each press
release or announcement issued by OEH, and (iv) from time to time, such other
information concerning OEH and its subsidiaries as you may reasonably request.
(i) OEH and the Selling Shareholder will cooperate with you in qualifying
the Shares, including the Rights associated therewith, for offering and sale
under the laws of such jurisdictions as you shall reasonably designate and will
cooperate with you in continuing such qualifications in effect so long as
required for the distribution by you of such Shares and Rights; provided that in
connection with such qualification, OEH or the Selling Shareholder will not be
required to qualify as a foreign corporation or a securities dealer in any
jurisdiction, or to consent to the service of process under the laws of any
jurisdiction (except service of process with respect to the offering and sale of
the Shares) or to take any action which would or could subject OEH to taxation
in any jurisdiction where it is not now so subject. OEH or the Selling
Shareholder will execute such statements and reports which you or your counsel
prepare as may be required by the laws of each jurisdiction in which the Shares
and Rights are being qualified. OEH will also supply you with such information
for determining the legality of the Shares and Rights for investment under the
laws of such jurisdictions as you may reasonably request.
SECTION 4. Payment of Expenses. The Selling Shareholder will pay all
expenses, fees and taxes (other than transfer taxes and any fees and
disbursements of your counsel except as provided in clause (iv) below) incident
to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement and all amendments thereto,
(ii) the transfer and delivery of the Shares, (iii) the fees and disbursements
of the accountants, counsel and other advisors of OEH and the Selling
Shareholder, (iv) the qualification of the Shares under securities laws in
accordance with the provisions of Section 3(i), including filing fees and the
reasonable fees and disbursements of your counsel in connection with such
qualification and in connection with the preparation of any blue sky survey, (v)
any fees, taxes and charges imposed by Bermuda on the sale of the Shares, (vi)
the printing and delivery to you of copies of the Registration Statement and all
amendments thereto,
16
and copies of the Prospectus and any amendments or supplements thereto, (vii)
the reproduction and delivery of copies of the blue sky survey, (viii) the fees
and expenses, if any, incurred with respect to any filing by you with the
National Association of Securities Dealers, Inc. in connection with the offer
and sale of the Shares, (ix) the fees and expenses incurred in connection with
the listing of the Shares on the New York Stock Exchange, and (x) any stamp
duties, capital duties and stock transfer taxes payable upon the sale of Shares
to you.
SECTION 5. Conditions to Obligations. Your obligations to sell the Shares
as agent of the Selling Shareholder, and your obligations to purchase Shares
pursuant to any Terms Agreement, will be subject to the accuracy of the
representations and warranties on the part of OEH and the Selling Shareholder
herein on the most recent Effective Date, any applicable Representation Date and
any applicable Settlement Date, to the performance and observance by OEH and the
Selling Shareholder of all covenants and agreements herein contained on its part
to be performed and observed, and to the following additional conditions
precedent:
(a) Effectiveness of Registration Statement. The last filed post-effective
amendment the Registration Statement shall have been declared effective under
the 1933 Act, and no stop order suspending the effectiveness of the Registration
Statement or the suspension of the qualification of the Shares for offering or
sale in any jurisdiction shall have been issued and not lifted, and no
proceedings for such purposes shall have been instituted and continue to be
pending, or, to your knowledge or the knowledge of OEH, shall be threatened, and
all requests for additional information by the Commission shall have been
complied with to your reasonable satisfaction.
(b) Opinions of Counsel. At each Settlement Date with respect to any Terms
Agreement, if called for by such Terms Agreement, you shall have received:
(1) Opinion of U.S. Counsel to OEH and the Selling Shareholder -- the
opinion, dated as of such Settlement Date, of Xxxxxx Xxxxxxx & Xxxxxxx LLP,
United States counsel to OEH and the Selling Shareholder, in form
reasonably satisfactory to you and your counsel, to the effect that:
(i) Orient-Express Hotels Inc. has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, and each of Charleston Center LLC and Windsor
Court Hotel LLC has been duly formed and is a validly existing limited
liability company in good standing under the laws of the State of
Delaware; and
(ii) To such counsel's best knowledge[, except as may be
described in the Prospectus], there are no legal or governmental
proceedings pending or threatened in the United States to which OEH or
any of its subsidiaries is a party or to which any of its or their
properties is subject and which are required to be disclosed in the
Registration Statement or the Prospectus pursuant to Item 103 ("Legal
Proceedings") of Regulation S-K;
(iii) To such counsel's best knowledge, there are no legal or
governmental proceedings pending or threatened in the United States to
which the
17
Selling Shareholder is a party or to which any of its properties is
subject, which might reasonably be expected to affect materially and
adversely the consummation of the transactions contemplated in this
Agreement or the performance by the Selling Shareholder of its
obligations hereunder;
(iv) The execution and delivery by OEH and the Selling
Shareholder of this Agreement [and the Terms Agreement], the
performance by OEH and the Selling Shareholder of, or their compliance
with, their respective obligations under this Agreement [and the Terms
Agreement], and the consummation of the transactions contemplated in
this Agreement or in the Registration Statement, including the
offering, sale and delivery by the Selling Shareholder of the Shares,
the Rights and the Preferred Shares issuable upon the exercise of such
Rights (assuming such Preferred Shares were issued on the date of such
opinion), do not and will not, whether with or without the giving of
notice or the passage of time or both, result in a breach or violation
of any of the terms or provisions of, or constitute a default by OEH
or the Selling Shareholder under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of OEH, any of its subsidiaries, or the Selling Shareholder
under, (A) any indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or any other agreement or instrument
listed in Annex A to such opinion at your reasonable request, provided
that such counsel need not express any opinion as to a loan facility
providing for aggregate indebtedness, in one or more installments,
less than or equal to $_______, or (B) any United States federal or
New York statute, rule or regulation or any decree, judgment or order,
known to such counsel, of any United States federal or New York court
or governmental agency or body specifically applicable to OEH or any
of its subsidiaries, except for such breaches, violations, defaults,
liens, charges or encumbrances that would not have a Material Adverse
Effect;
(v) Upon payment of the purchase price for the Shares to be sold
by the Selling Shareholder pursuant to this Agreement, delivery of
such Shares as directed by you to Cede or such other nominee as may be
designated by DTC (unless delivery of such Shares is unnecessary
because such Shares are already in possession of Cede or such other
nominee), registration of such Shares in the name of Cede or such
other nominee (unless registration of such Shares is unnecessary
because such Shares are already registered in the name of Cede or such
other nominee) and the crediting of such Shares on the books of DTC to
your securities accounts (assuming that neither DTC nor you has notice
of any "adverse claim" to such Shares within the meaning of Section
8-105 of the UCC), (A) DTC shall be a "protected purchaser" of such
Shares within the meaning of Section 8-303 of the UCC, and will
acquire its interest in the Shares (including, without limitation, all
rights that the Selling Shareholder had or has the power to transfer
in such Shares) free and clear of any adverse claim within the meaning
of Section 8-102 of the UCC, (B) under Section 8-501 of the UCC, you
will acquire a valid security entitlement in respect of such Shares
and (C) no action (whether framed in conversion, replevin,
constructive trust, equitable lien, or other theory) based on any
adverse claim to such Shares may be successfully asserted against
18
you with respect to such security entitlement; for purposes of this
opinion, such counsel may assume that when such payment, delivery (if
necessary) and crediting occur, (x) such Shares will have been
registered in the name of Cede or another nominee designated by DTC,
in each case on OEH's share registry in accordance with its memorandum
of association, bye-laws and applicable law, (y) DTC will be
registered as a "clearing corporation" within the meaning of Section
8-102 of the UCC, and (z) appropriate entries to the accounts of the
several Underwriters on the records of DTC will have been made
pursuant to the UCC.
(vi) No consent, approval, authorization or order of, or
registration, qualification or filing of or with, any United States
federal or New York governmental authority or agency or, to the best
of such counsel's knowledge, any United States federal or New York
court is required for the performance by OEH and the Selling
Shareholder of its obligations under this Agreement [and the Terms
Agreement], or the consummation of the transactions contemplated by
this Agreement in connection with the valid sale and delivery by the
Selling Shareholder of the Shares, the Rights associated therewith and
the Preferred Shares issuable upon the exercise of such Rights,
except, in the case of the Shares and the Rights associated therewith,
(a) such as have been or will have been obtained or made under the
1933 Act, and (b) such as may be required under the state securities
laws of New York, as to which such counsel need not express an
opinion, in connection with the purchase and distribution of the
Shares and Rights by you, and except, in the case of the Preferred
Shares issuable upon the exercise of the Rights associated with the
Shares, (c) such as may be required under the 1933 Act or the 1934
Act, and (d) such as may be required under state securities laws in
connection with the issuance of the Preferred Shares upon the exercise
of such Rights;
(vii) The Registration Statement, and the latest filed
post-effective amendment thereto, are effective under the 1933 Act,
and to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement is in effect and no
proceedings for that purpose have been initiated or are pending or
threatened;
(viii) The Registration Statement, the Prospectus and each
document incorporated by reference therein, at the time each of them
was initially filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the rules
of the Commission thereunder;
(ix) The descriptions in the Registration Statement and the
Prospectus and each amendment or supplement thereto, of those
contracts and other legal documents, United States federal and New
York statutes, and legal or governmental proceedings in the United
States, which are to be listed in Annex B to such opinion, are
accurate summaries in all material respects;
(x) To such counsel's best knowledge, there are no contracts or
documents required to be described in the Registration Statement or
the
19
Prospectus, or required to be filed as exhibits to the Registration
Statement, or incorporated by reference in the Registration Statement
or the Prospectus, which are not described or filed or incorporated by
reference as required, it being understood that such counsel expresses
no opinion as to the financial statements and related notes and
schedule or schedules or other financial information and statistical
data in the Registration Statement or the Prospectus;
(xi) The Class A Shares, (including the Shares) and the Rights
associated therewith are listed on the New York Stock Exchange, Inc.;
(xii) OEH is eligible to use Form S-3 for the registration under
the 1933 Act of the offer and sale of the Shares by the Selling
Shareholder as described in the Prospectus, and the Registration
Statement meets the requirements set forth in Rule 415(a)(1)(i) under
the 1933 Act;
(xiii) OEH is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(xiv) The submission of OEH and the Selling Shareholder (pursuant
to Section 16 of this Agreement) to the personal jurisdiction of the
courts of the State of New York in the County of New York or the
United States District Court for the Southern District of New York
with respect to any action or proceeding arising out of, or based on,
this Agreement is valid and enforceable against OEH and the Selling
Shareholder, and the appointment by OEH and the Selling Shareholder of
Corporation Service Company as the designee, appointee and agent upon
whom process may be served in any such action or proceeding is also
valid and enforceable against OEH and the Selling Shareholder.
However, the enforceability of such submission and appointment is
subject to, and may be limited by, (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization, fraudulent
conveyance or other similar laws relating to or affecting the
enforcement of the rights of creditors, (ii) general principles of
equity, and (iii) the discretion of United States federal or New York
State courts with respect to venue, as provided in 28 U.S.C. Section
1404(a) and New York CPLR Section 510, respectively.
Xxxxxx Xxxxxxx & Xxxxxxx LLP may limit such opinion to the laws of the
United States of America and the State of New York, and the General
Corporation Law and Limited Liability Company Act of the State of Delaware,
and may rely as to factual matters on certificates obtained from officers
of OEH and public officials.
The opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP will also state that,
while such counsel have not made any independent investigation of, are not
passing upon and do not assume responsibility for, the accuracy or
completeness of the statements contained in the Registration Statement or
the Prospectus (other than as indicated in subsections (viii) and (ix)
above, on the basis of discussions regarding the business and affairs of
OEH and the Selling Shareholder, and such counsel's familiarity with
certain matters relating to such
20
business and affairs as a result of having served as United States counsel
for OEH and the Selling Shareholder in connection with previous
transactions, nothing has come to such counsel's attention that would lead
them to believe that the Registration Statement (other than the financial
statements and notes and other financial and statistical data included in
the Registration Statement and Prospectus, as to which such counsel
expresses no view), as of the most recent Effective Date contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (other than the financial statements
and notes and other financial and statistical data included in the
Registration Statement and Prospectus, as to which such counsel expresses
no view), on the most recent Effective Date, or on the appropriate
Settlement Date or Representation Date, contained 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, not misleading.
(2) Opinion of Bermuda Counsel to OEH and the Selling Shareholder --
the opinion, dated as of such Settlement Date, of Xxxxxxx Xxxxxxxx Xxxxxx,
Bermuda counsel to OEH and the Selling Shareholder, in form reasonably
satisfactory to you and your counsel, to the effect that:
(i) OEH and the Selling Shareholder are exempted companies duly
incorporated with limited liability, validly existing and in good
standing under the laws of Bermuda;
(ii) OEH has all requisite corporate power and authority under
its Constitutional Documents (as defined) to own, lease, manage and
operate its properties and to conduct its business as described in the
Registration Statement and Prospectus; OEH and the Selling Shareholder
have all requisite corporate power and authority under their
respective Constitutional Documents to enter into and perform their
respective obligations under this Agreement [and the Terms Agreement]
and to deliver the Shares as herein contemplated.
(iii) This Agreement [and the Terms Agreement] has/have been duly
authorized, executed and delivered by OEH and the Selling Shareholder
and constitute[s] [a] valid and binding obligation[s] of OEH and the
Selling Shareholder enforceable against OEH and the Selling
Shareholder in accordance with its/their terms;
(iv) The issued and outstanding Class A Shares have been duly
authorized and validly issued and are fully paid and non-assessable;
(v) None of the outstanding Class A Shares were issued in
violation of any pre-emptive or other similar rights of any security
holder of OEH pursuant to the Constitutional Documents (as defined);
(vi) The Shares have been duly authorized for sale and delivery
to you pursuant to the terms of this Agreement [and the Terms
Agreement], and when
21
sold and delivered by OEH pursuant to the terms of this Agreement [and
the Terms Agreement], against payment of the consideration set forth
in the Terms Agreement, will be validly issued, fully paid and
non-assessable, and no holder of the Shares is or will be subject to
personal liability with respect to the debts or obligations of OEH
solely by reason of being such a holder.
(vii) The Rights Agreement has been duly authorized, executed and
delivered by OEH, the Rights have been duly authorized by OEH, the
Rights attached to the Shares will be validly issued when the Shares
are issued, and the Preferred Shares issuable upon the exercise of the
Rights have been duly authorized by OEH and validly reserved for
issuance upon the exercise of the Rights and, when issued upon such
exercise in accordance with the terms of the Rights Agreement, will be
validly issued, fully paid and non-assessable;
(viii) Based solely on the results of the Litigation Search (as
defined), there is not pending any action, suit, proceeding, inquiry
or investigation in Bermuda, to which OEH is a party or to which the
property of OEH is subject, before or brought by any court or
governmental agency or body in Bermuda, which could reasonably be
expected to result in a Material Adverse Effect, or which could
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated by this Agreement or the performance by OEH of its
obligations hereunder.
(ix) The information in the Prospectus under the captions "Risk
Factors - Other Risks - We cannot assure you that a judgment of a
United States court for liabilities under U.S. securities laws would
be enforceable in Bermuda, or that an original action can be brought
in Bermuda against Orient-Express Hotels for liabilities under U.S.
securities laws," Risk Factors - Other Risks - Orient-Express Hotels'
directors and officers may control the outcome of most matters
submitted to a vote and of its shareholders," "Risk Factors - Other
Risks - Provisions in Orient-Express Hotels' charter documents may
discourage potential acquisitions of Orient-Express Hotels, even those
which the holders of a majority of its class A common shares might
favor," and "Description of the Common Shares," to the extent such
information constitutes matters of Bermuda law, is accurate in all
material respects.
(x) The execution and delivery by OEH and the Selling Shareholder
of this Agreement [and the Terms Agreement], the performance by OEH
and the Selling Shareholder of, or their compliance with, their
respective obligations under this Agreement [and any Terms Agreement],
and the consummation of the transactions contemplated in this
Agreement, any Terms Agreement or the Registration Statement,
including the sale and delivery by OEH and the Selling Shareholder of
the Shares, the Rights and the Preferred Shares issuable upon the
exercise of such Rights (assuming such Preferred Shares were issued on
the date of such opinion), do not and will not result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
22
OEH or the Selling Shareholder under, (A) any indenture, mortgage,
deed of trust, loan agreement or any other agreement or instrument
which is described or referred to in the Prospectus, or is filed or
incorporated by reference as an exhibit to the Registration Statement,
and to which OEH or the Selling Shareholder is a party, or by which
either of them is bound, or to which any of their respective property
or assets is subject, except for such breaches, violations, defaults,
liens, charges or encumbrances, if any, that would not have a Material
Adverse Effect), (B) any requirement of any law or regulation of
Bermuda, and (C) the Constitutional Documents;
(xi) No consent, approval, authorization or order of, or
registration or qualification or filing of or with, any Bermuda
governmental agency or body or, to the best of such counsel's
knowledge, any Bermuda court is required for the performance by OEH
and the Selling Shareholder of their respective obligations under this
Agreement [and the Terms Agreement], including the sale and delivery
by the Selling Shareholder of the Shares, the Rights associated
therewith and the Preferred Shares issuable upon the exercise of such
Rights, except such as have been obtained from the Bermuda Monetary
Authority; and
(xii) The choice of the laws of the State of New York as the
proper law to govern this Agreement and the Terms Agreement is a valid
choice of law under Bermuda law, and such choice of law would be
recognized, upheld and applied by the courts of Bermuda as the proper
law of this Agreement and the Terms Agreement in proceedings brought
before them in relation to this Agreement [and the Terms Agreement],
provided that (1) the point is specifically pleaded; (2) such choice
of law is valid and binding under the laws of the state of New York;
and (3) recognition would not be contrary to public policy as that
term is understood under Bermuda law.
(xiii) There are no Bermuda capital, stamp or other issuance
taxes or duties payable in Bermuda in connection with the issuance,
sale and delivery of the Shares to you, or the consummation of any of
the other transactions contemplated in this Agreement [and the Terms
Agreement].
(xiv) The irrevocable and unconditional submission by OEH and the
Selling Shareholder to the jurisdiction of any state or federal court
in New York under this Agreement is not contrary to Bermuda law and
would be recognised by the courts of Bermuda as a legal, valid and
binding submission, provided that such submission is accepted by such
courts and is legal, valid and binding under the laws of the State of
New York.
(xv) A final and conclusive judgment of a competent foreign court
against OEH and/or the Selling Shareholder based on this Agreement,
and the transactions contemplated hereby (other than a court of
jurisdiction to which the Judgment (Reciprocal Enforcement) Xxx 0000
applies, and it does not apply to the courts of New York) under which
a sum of money is payable (not being a sum payable in respect of taxes
or other charges of a like nature, in respect of a fine or
23
other penalty, or in respect of multiple damages as defined in The
Protection of Trading Interests Act 1981) may be the subject of
enforcement proceedings in the Supreme Court of Bermuda under the
common law doctrine of obligation by action on the debt evidenced by
the judgment of such competent foreign court. A final opinion as to
the availability of this remedy should be sought when the facts
surrounding the foreign court's judgment are known, but, on general
principles, one would expect such proceedings to be successful
provided that:
(a) the court which gave the judgment was competent to hear
the action in accordance with private international law
principles as applied in Bermuda; and
(b) the judgment is not contrary to public policy in
Bermuda, has not been obtained by fraud or in proceedings
contrary to natural justice and is not based on an error in
Bermuda law.
Enforcement of such a judgment against the assets in Bermuda may
involve the conversion of the judgment debt into Bermuda dollars, but
the Bermuda Monetary Authority's policy is to give the consents
necessary to enable recovery in the currency of the obligation.
(xvi) such counsel has no reason to believe that as of the date
of the opinion the enforcement of a foreign judgment relating to the
indemnification and contribution provisions set forth in Sections 7
and 8 of this Agreement would contravene Bermuda public policy or
laws.
(3) Opinion of Corporate Secretary of OEH and the Selling Shareholder
-- the opinion, dated as of such Settlement Date, of Xxxxx X. Xxxxxxxxxxxx,
Secretary of OEH and Vice President, General Counsel and Secretary of the
Selling Shareholder, in form reasonably satisfactory to you and your
counsel, to the effect that:
(i) The issued capital shares of each significant subsidiary of
OEH (as defined in Regulation S-X of the Commission) have been duly
authorized and validly issued, are fully paid and non-assessable and
except as otherwise disclosed in the Prospectus, are owned
beneficially by OEH, either directly or through wholly-owned
subsidiaries of OEH, free and clear, to the best of such counsel's
knowledge, of any pledge, lien, encumbrance, security interest,
restriction on voting or transfer, preemptive rights or other defect
or claim of any third party, except as disclosed in Section 1(j) of
this Agreement.
(ii) To the best of such counsel's knowledge, [except as may be
described in the Prospectus,] there are no legal or governmental
proceedings pending or threatened in England to which OEH or any of
its subsidiaries is a party or to which any of its or their properties
is subject, except for such proceedings that, individually or in the
aggregate, would not have a Material Adverse Effect.
24
(iii) The execution and delivery by OEH and the Selling
Shareholder of this Agreement [and the Terms Agreement], the
performance by OEH and the Selling Shareholder of, or their compliance
with, their respective obligations under this Agreement [and the Terms
Agreement], and the consummation of the transactions contemplated in
this Agreement or in the Registration Statement, including the sale
and delivery by the Selling Shareholder of the Shares, the Rights and
the Preferred Shares issuable upon the exercise of such Rights
(assuming such Preferred Shares were issued on the date of such
opinion) do not and will not, whether with or without the giving of
notice or the passage of time or both, result in a breach or violation
of any of the terms or provisions of, or constitute a default by OEH
or the Selling Shareholder under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of OEH, any of its subsidiaries, or the Selling Shareholder
under, (A) any indenture, mortgage, deed of trust, loan agreement or
any other agreement or instrument listed in Annex A to such opinion,
or (B) any applicable law, statute, rule, regulation, or any judgment,
order, writ or decree, known to such counsel, of any government,
government instrumentality or court in the United Kingdom having
jurisdiction over OEH or any of its subsidiaries or any of their
assets, properties or operations; and
Such counsel may limit such opinion to the laws of the United Kingdom. The
opinion of such counsel will also state as follows:
"In my capacity as the Secretary of OEH and the Selling Shareholder, I
participated in the preparation of the Registration Statement and the
Prospectus. In the course of those preparations, I have participated
in conferences with other officers and other representatives of OEH
and the Selling Shareholder, representatives of the independent public
accountants for OEH, counsel to OEH and the Selling Shareholder and
your representatives, and I am familiar with the statistical data
contained in the Registration Statement and the Prospectus. Although I
have not independently verified the accuracy, completeness or fairness
of that statistical data, I advise you that no facts have come to my
attention that cause me to believe (i) that the Registration
Statement, at the time they became effective, included any statistical
data which constituted or 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 in the Registration Statement not
misleading, or (ii) that the Prospectus, at the time it was issued and
on the date hereof, included or includes any statistical data which
constituted or contained, or constitutes or contains, an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements in the Prospectus, in
the light of the circumstances under which they were made, not
misleading. Nothing set forth herein is intended to express any view
with respect to the financial statements of OEH or any related notes
or schedules."
25
(4) Opinion of Counsel to Agent -- the opinion, dated as of such
Settlement Date, of your counsel (i) to the effect that the opinions
delivered pursuant to subsections 5(b)(1), 5(b)(2) and 5(b)(3) above appear
on their face to be appropriately responsive to the requirements of this
Agreement except, specifying the same, to the extent waived by you, and
(ii) with respect to the Shares, this Agreement, the Registration
Statement, the Prospectus, the documents incorporated by reference and such
other related matters as you may require. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the laws of the State of New York and the federal laws of the
United States, upon the opinions of counsel reasonably satisfactory to you,
including the opinion of Xxxxxxx Xxxxxxxx Xxxxxx as to matters of Bermuda
law. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of OEH and certificates of public officials.
(c) Officers' Certificates. On each Settlement Date, there will not have
been, since the date of the applicable Terms Agreement, and on each Effective
Date, there will not have been since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
Material Adverse Change, whether or not arising in the ordinary course of
business, and on each Effective Date, and on each Settlement Date, if called for
by the applicable Terms Agreement, you will have received
(i) a certificate of OEH's chairman, president or any vice president,
dated as of the Effective Date or such Settlement Date, to the effect that
(A) there has been no Material Adverse Change, (B) the other
representations and warranties of OEH contained in Section 1 of this
Agreement are true and correct with the same force and effect as though
expressly made at and as of the time of such certificate, (C) OEH has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement and any applicable Terms
Agreement at or prior to the date of such certificate, and (D) no stop
order suspending the effectiveness of the Registration Statement or the
qualification of the Shares for offer or sale in any jurisdiction has been
issued, and no proceedings for that propose have been initiated or are
pending or, to such person's knowledge, are threatened, and
(ii) a certificate of the Selling Shareholder's president or any vice
president, dated as of the Effective Date or such Settlement Date, to the
effect that (A) the representations and warranties of the Selling
Shareholder contained in paragraph 1(b) of this Agreement are true and
correct with the same force and effect as though expressly made at and as
of the time of such certificate, and (C) the Selling Shareholder has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement and any applicable Terms
Agreement at or prior to the date of such certificate.
(d) Independent Accountants Comfort Letter. On the date of any Terms
Agreement, you will have received from Deloitte & Touche LLP a letter, dated as
of such date, in form and substance reasonably satisfactory to you, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
26
statements and certain financial and statistical information contained in the
Registration Statement and the Prospectus.
(e) Bring-down Comfort Letter. On each Settlement Date, if called for by
the applicable Terms Agreement, you will have received from Deloitte & Touche
LLP a letter, dated as of such Settlement Date, to the effect that they reaffirm
the statements made in the letter furnished pursuant to paragraph (d) of this
Section 5, except that the specified date referred to will be a date not more
than three business days prior to such Settlement Date will refer to the most
recent consolidated financial statements, amounts, percentages and financial
information contained therein.
(f) Information to be Given to Agent's Counsel. On each Settlement Date,
your counsel shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the sale of
the Shares as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by OEH and the Selling Shareholder in connection with the
sale of the Shares as herein contemplated shall be reasonably satisfactory in
form and substance to you and your counsel.
(g) Agent for Service. You shall have received evidence reasonably
satisfactory to you that the appointment of Corporation Service Company as agent
for service of process for OEH and the Selling Shareholder pursuant to Section
16 hereof has been accepted by such agent.
(h) Conditions to Purchase of Option Shares. In the event that OEH and/or
the Selling Shareholder grants you in a Terms Agreement an option to purchase
Shares to cover overallotments ("Option Shares") and you exercise such option to
purchase all or any portion of the Option Shares, the representations and
warranties of OEH and the Selling Shareholder contained herein and the
statements in such Terms Agreement or any certificates furnished by OEH or the
Selling Shareholder hereunder will be true and correct as of each Settlement
Date for such Option Shares ("Option Settlement Date") and, at the relevant
Option Settlement Date, you will have received:
(1) a certificate, dated such Option Settlement Date, of the
chairman, president or any vice president of OEH and the president or
any vice president of the Selling Shareholder confirming that the
certificates delivered on the Settlement Date pursuant to paragraph
5(c) hereof remain true and correct as of such Option Settlement Date;
(2) the opinions of Xxxxxx Xxxxxxx & Xxxxxxx LLP, Xxxxxxx
Xxxxxxxx Xxxxxx and Xxxxx X. Xxxxxxxxxxxx, each in form reasonably
satisfactory to your counsel, dated such Option Settlement Date,
relating to the Option Shares to be purchased on such Option
Settlement Date and otherwise to the same effect as the opinions
delivered pursuant to subsections 5(b)(1), 5(b)(2) and 5(b)(3) hereof;
(3) the opinion of your counsel, dated such Option Settlement
Date, relating to the Option Shares to be purchased on such Option
Settlement Date and
27
otherwise to the same effect as the opinion delivered pursuant to
subsection 5(b)(4) hereof; and
(4) a letter from Deloitte & Touche LLP, in form and substance
reasonably satisfactory to you and dated such Option Settlement Date,
substantially in the same form and substance as the letter furnished
to you pursuant to paragraph 5(e) hereof, except that the specified
date in the letter furnished to you pursuant to this paragraph (h)
shall be a date not more than five days prior to such Option
Settlement Date.
Your obligation to purchase Shares pursuant to any Terms Agreement will be
subject to the further condition that there shall not have come to your
attention any facts that would cause you to believe that the Prospectus, at the
time it was required to be delivered to a purchaser of the Shares, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at such time, not misleading.
If any condition specified in this Section 5 will not have been fulfilled,
this Agreement and any Terms Agreement may be terminated by you by notice to OEH
at any time at or prior to the applicable Settlement Date, and such termination
shall be without liability of any party to any other party except that the
covenant set forth in paragraph 3(g) hereof, the provisions of Section 4 hereof,
the indemnity provisions of Section 7 hereof, the contribution provisions of
Section 8 hereof and the provisions of Sections 9, 10, 13 and 14 hereof will
remain in effect. For purposes of a Settlement Date with respect to any Terms
Agreement, the term "Prospectus" will refer to the Prospectus last filed by OEH
under Rule 424(b) under the 1933 Act prior to the execution of the applicable
Terms Agreement.
SECTION 6. Additional Covenants of OEH and the Selling Shareholder. OEH and
the Selling Shareholder covenant and agree as follows:
(a) Each execution and delivery of a Terms Agreement by OEH and the Selling
Shareholder will be deemed to be (i) an affirmation that the representations and
warranties of OEH and the Selling Shareholder contained in this Agreement and
such Terms Agreement and in any certificate theretofore delivered to you
pursuant hereto are true and correct at the time of such execution and delivery,
and (ii) an undertaking that such representations and warranties will be true
and correct at the applicable Settlement Date, as though made at and as of such
Settlement Date (and it is understood that such representations and warranties
shall relate to the Registration Statement and the Prospectus as amended and
supplemented to each such time).
(b) Each time that OEH (1) amends or supplements the Registration Statement
or the Prospectus by filing with the Commission an annual report pursuant to
Section 13 or 15(d) of the 1934 Act, or (2) otherwise amends the Registration
Statement or the Prospectus (other than by providing solely for a change in the
plan of distribution or sales price or similar changes, and other than by filing
with the Commission any document (other than an annual report) incorporated by
reference into the Prospectus), OEH will furnish or cause to be furnished to you
forthwith (i) a certificate, in form reasonably satisfactory to you, to the
effect that the statements contained in the certificate referred to in paragraph
5(c) hereof which was last furnished to you
28
are true and correct at the time of filing such amendment or supplement, as the
case may be, as though made at and as of such time (except that such statements
will be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or (ii) in lieu of such certificate a
certificate of the same tenor as the certificate referred to in paragraph 5(c),
modified as necessary to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such certificate.
(c) Each time that OEH (1) amends or supplements the Registration Statement
or the Prospectus by filing with the Commission an annual report pursuant to
Section 13 or 15(d) of the 1934 Act, or (2) otherwise amends the Registration
Statement or the Prospectus (other than an amendment or supplement providing
solely for a change in the plan of distribution or sales price or similar
changes, and other than by filing with the Commission any document (other than
an annual report) incorporated by reference into the Prospectus), OEH will cause
to be furnished forthwith to you and your counsel (i) a written opinion of
Xxxxxx Xxxxxxx & Xxxxxxx LLP or other United States counsel reasonably
satisfactory to you, (ii) a written opinion of Xxxxxxx Xxxxxxxx Xxxxxx or other
Bermuda counsel reasonably satisfactory to you, and (iii) the written opinion of
OEH's General Counsel or other counsel reasonably satisfactory to you, in each
case dated the date of delivery of such opinion, in form reasonably satisfactory
to you, of the same tenor as the opinions to be delivered by such counsel
pursuant to subsections 5(b)(1), 5(b)(2) and 5(b)(3) hereof, respectively, but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinions
or, in lieu of such opinions, counsel last furnishing such an opinion to you may
furnish you with a letter to the effect that you may rely on such last opinion
to the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion will, subject to the last
sentence of Section 5 hereof, be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) Each time that OEH (1) amends or supplements the Registration Statement
or the Prospectus by filing with the Commission an annual report pursuant to
Section 13 or 15(d) of the 1934 Act, or (2) otherwise amends the Registration
Statement or the Prospectus (other than an amendment or supplement providing
solely for a change in the plan of distribution or sales price or similar
changes, and other than by filing with the Commission any document (other than
an annual report) incorporated by reference into the Prospectus), OEH shall
cause Deloitte & Touche LLP forthwith to furnish you a letter, dated the date of
filing of such annual report or other amendment or supplement with the
Commission, in form reasonably satisfactory to you, of the same tenor as the
letter referred to in paragraph 5(d) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the date
of such letter, and to reflect changes in the financial statements and other
information derived from the accounting records of OEH; provided that if the
Registration Statement or the Prospectus is amended or supplemented solely to
include financial information as of and for a fiscal quarter, Deloitte & Touche
LLP may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless any other information included
therein of an accounting, financial or statistical nature is of such a nature
that, in your reasonable judgment, such letter should cover such other
information.
29
(e) Each time that OEH amends or supplements the Registration Statement or
the Prospectus by filing with the Commission a quarterly report pursuant to
Section 13 or 15(d) of the 1934 Act, OEH will cause to be furnished forthwith to
you and your counsel a written Rule 10b-5 certification of Xxxxxx Xxxxxxx &
Xxxxxxx LLP or other United States counsel reasonably satisfactory to you, dated
the date of delivery of such opinion, substantially in the form set forth in the
last paragraph of Section 5(b)(1) of this Agreement but modified, as necessary,
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certification.
SECTION 7. Indemnification.
(a) Indemnification of Agent and Others. OEH and the Selling Shareholder,
jointly and severally, agree to indemnify and hold harmless you, any other
selling agents or underwriters who may in the future participate in the offering
of the Shares hereunder (collectively with you, the "Underwriters"), affiliates,
as defined in Rule 405 under the 1933 Act, of the Underwriters ("Affiliates"),
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission if such settlement is effected with
the written consent of OEH and the Selling Shareholder;
(3) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened and to which you are a party, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subsection (1) or (2) above; and
(4) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any failure by the Selling
Shareholder to comply with its obligation to deliver Shares to any
purchaser hereunder or pursuant to any Terms Agreement (such indemnity for
failure to deliver Shares to be provided to the same extent
30
that indemnity is provided in subsections (1)-(3) above with respect to
untrue statements and omissions); provided that this indemnity, as to any
preliminary prospectus, shall not inure to the benefit of any person on
account of any loss, liability, claim, damage, or expense arising from the
sale of the Shares to any person by you if you failed to send or give a
copy of any subsequent preliminary prospectus or the Prospectus to such
person within the time required by the 1933 Act, and the untrue statement
or alleged untrue statement or mission or alleged omission of a material
fact in such preliminary prospectus was corrected in the subsequent
preliminary prospectus or the Prospectus, unless such failure resulted from
noncompliance by OEH with Section 3(c) hereof; and provided further, that
this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and
in conformity with written information furnished to OEH and the Selling
Shareholder by you expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) (the "Furnished Information").
(b) Indemnification of OEH, the Selling Shareholder and Others. You agree
to indemnify and hold harmless OEH, the Selling Shareholder, OEH's directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls OEH or the Selling Shareholder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section 7, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with the Furnished Information.
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to paragraph 7(a) above,
counsel to the indemnified parties shall be selected by you, and, in the case of
parties indemnified pursuant to paragraph 7(b) above, counsel to the indemnified
parties shall be selected by OEH and the Selling Shareholder. An indemnifying
party may participate at its own expense in the defense of any such action;
provided that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the
31
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
subsection 7(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section 7 shall not affect any agreement between OEH and the Selling
Shareholder with respect to indemnification.
SECTION 8. Contribution. If the indemnification provided for in Section 7
is for any reason unavailable to or insufficient to hold harmless an indemnified
party under Section 7 in respect to any loss, liability, claim, damage or
expense, or any action in respect thereof, referred to therein, then each
indemnifying party will, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, liability, claim, damage or expense, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received from the sale of the Shares hereunder by OEH and the Selling
Shareholder, on the one hand, and by the Underwriters, on the other hand, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
OEH and the Selling Shareholder, on the one hand, and the Underwriters, on the
other hand, with respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, or action in respect thereof, as well
as any other relevant equitable considerations. The relative benefits received
by OEH and the Selling Shareholder, on the one hand, and the Underwriters, on
the other hand, with respect to the offering of the Shares under this Agreement
will 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 Selling Shareholder, on the one hand, and the total
brokerage and underwriting discounts and commissions received by the
Underwriters with respect to the Shares purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the Shares
under this Agreement. The relative fault will be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by OEH
or the Selling Shareholder or by the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission.
32
OEH and the Selling Shareholder and you agree that it would not be just and
equitable if contributions pursuant to this Section 8 were to be determined by
pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, liability, claim,
damage or expense or action in respect thereof, referred to above in this
Section 8 will be deemed to include, for purposes of this Section 8, any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, you will not be required
to contribute any amount in excess of the amount by which the total price at
which the Shares distributed by you hereunder was offered to the public exceeds
the amount of any damages which you have otherwise paid or become liable to pay
by reason of any 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 0000 Xxx) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
SECTION 9. Representations and Indemnities to Survive Delivery. The
respective representations, warranties and agreements contained in this
Agreement or in certificates of officers of OEH, the Selling Shareholder, their
respective officer or subsidiaries, and you set forth in or made pursuant to any
Pricing Agreement shall remain operative and in full force and effect,
regardless (i) of any investigation made by or on behalf of you or your
Affiliates or selling agents, any person controlling you, your officers or
directors or any person controlling OEH and (ii) delivery of and payment for the
Shares.
SECTION 10. Your Status as Agent. In selling the Shares for the Selling
Shareholder, you are acting solely as agent for the Selling Shareholder, and not
as principal, except as otherwise provided in paragraph 2(b) hereof. When acting
solely as agent, you will make reasonable efforts to assist the Selling
Shareholder in obtaining performance by each purchaser whose offer to purchase
Shares from the Selling Shareholder has been accepted on behalf of the Selling
Shareholder, but you will not have any liability to the Selling Shareholder if
any such purchase is not consummated for any reason.
SECTION 11. Termination. This Agreement may be terminated for any reason at
any time by any party hereto by giving five days' written notice of such
termination to the other party hereto. You may also terminate this Agreement and
any existing Terms Agreement immediately (i) if there has been, since the
respective dates as of which information is given in the Registration Statement,
any Material Adverse Change, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets or any outbreak or escalation of hostilities or other calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in your reasonable judgment, impracticable to market the
Shares, or (iii) if trading in any securities of OEH has been suspended by the
Commission or a national securities exchange, or if trading generally on either
the New York Stock Exchange or the Nasdaq Stock Market has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have
33
been required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal, New York or United Kingdom authorities, or (iv) a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, or (v) a stop order suspending the
effectiveness of either Registration Statement or an order preventing or
suspending the use of the Prospectus shall have been entered and shall not have
been lifted or removed, or (vi) any event shall have occurred as a result of
which the Prospectus would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein in the light of the circumstances under which they are made not
misleading, and OEH will not have complied with Section 3(b) of this Agreement.
In the event of any such termination, a party hereto will not have any liability
to the other parties hereto (including any obligation of yours to complete a
purchase of Shares as principal or to complete a sale as agent hereunder),
except that (i) you will be entitled to any commissions earned in accordance
with the third paragraph of paragraph 2(a) hereof, (ii) if at the time of
termination, (A) you own any of the Shares with the intention of reselling them,
or (B) an offer to purchase any of the Shares has been accepted on behalf of the
Selling Shareholder but the time of delivery to the purchaser or its agent of
the Shares relating thereto has not occurred, the covenants set forth in
Sections 3 and 6 hereof and the conditions in Section 5 hereof will remain in
effect until such Shares are so resold or delivered, as the case may be, and
(iii) the covenant set forth in paragraph 3(g) hereof, the provisions of Section
4 hereof, the indemnity provisions of Section 7 hereof, the contribution
provisions of Section 8 hereof and the provisions of Sections 9, 10 and 13
hereof will remain in effect.
SECTION 12. Notices. All notices and other communications hereunder will be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to you should be directed to
[name] _____________, [address] __________________, New York, New York 100__,
attention of _____________ (fax ( ) ________). Notices to OEH or the Selling
Shareholder should be directed to OEH at 00 Xxxxxxxx Xxxxxx, Xxxxxxxx XX 12,
Bermuda, attention of the Secretary (fax (000) 000-0000), with copies to
Orient-Express Hotels Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Xxxx X. Xxxxxx, Xx., Esq. (fax (000) 000-0000); to
Orient-Express Services Ltd., Sea Containers House, 00 Xxxxx Xxxxxx, Xxxxxx XX0
0XX, Xxxxxxx, attention of Xxxxx X. Xxxxxxxxxxxx, Esq. (fax
000-00-000-000-0000); and to Xxxxxxx Xxxxx-Xxxx, Esq., Xxxxxx Xxxxxxx & Xxxxxxx
LLP, 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax (000) 000-0000).
SECTION 13. Parties. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon you, on the one hand, and OEH and the Selling
Shareholder, on the other, and your and its respective successors. Nothing
expressed or mentioned in this Agreement or any Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Section 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any Terms Agreement, or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and their respective successors and said
controlling persons and officers and directors and their heirs and legal
34
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Shares will be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Governing Law. THIS AGREEMENT AND ANY TERMS AGREEMENT, AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES CREATED HEREBY AND THEREBY, ARE AND WILL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Counterparts. This Agreement and any Terms Agreement may be
executed in one or more counterparts and, when a counterpart has been executed
by each party, all such counterparts taken together will constitute one and the
same agreement.
SECTION 16. Submission to Jurisdiction. Any legal action or proceeding with
respect to this Agreement and any Terms Agreement, the Shares or any document
related thereto may be brought in the courts of the State of New York in the
County of New York or the United States District Court for the Southern District
of New York and, by execution and delivery of this Agreement, OEH and the
Selling Shareholder hereby accept for themselves and in respect of their
respective properties, generally and unconditionally, the jurisdiction of the
aforesaid courts in any such legal action or proceeding. The parties hereto
hereby irrevocably waive trial by jury, and OEH and the Selling Shareholder
hereby irrevocably waive any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
conveniens, which they may now or hereafter have to the bringing of any such
action or proceeding in such respective jurisdictions. OEH and the Selling
Shareholder hereby irrevocably designate Orient-Express Hotels Inc. and
Corporation Service Company as the designees, appointees and agents of OEH and
the Selling Shareholder to receive, for and on behalf of OEH and the Selling
Shareholder, service of process in such respective jurisdictions in any legal
action or proceeding with respect to this Agreement, any Terms Agreement, the
Shares or any document related thereto. It is understood that a copy of such
process served on either such agent will be promptly forwarded to OEH and the
Selling Shareholder at their addresses set forth in Section 12, but the failure
of OEH or the Selling Shareholder to receive such copy will not affect in any
way the service of such process. In addition to service on OEH's and the Selling
Shareholder's process agent, OEH and the Selling Shareholder further irrevocably
consent to the service of process of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to OEH and the Selling Shareholder at their
said address, such service to become effective 10 days after such mailing.
Nothing herein will affect your right or the right of any holder of Shares to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against OEH in any other jurisdiction.
35
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to OEH a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and OEH
and the Selling Shareholder in accordance with its terms.
Very truly yours,
ORIENT-EXPRESS HOTELS LTD.
By: _____________________
Name:
Title:
SEA CONTAINERS LTD.
By: _____________________
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
[Name of Selling Agent]
By:
By: _____________________
Name:
Title:
36
EXHIBIT A
ORIENT-EXPRESS HOTELS LTD.
(a Bermuda company)
9,903,300 Class A Common Shares
(par value $.01 each)
TERMS AGREEMENT
[Date]
Re: Sales Agreement dated ___________ __, 200__
The undersigned agrees to purchase _______ Shares on the following terms:
Initial Public Offering Price: $_____ per Share
Discount: _ %
Proceeds to Sea Containers Ltd. : $_____ per Share
Settlement Date, Time and Place:
Lock-up provisions, if any:
[The certificate referred to in Section 5(c) of the Sales Agreement, the
opinions referred to in paragraph 5(b) of the Sales Agreement, and the
accountants' letter referred to in paragraph 5(e) of the Sales Agreement will be
required.]
[Name of Selling Agent]
By:
By: _____________________
Name:
Title:
Accepted:
ORIENT-EXPRESS HOTELS LTD.
By: _____________________
Name:
Title:
SEA CONTAINERS LTD.
By: _____________________
Name:
Title:
EXHIBIT B
Administrative Procedures
ORIENT-EXPRESS HOTELS LTD.
9,903,300 Class A Common Shares
(par value $.01 each)
Up to 9,903,300 shares (the "Shares") of the class A common shares, par
value $.01 each, of Orient-Express Hotels Ltd., a Bermuda company ("OEH"), are
to be offered on a continuing basis by Sea Containers Ltd., a Bermuda company
("SCL"). [ ], as agent (the "Agent"), has agreed to use its best efforts to sell
the Shares directly for SCL, and may also purchase Shares, as principal, for
resale. The Shares are being sold pursuant to a Sales Agreement between OEH and
SCL and the Agent dated __________ __, 2005 (the "Sales Agreement"). The Shares
have been registered under the Securities Act of 1933 with the Securities and
Exchange Commission (the "Commission").
Administrative procedures and specific terms of the offering are explained
below. Administrative responsibilities, document control and record-keeping
functions will be performed for OEH and SCL by Xxxx X. Xxxxxx, Xx. and Xxxxx X.
Xxxxxxxxxxxx.
Confirmation: At the close of business on each day on which
Shares are sold hereunder (a "trade date"), the
Agent will issue a confirmation for the day's
transactions by fax or e-mail to Xxxxx X.
Xxxxxxxxxxxx at Orient-Express Hotels Ltd., London,
England (fax 000-00-000-000-0000, e-mail
xxxxx.xxxxxxxxxxxx@xxxxxxxxxxxxx.xxx), with a copy
to Xxxx X. Xxxxxx, Xx. at Orient-Express Hotels
Inc. in New York (fax 000-000-0000, e-mail
xxxx.xxxxxx@xxxxxxxxxxxxx.xxx) containing the
following key details:
1. The number of Shares sold for SCL.
2. The prices at which the Shares were sold.
3. The commissions payable to the Agent by SCL.
4. Other applicable charges, such as transfer
taxes.
5. The net proceeds payable to SCL.
6. The date or dates of settlement.
Settlement Date: 3 business days after the trade date (the "
settlement date").
Denomination and
Registration: Credit to the Agent's account at The
Depository Trust Company of the total
number of Shares to be settled on the
settlement date, unless other instructions
are given to SCL by the Agent at least 48
hours prior to the settlement date. All
certificates will be registered in the name
of Cede & Co. unless other instructions are
given to SCL by the Agent at least 48 hours
prior to the settlement date.
B-1
Details for Settlement: On the day after a trade date, OEH and/or SCL will
authorize EquiServe Trust Company N.A., as transfer
agent, by fax or e-mail to deliver certificate(s)
or credit Shares to Agent's Depository Trust
Company account on the settlement date upon
telephonic, fax or e-mail authorization by SCL on
such date. SCL will indicate denominations of
certificate(s). On the settlement date, Agent will
credit the amount of net sales proceeds to the
account of SCL with Agent or send New York Clearing
House funds in the amount of net sales proceeds
(sales price less commission and transfer taxes) by
wire to ___________________________, for the
account of SCL, Account No. ______________________,
ABA Code _______________, Swift Code _____________,
or to __________ for the account of Sea Containers
Ltd., Account No. ______________, ABA Code
____________, Swift Code _____________. Upon
telephonic receipt of funds wire number, SCL will
authorize EquiServe Trust Company N.A. by
telephone, fax or e-mail to release certificates
to Agent.
Delivery of Certificates: EquiServe Trust Company N.A. will release the
Shares to Agent on telephonic authorization by SCL.
Shares will be delivered for the account of the
Agent through The Depository Trust Company, not
later than 10:00 a.m., New York City time, on the
third business day after the trade date for the
sale of such Shares; provided that SCL and the
Agent may agree that delivery of and payment for
Shares sold in particular transactions and/or
payment of commissions in respect thereof is to be
made at such other times and places and in such
other manner as for SCL and the Agent may
determine.
Fails: If on the settlement date the Shares are
ready for delivery but Agent does not wire
funds to SCL, or credit net sales proceeds to
SCL's account with Agent, Agent will pay
interest to SCL for each day's delay at the
federal funds rate.
Suspension of Sales;
Amendment or Supplement: SCL will give Agent telephonic notice of
suspension, amendment or supplement,
confirmed by fax or e-mail.
Delivery of Prospectus: SCL will deliver to Agent such
number of copies of the Prospectus as the
Agent may reasonably request. OEH will file
seven current Prospectus with the New York
Stock Exchange, or such other number as may
be required from time to time pursuant to
Rule 153.
Payment of Selling
Commissions and
Transfer Taxes: Commissions and taxes will be deducted from sales
prices paid to SCL.
B-2
