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Exhibit 1.1
UNDERWRITING AGREEMENT
$1,500,000,000
SONY CORPORATION
% Notes due ___, 2003
Underwriting Agreement
________ __, 1998
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
X.X. Xxxxxx Securities Inc.
As Representatives of the
Several Underwriters Listed
in Schedule I
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Sony Corporation, a Japanese corporation (the "Company"), proposes to
issue and sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), $1,500,000,000 principal amount of its _____% Notes due ___,
2003 (the "Securities"). The Securities will be issued pursuant to the
provisions of an Indenture to be dated as of _________ __, 1998 between the
Company and The Chase Manhattan Bank, as Trustee (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form F-3 (File No. 333-45141), including a prospectus, relating to
the Securities. The registration statement as amended at the time when it became
effective, or, if a post-effective amendment is filed with respect thereto, as
amended by such post-effective amendment at the time of its effectiveness,
including in each case information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act, is referred to in this Agreement as the "Registration
Statement", and the prospectus in the form first used to confirm sales of
Securities is referred to in this Agreement as the "Prospectus". If the Company
has filed an abbreviated registration statement pursuant to
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Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement. Any reference in this Agreement
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form F-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such preliminary
prospectus or the Prospectus, as the case may be, and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
Each Underwriter severally represents and agrees that it has not
offered or sold, and it will not offer or sell, directly or indirectly any of
the Securities in or to or for the benefit of any resident of Japan or to any
persons for reoffering or resale, directly or indirectly, in Japan or to or for
the benefit of any resident of Japan except pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan available
thereunder and in compliance with the other relevant laws and regulations of
Japan.
Each Underwriter severally represents and agrees that (1) it has not
offered or sold and will not offer or sell any Securities in the United Kingdom
prior to admission of the Securities to listing in accordance with Part IV of
the Financial Services Xxx 0000 (the "Act") except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 or the Act, (2) it has complied and will
comply with all applicable provisions of the Act with respect to anything done
by it in relation to the Securities in, from or otherwise involving the United
Kingdom and (3) it has only issued or passed on and will issue or pass on in the
United Kingdom any document received by it in connection with the issue of the
Securities, other than any document which consists of or any part of listing
particulars, supplementary listing particulars or any other document required or
permitted to be published by the listing rules under Part IV of the Act, to a
person who is of a kind described in Article 11(3) of the Financial Services Xxx
0000 (Investment Advertisements) (Exemptions) Order 1996 (as amended) or is a
person to whom such document may otherwise lawfully be issued or passed on.
Each Underwriter severally agrees that it will not offer, sell or
deliver, directly or indirectly, any Securities or distribute the Prospectus or
any other offering material relating to the Securities, in or from any
jurisdiction except under circumstances that will result in compliance with
applicable laws and regulations thereof.
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The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set forth
opposite such Underwriter's name in Schedule I hereto at a price equal to
______% of their principal amount plus accrued interest, if any, from
______________, 1998 to the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Securities as soon after the
parties hereto have executed and delivered this Agreement, as in the judgment of
the Representatives is advisable and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives at [10:00 AM New York City Time] on ________ __, 1998, or at
such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Representatives and the Company may agree upon
in writing. The time and date of such payment is referred to herein as the
"Closing Date". As used herein, the term "Business Day" means any day other than
a day on which banks are permitted or required to be closed in New York City.
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes
(collectively, the "Global Note") representing the Securities, with any transfer
taxes payable in connection with the transfer to the Underwriters of the
Securities duly paid by the Company. The Global Note will be made available for
inspection by the Representatives at the office of the Trustee, 000 X. 00xx Xx.,
00xx Xxxxx, Xxx Xxxx, XX 00000-0000, not later than 1:00 P.M., New York City
time, on the Business Day prior to the Closing Date.
As compensation to the Underwriters for their commitments hereunder,
the Company will pay, or cause to be paid, to X.X. Xxxxxx Securities Inc., for
the accounts of the several Underwriters, an amount equal to % of the principal
amount of the Securities to be delivered by the Company hereunder on the Closing
Date. On ________ __, 1998, or on such other date, no later than the fifth
Business Day thereafter, as the Representatives and the Company may agree upon
in writing, the Company will pay or cause to be paid, by wire transfer, in
immediately available funds, such commission to the account specified by X.X.
Xxxxxx Securities Inc.
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4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the
use of any preliminary prospectus has been issued by
the Commission, and each preliminary prospectus filed
as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with
the Securities Act, and did not contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading; provided that this
representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information relating to any
Underwriter furnished to the Company in writing by
such Underwriter through the Representatives
expressly for use therein;
(b) the Registration Statement has been
declared effective by the Commission; no stop order
suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of
the Company, threatened by the Commission; and the
Registration Statement and the Prospectus (as amended
or supplemented if the Company shall have furnished
any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material
respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder
(collectively, the "Trust Indenture Act") and do not
and will not, as of the applicable effective date as
to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and the Prospectus, as amended or
supplemented, if applicable, at the Closing Date will
not contain any untrue statement of a material fact
or omit to state a material fact necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading; except that the foregoing representations
and warranties shall not apply to (i) that part of
the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1)
of the Trustee under the Trust Indenture Act, and
(ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and
in conformity with information relating to any
Underwriter furnished to the Company in writing by
such Underwriter through the Representatives
expressly for use therein;
(c) the documents incorporated by reference
in the Prospectus, when they
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were filed with the Commission, conformed in all
material respects to the requirements of the Exchange
Act and none of such documents contained an untrue
statement of a material fact or omitted to state a
material fact necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading; and any further
documents so filed and incorporated by reference in
the Prospectus, when such documents are filed with
the Commission, will conform in all material
respects to the requirements of the Exchange Act, and
will not contain an untrue statement of a material
fact or omit to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they are made, not
misleading;
(d) the financial statements, and the
related notes thereto, incorporated by reference in
the Registration Statement and the Prospectus present
fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations
and the changes in their consolidated cash flows for
the periods specified; and said financial statements
have been prepared in conformity with generally
accepted accounting principles applied on a
consistent basis, and the supporting schedules
incorporated by reference in the Registration
Statement present fairly the information required to
be stated therein;
(e) since the respective dates as of which
information is given in the Registration Statement
and the Prospectus, there has not been any material
change in the capital stock or any material increase
in long-term debt of the Company or any of its
subsidiaries, or any material adverse change, or any
development involving a prospective material adverse
change, in or affecting the general affairs,
business, prospects, management, financial position,
stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated
in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of
business) material to the Company and its
subsidiaries taken as a whole;
(f) the Company has been duly incorporated
and is validly existing as a Kabushiki Kaisha under
the laws of Japan, with power and authority
(corporate and other) to own its properties and
conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation
for the transaction of business and is in good
standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any
business, so as to require such qualification, other
than where the failure to be so qualified or in
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good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as
a whole;
(g) each of the Company's significant
subsidiaries (as such term is defined under Rule 102
of Regulation S-X of the Securities Act) has been
duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate
and other) to own its properties and conduct its
business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the
transaction of business and is in good standing under
the laws of each jurisdiction in which it owns or
leases properties, or conducts any business, so as to
require such qualification, other than where the
failure to be so qualified or in good standing would
not have a material adverse effect on the Company and
its subsidiaries taken as a whole; and all the
outstanding shares of capital stock of each
significant subsidiary (as such term is defined under
Rule 102 of Regulation S-X of the Securities Act) of
the Company have been duly authorized and validly
issued, are fully-paid and non-assessable, and
(except in the case of non-Japanese subsidiaries, for
directors' qualifying shares) are owned by the
Company, directly or indirectly, free and clear of
all liens, encumbrances, security interests and
claims;
(h) this Agreement has been duly authorized,
executed and delivered by the Company;
(i) the Securities have been duly
authorized, and, when issued and delivered pursuant
to this Agreement, will have been duly executed,
authenticated, issued and delivered, will constitute
valid and binding obligations of the Company
enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of
general applicability relating to or affecting
creditors' rights and to general equity principles,
and will be entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized and
has been duly qualified under the Trust Indenture Act
and, when executed and delivered by the Company and
the Trustee, will constitute a valid and binding
agreement of the Company enforceable in accordance
with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and
other similar laws of general applicability relating
to or affecting creditors' rights and to general
equity principles; and the Securities and the
Indenture will conform to the descriptions thereof in
the Prospectus;
(j) neither the Company nor any of its
subsidiaries is, or with the giving of notice or
lapse of time or both would be, in violation of or in
default under, its
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Articles of Incorporation or Regulations of the Board
of Directors or any indenture, mortgage, deed of
trust, loan agreement or other agreement or
instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them
or any of their respective properties is bound,
except for violations and defaults which individually
and in the aggregate are not material to the Company
and its subsidiaries taken as a whole or to the
holders of the Securities; the issue and sale of the
Securities as contemplated herein and the performance
by the Company of all of its obligations under the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its
subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action
result in any violation of the provisions of the
Articles of Incorporation or the Regulations of the
Board of Directors of the Company or any applicable
law or statute or any order, rule or regulation of
any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or
any of their respective properties; and no consent,
approval, authorization, order, license, registration
or qualification of or with any such court or
governmental agency or body is required for the issue
and sale of the Securities or the consummation by the
Company of the transactions contemplated by this
Agreement or the Indenture, except (i) for such
consents, approvals, authorizations, registrations or
qualifications as have been obtained under Japanese
law, (ii) for such consents, approvals,
authorizations, orders, licenses, registrations or
qualifications as have been obtained under the
Securities Act and the Trust Indenture Act and (iii)
such as have been obtained and are in full force and
effect under the Financial Services Xxx 0000.
(k) other than as set forth or contemplated
in the Prospectus, there are no legal or governmental
investigations, actions, suits or proceedings pending
or, to the knowledge of the Company, threatened
against or affecting the Company or any of its
subsidiaries or any of their respective properties or
to which the Company or any of its subsidiaries is or
may be a party or to which any property of the
Company or any of its subsidiaries is or may be the
subject which, if determined adversely to the Company
or any of its subsidiaries, could individually or in
the aggregate have, or reasonably be expected to
have, a material adverse effect on the general
affairs, business, prospects, management, financial
position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken
as a whole, and, to the best of the Company's
knowledge, no such proceedings are threatened or
contemplated by governmental
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authorities or threatened by others; and there are no
statutes, regulations, contracts or other documents
that are required to be filed as an exhibit to the
Registration Statement or required to be described in
the Registration Statement or the Prospectus which
are not filed or described as required;
(l) Price Waterhouse, who have certified certain
financial statements of the Company and its subsidiaries
incorporated by reference in the Registration Statement and
the Prospectus, are independent public accountants as required
by the Securities Act;
(m) the Company and its subsidiaries have good and
marketable title to all material items of real, personal and
intellectual property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as
are described or referred to in the Prospectus or such as do
not materially affect the value of such property and do not
materially interfere with the use made or proposed to be made
of such property by the Company and its subsidiaries; and any
real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, existing
and enforceable leases with such exceptions as are not
material and do not materially interfere with the use made or
proposed to be made of such property and buildings by the
Company or its subsidiaries;
(n) no relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries on the
one hand, and the directors, officers, stockholders, customers
or suppliers of the Company or any of its subsidiaries on the
other hand, which is required by the Securities Act to be
described in the Registration Statement and the Prospectus
which is not so described;
(o) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Prospectus, will not
be an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act");
(p) the Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida) relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba;
(q) each of the Company and its subsidiaries owns,
possesses or has obtained all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and
has made all declarations and filings with, all federal,
state, local and other governmental authorities (including
foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or
foreign, necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as
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conducted as of the date hereof, other than where the failure
to obtain such license, permit, certificate, consent, order,
approval or other authorization would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole and neither the Company nor any such subsidiary has
received any actual notice of any proceeding relating to
revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization,
except as described in the Registration Statement and the
Prospectus; and each of the Company and its subsidiaries is in
compliance in all material respects with all laws and
regulations relating to the conduct of its business as
conducted as of the date hereof;
(r) the Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any
such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries,
taken as a whole; and
(s) under current Japanese laws and regulations, no
stock exchange, stamp or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to Japan
or to any political subdivision or taxing authority thereof or
therein in connection with, and the Underwriters will not be
deemed to be doing business in Japan solely by virtue of, (i)
the sale of the Securities as contemplated herein or (ii) the
execution and performance of this Agreement.
5. The Company covenants and agrees with each of the
several Underwriters as follows:
(a) if required, to file the final
Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rule 430A under
the Securities Act; and to file promptly all reports
required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), or 15(d)
of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a
prospectus is required in connection with the
offering or sale of the Securities and to furnish
copies of the Prospectus to the Underwriters in New
York City prior to 10:00 a.m., New York City time, on
the Business Day next succeeding the date of this
Agreement in such quantities as the Representatives
may reasonably request;
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(b) to deliver, at the expense of the Company, to the
Representatives, four signed copies of the Registration
Statement (as originally filed) and each amendment thereto, in
each case including exhibits and documents incorporated by
reference therein, and to each other Underwriter a conformed
copy of the Registration Statement (as originally filed) and
each amendment thereto, in each case without exhibits but
including the documents incorporated by reference therein and,
during the period mentioned in paragraph (e) below, to each of
the Underwriters as many copies of the Prospectus (including
all amendments and supplements thereto) as the Representatives
may reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or
after the time the Registration Statement becomes effective,
to furnish to the Representatives a copy of the proposed
amendment or supplement for review and not to file any such
proposed amendment or supplement to which the Representatives
reasonably object;
(d) to advise the Representatives promptly,
and to confirm such advice in writing, (i) when any
amendment to the Registration Statement has been
filed or becomes effective, (ii) when any supplement
to the Prospectus or any amendment to the Prospectus
has been filed and to furnish the Representatives
with copies thereof, (iii) of any request by the
Commission for any amendment to the Registration
Statement or any amendment or supplement to the
Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or of any order preventing or suspending
the use of any preliminary prospectus or the
Prospectus or the initiation or threatening of any
proceeding for that purpose, (v) of the occurrence of
any event, within the period referenced in paragraph
(e) below, as a result of which the Prospectus as
then amended or supplemented would include an untrue
statement of a material fact or omit to state any
material fact necessary in order to make the
statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not
misleading, and (vi) of the receipt by the Company of
any notification with respect to any suspension of
the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
to use its best efforts to prevent the issuance of
any such stop order, or of any order preventing or
suspending the use of any preliminary prospectus or
the Prospectus, or of any order suspending any such
qualification of the Securities, or notification of
any such order thereof and, if issued, to obtain as
soon as possible the withdrawal thereof;
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(e) if, during such period of time after the
first date of the public offering of the Securities
as in the opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by
law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur as a
result of which it is necessary to amend or
supplement the Prospectus in order to make the
statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of
the Company, to the Representatives for transmittal
to the Underwriters and to the dealers (whose names
and addresses the Representatives will furnish to the
Company) to which Securities may have been sold by
the Representatives on behalf of the Underwriters and
to any other dealers upon request, such amendments
or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus
will comply with law;
(f) to make generally available to its
security holders and to the Representatives as soon
as practicable an earnings statement which will
satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter
of the Company occurring after the "effective date"
(as defined in Rule 158) of the Registration
Statement;
(g) so long as the Securities are
outstanding, to furnish to the Representatives copies
of all reports or other communications (financial or
other) furnished to holders of the Securities, and
copies of any reports and financial statements
furnished to or filed with the Commission or any
national securities exchange;
(h) during the period beginning on the date
hereof and continuing to and including the Business
Day immediately following the Closing Date, not to
offer, sell, contract to sell, or otherwise dispose
of any debt securities of or guaranteed by the
Company which are substantially similar to the
Securities;
(i) to use the net proceeds received by the
Company from the sale of the Securities pursuant to
this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(j) to use its best efforts to list, subject
to notice of issuance, the Securities on the London
Stock Exchange Limited (the "Exchange") and to supply
to the
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Representatives for delivery to the Exchange copies
of the Prospectus and other such documents,
information and undertakings as may be required for
the purpose of obtaining such listing; and
(k) whether or not the transactions
contemplated in this Agreement are consummated or
this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the
performance of its obligations hereunder, including
without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of
the Securities, including any fees and expenses of
the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any
preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii)
in connection with the listing of the Securities on
the Exchange, (iv) in connection with the printing
(including word processing and duplication costs) and
delivery of this Agreement and the Indenture, and the
furnishing to Underwriters and dealers of copies of
the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided,
(v) payable to rating agencies in connection with the
rating of the Securities, (vi) incident to the
preparation of notes evidencing the Securities, (vii)
all roadshow expenses and (viii) all reasonable and
documented other out-of-pocket expenses (including
the fees and disbursements of special U.S. counsel
for the Underwriters) incurred by the Underwriters in
connection with the transactions contemplated hereby.
6. The several obligations of the Underwriters hereunder to
purchase the Securities on the Closing Date are subject to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) if a post-effective amendment to the
Registration Statement is required to be filed under
the Securities Act, such post-effective amendment
shall have become effective not later than 5:00 P.M.,
New York City time, on the date hereof; and no stop
order suspending the effectiveness of the
Registration Statement or any post-effective
amendment shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by
the Commission; the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) within
the applicable time period prescribed for such filing
by the rules and regulations under the Securities Act
and in accordance with Section 5(a) hereof; and all
requests for additional information on the part of
the Commission shall have been complied with to the
satisfaction of the Representatives;
(b) the representations and warranties of
the Company contained herein
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shall be true and correct on and as of the Closing
Date as if made on and as of the Closing Date and the
Company shall have complied with all agreements and
all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery
of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any
downgrading, (ii) any intended or potential
downgrading or (iii) any review or possible change
that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the
Company by any "nationally recognized statistical
rating organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which
information is given in the Prospectus there shall
not have been any material change in the capital
stock or any material increase in the long-term debt
of the Company or any of its subsidiaries or any
material adverse change, or any development involving
a prospective material adverse change, in or
affecting the general affairs, business, prospects,
management, financial position, stockholders' equity
or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus, the effect
of which in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on
the Closing Date on the terms and in the manner
contemplated in the Prospectus; and neither the
Company nor any of its subsidiaries shall have
sustained since the date of the latest audited
financial statements included in the Prospectus any
material loss or interference with its business from
fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute
or court or governmental action, order to decree,
otherwise than as set forth or contemplated in the
Prospectus;
(e) the Representatives shall have received
on and as of the Closing Date a certificate of an
executive officer of the Company, with specific
knowledge about the Company's financial matters,
satisfactory to the Representatives to the effect set
forth in subsections (b) through (d) (with respect to
the respective representations, warranties,
agreements and conditions of the Company) of this
Section and to the further effect that there has not
occurred any material adverse change, or any
development involving a prospective material adverse
change, in or affecting the general affairs,
business, prospects, management, financial position,
stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole from
that set forth or contemplated in the Registration
Statement;
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(f) Each of Standard & Poor's Corporation
("S&P") and Xxxxx'x Investors Service, Inc.
("Moody's") shall have rated the Securities not lower
than A (in the case of S&P) and not lower than Aa3
(in the case of Moody's), neither of such ratings
shall have been lowered and neither S&P nor Moody's
shall have publicly announced that it has under
surveillance or review, with negative implications,
its rating of the Securities.
(g) Tsunematsu Yanase & Sekine, Japanese
counsel for the Company, shall have furnished to the
Representatives their written opinion, dated the
Closing Date, in form and substance satisfactory to
the Representatives, to the effect that:
(i) the Company has been duly
incorporated and is validly existing as a
corporation under the laws of Japan, with
power and authority (corporate and other) to
own its properties and conduct its business
as described in the Prospectus;
(ii) The Company has an authorized
capital as set forth in the Prospectus;
(iii) other than as set forth or
contemplated in the Prospectus, to the best
of such counsel's knowledge, there are no
legal or governmental investigations,
actions, suits or proceedings pending or
threatened against or affecting the Company
or any of its subsidiaries or any of their
respective properties or to which the
Company or any of its subsidiaries is or may
be a party or to which any property of the
Company or its subsidiaries is or may be the
subject which, if determined adversely to
the Company or any of its subsidiaries,
could individually or in the aggregate have,
or reasonably be expected to have, a
material adverse effect on the general
affairs, business, prospects, management,
financial position, stockholders' equity or
results of operations of the Company and its
subsidiaries taken as a whole; and such
counsel does not know of any statutes,
regulations, contracts or other documents
required to be described in the Registration
Statement or Prospectus or to be filed as
exhibits to the Registration Statement that
are not described or filed as required;
(iv) The Securities will be direct,
unconditional, unsubordinated and unsecured
obligations of the Company, and will rank
pari passu among themselves and equally with
all other unsecured, unsubordinated
obligations of the Company (other than those
preferred by law);
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(v) The Securities have been duly
authorized and executed by the Company and,
assuming that the same being authenticated
by the Trustee and delivered as contemplated
by the Indenture and that the Securities are
valid and legally binding obligations of the
Company enforceable in accordance with their
terms under the laws of the State of New
York, are valid and legally binding
obligations of the Company enforceable in
accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws
of general applicability relating to or
affecting creditors' rights;
(vi) The Indenture has been duly
authorized and executed by the Company and,
assuming that the Indenture is a valid and
legally binding obligation of the Company
enforceable in accordance with its terms
under the laws of the State of New York,
constitutes a valid and legally binding
obligation of the Company enforceable in
accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws
of general applicability relating to or
affecting creditors' rights;
(vii) the issue and sale of the
Securities and the performance by the
Company of its obligations under the
Securities, the Indenture and this Agreement
and the consummation of the transactions
herein and therein contemplated will not
conflict with or result in a breach of any
of the terms or provisions of, or constitute
a default under, any indenture, mortgage,
deed of trust, loan agreement or other
agreement or instrument known to such
counsel to which the Company or any of its
subsidiaries is a party or by which the
Company or any of its subsidiaries is bound,
nor will any such action result in any
violation of the provisions of the Articles
of Incorporation or the Regulations of the
Board of Directors of the Company [or any of
its subsidiaries incorporated in Japan] or
any applicable Japanese law or statute or
any order, rule or regulation of any court
or governmental agency or body having
jurisdiction over the Company, [its
subsidiaries incorporated in Japan or any of
their respective properties];
(viii) Except for such consents,
approvals, authorizations, registrations,
qualifications, notifications, reporting or
exemption therefrom as may be required under
the Japanese Foreign Exchange and Foreign
Trade Control Law and the regulations
thereunder as have been obtained or made and
are in full force and effect, no consent,
approval, authorization or order of, or
filing or registration with, or notification
or
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prior reporting to, any court or
governmental agency or body having
jurisdiction over the Company is required
under Japanese law for the execution,
delivery and performance of this Agreement
and the Indenture by the Company and the
consummation of the transactions
contemplated hereby and thereby including
the issuance, authentication, sale and
delivery of the Securities, and compliance
with the terms thereof;
(ix) The statements with respect to
or involving Japanese law set forth in the
Registration Statement and the Prospectus
are true and correct;
(x) The statements in the Prospectus
under "Enforcement of Civil Liabilities",
and "Japanese Foreign Exchange Controls",
insofar as they describe Japanese statutes,
rules and regulations, constitute a accurate
summary thereof;
(xi) The statements in the
Prospectus under "Japanese Taxation" in so
far as they describe Japanese tax law,
constitute an accurate summary of the
material Japanese tax consequences of the
ownership and disposition of the Securities;
(xii) No stock exchange, stamp or
other issuance or transfer taxes or duties
and no capital gains, income, withholding or
other taxes are payable in Japan with
respect to the authorization, issuance, sale
and delivery of the Securities by the
Company to the Underwriters and (assuming
that the Underwriters have no permanent
establishment within Japan and, further, the
Securities are not located within Japan
immediately prior to the sale or delivery)
the resale and delivery of the Securities by
the Underwriters to holders in the manner
contemplated by this Agreement;
(xiii) The Company has the power to
submit, and has taken all necessary
corporate action to submit, to the
jurisdiction of any Federal or State court
in the City of New York, and to appoint Sony
Corporation of America as the authorized
agent of the Company for the purposes and to
the extent described in Section 14 of this
Agreement and as the authorized agent of the
Company for the purposes and to the extent
described in Section 114 of the Indenture;
and neither the Company nor any of its
property in Japan, is immune from any
attachment in aid of execution of, or from
execution based upon, any judgment of any
such court; the Company has the legal
capacity to xxx and be sued in its own name
under the laws of Japan; the irrevocable
submission of the Company to the
non-exclusive jurisdiction of such court in
the City of New York and the
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waiver by the Company of any objection to
the venue of the proceeding in any such
court in the City of New York are legal,
valid and binding under the laws of Japan
and the courts of Japan will give effect to
such submission and waivers;
(xiv) Under current practice of
Japanese courts, the Underwriters would be
permitted to commence proceedings in
Japanese courts of competent jurisdiction
based on this Agreement and the holders of
the Securities (or the Trustee acting on
their behalf) would be permitted to commence
proceedings in Japanese courts of competent
jurisdiction based on the Indenture and the
Securities, and such Japanese courts would
accept jurisdiction over any such action or
proceeding and would give effect to the
choice of New York law as the governing law
of this Agreement, the Indenture and the
Securities; under present Japanese law,
Japanese courts should recognize and enforce
as a valid judgment any final and conclusive
civil judgment for monetary claims (which
for this purpose are limited to those of a
purely civil nature and do not include
monetary claims of the nature of criminal or
administrative sanction, such as treble
damages or punitive damages, even though
they take the form of civil claims) obtained
in a court of competent jurisdiction located
in the State of New York against the Company
by a holder of any Security, in his capacity
as such holder, in an action based on the
Security and instituted by a service of
process on the Company in the manner set
forth in Section 14 of this Agreement,
provided that (a) both the procedures
leading to, and the substance of, such
judgment is not repugnant to public policy
as applied in Japan, (b) a court located in
the State of New York will recognize and
treat as a valid judgement without retrial
or re-examination of the merits any final
and conclusive civil judgement for monetary
claims obtained in a Japanese court against
an issuer located in the State of New York
by a holder of a security based on such
security (such security being comparable to
the Securities), in his capacity as such
holder and instituted by service of process
(otherwise than by a public notice or a
method comparable thereto) on such issuer,
if such judgment obtained in Japan is not
repugnant to public policy as applied in the
State of New York (which for this purpose
may require an absence of a conflicting
judgment issued by a court located in the
State of New York in the subject matter) and
(c) there is no conflicting Japanese court
judgment in the subject matter. (Since such
counsel is not an expert in the laws of the
State of New York or the United States, such
counsel is unable to determine the precise
scope of and the limitation by the New York
State law and, accordingly, are unable to
express an opinion as to whether or not a
Japanese court would
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regard a judgment of a court located in the
State of New York as satisfying the
requirements mentioned above); and
(xv) Under Japanese law as in effect
on the date of such opinion, payments of
principal and interest in respect to the
Securities by the Company to non-residents
of Japan or non-Japanese corporations,
without permanent establishments in Japan
will not be subject to Japanese income or
corporation tax by way of withholding or
otherwise, and no stamp, duty or other issue
or documentary taxes are payable in Japan in
connection with the execution or delivery of
this Agreement or the Indenture. In the
event that in the future the Company may
become liable to withhold or deduct any such
taxes or duties with respect to the interest
payments on the Securities, the Company may
perform its obligations pursuant to the
terms and conditions of the Securities to
pay the holders of the Securities any
additional amounts.
In rendering such opinions, such counsel may rely (A)
as to matters involving the application of laws other than the
laws of Japan to the extent such counsel deems proper and to
the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel
reasonably acceptable to the Underwriters' counsel, familiar
with the applicable laws, including (without limitation) the
opinion of Xxxxxxxx & Xxxxxxxx referred to in subsection (h)
below; (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the
Company and certificates or other written statements of
officials of jurisdictions having custody of documents
respecting the corporate existence of the Company. The opinion
of such counsel for the Company shall state that the opinion
of any such other counsel upon which they relied is in form
satisfactory to such counsel. The opinion of such counsel
described above shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
(h) Xxxxxxxx & Xxxxxxxx, U.S. counsel to the Company,
shall have furnished to the Representatives their written
opinion (as to items (i) through (v) below) and a letter (as
to item (vi) below), dated the Closing Date, in form and
substance satisfactory to the representations to the effect
that:
(i) assuming that this Agreement has been
duly authorized, executed and delivered by the
Company under Japanese law, this Agreement has been
duly executed and delivered by the Company;
(ii) assuming that the Securities have been
duly authorized and executed by the Company, duly
authenticated by the Trustee and delivered as
contemplated
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by the Indenture and assuming, insofar as Japanese
law is concerned, that the Securities are valid and
legally binding obligations of the Company
enforceable in accordance with their terms, the
Securities constitute valid and legally binding
obligations of the Company enforceable in accordance
with their terms and entitled to the benefits
provided under the Indenture, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to
general equity principles;
(iii) assuming that the Indenture has been
duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding
obligation of the Company under Japanese law
enforceable in accordance with its terms, the
Indenture constitutes a valid and legally binding
obligation of the Company enforceable in accordance
with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; the Indenture has been duly qualified
under the Trust Indenture Act;
(iv) all regulatory consents,
authorizations, approvals and filings required to be
obtained or made by the Company under the Federal
laws of the United States or the laws of the State of
New York for the issuance of the Securities and the
sale and delivery of the Securities by the Company to
the Underwriters have been obtained or made;
(v) the Company is not an "investment
company", as such term is defined in the Investment
Company Act; and
(vi) the Registration Statement, as of its
effective date, and the Prospectus, as of its date,
appeared on their face to be appropriately responsive
in all material respects with the requirements of the
Securities Act, the Trust Indenture Act and the
applicable rules and regulations of the Commission
thereunder; nothing that came to such counsel's
attention in the course of their review has caused
such counsel to believe that the Registration
Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to
state any material fact required to be stated therein
or necessary to make the statements therein not
misleading or that the Prospectus, as of its date,
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading; and nothing that has come to
such counsel's attention in the course of the limited
procedures described in such letter has caused such
counsel to believe that the Prospectus, as of the
date and time of delivery of such letter, contained
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20
any untrue statement of a material fact or omitted to
state any material fact necessary in order to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading. Such counsel may state that they do not
assume any responsibility for the accuracy,
completeness or fairness of the statements contained
in the Registration Statement or the Prospectus,
except for those made under the sections entitled
"Description of Notes", insofar as they relate to
provisions of the Securities and the Indenture,
"Taxation -- United States Taxation", insofar as they
relate to provisions of Federal tax laws of the
United States therein described, and "Underwriting",
insofar as they relate to the provisions of this
Agreement. Such counsel may also state that they do
not express any opinion or belief as to financial
statements and schedules or other financial data
contained or incorporated by reference in the
Registration Statement and the Prospectus or as to
the statement of the eligibility and qualification of
the Trustee under the Indenture.
In rendering such opinions, such counsel may rely (A)
as to matters involving the application of laws other than the
Federal laws of the United States and the laws of the State of
New York, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable
to the Underwriters' counsel, familiar with the applicable
laws, including (without limitation) the opinion of Tsunematsu
Yanase & Sekine referred to in subsection (g) above; and (B)
as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company
and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company. With
respect to the matters to be covered in subparagraph (vi)
above counsel may state their opinion and belief is based upon
their participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement
thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof
(including the documents incorporated by reference therein)
but is without independent check or verification except as
specified. The opinion of such counsel described above shall
be rendered to the Underwriters at the request of the Company
and shall so state therein.
(i) on the date hereof and also on the Closing Date,
Price Waterhouse shall have furnished to the Representatives
letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to the Representatives,
containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained or incorporated by reference in the
Registration Statement and the Prospectus;
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21
(j) the Representatives shall have received on and as
of the Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx,
counsel to the Underwriters, with respect to the validity of
the Indenture and the Securities, the Registration Statement,
the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall
have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(k) the Securities to be delivered on the Closing
Date shall have been approved for listing on the Exchange,
subject to official notice of issuance; and
(l) on or prior to the Closing Date the Company shall
have furnished to the Representatives such further
certificates and documents as the Representatives may
reasonably request.
7. The Company undertakes with the Underwriters that it will
bear and pay any stamp or other duties or taxes (or, in respect of any
duty or tax for which the Underwriters are initially liable, will
promptly reimburse the same to the Underwriters) on or in connection
with the issue, distribution and delivery of the Securities and the
execution, delivery and performance of this Agreement and any value
added tax payable in connection with the commissions and other amounts
payable or allowable by the Company and otherwise in connection with
the transactions envisaged by this Agreement.
8. The Company agrees to indemnify and hold harmless each
Underwriter, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities and each person, if
any, who controls any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses reasonably
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein; provided that
the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter or affiliate thereof
(or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or
liabilities purchased Securities if such untrue statement or omission
or alleged untrue statement or omission made in such preliminary
prospectus is
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eliminated or remedied in the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto)
and, if required by law, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior
to the written confirmation of the sale of such Securities to such
person.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person who controls the
Company within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to information relating to such Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for
use in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Securities and such control persons of Underwriters shall be
designated in writing by X.X. Xxxxxx Securities Inc. and any such separate firm
for the Company, its directors, its officers who sign the Registration Statement
and such control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person
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from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 8 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Securities. The relative fault of the Company on the one
hand and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately
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preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amount of Securities set forth opposite their names
in Schedule I hereto, and not joint.
The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law of in equity.
The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
9. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Representatives, by notice
given to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Trade, the Tokyo Stock Exchange or the Exchange;
(ii) trading of any securities of or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York, England or Japan shall
have been declared by either Federal or New York State, English or Japanese
authorities, respectively, or (iv) there shall have occurred any change in the
U.S. or international financial markets, any outbreak or escalation of
hostilities, any change in political or economic conditions or currency exchange
rates or exchange controls or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
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10. This Agreement shall become effective upon the later of
(x) execution and delivery hereof by the parties hereto and (y) if applicable,
release of notification of the effectiveness of any post-effective amendment by
the Commission.
If on the Closing Date any one or more of the Underwriters
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 10 by an amount in excess of one-tenth of such
principal amount of Securities without the written consent of such Underwriter.
If on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Securities which it or they have agreed to purchase hereunder on such
date, and the aggregate principal amount of Securities with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date, and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
11. If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
12. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, each affiliate of any Underwriter which assists
such Underwriter in the distribution
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of the Securities, any controlling persons referred to herein and their
respective directors, officers, successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
13. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000 (telefax:______); Attention: Syndicate Department. Notices to
the Company shall be given to it at Sony Corporation, 7-35, Kitashinagawa
6-chome, Xxxxxxxxx-xx, Xxxxx, 000-0000, Xxxxx (telefax: 00-0-0000-0000);
Attention: Capital Market Department, Finance Division.
14. Each of the parties hereto irrevocably agrees that any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any Federal or State court
located in the Borough of Manhattan, The City of New York (each a "New York
Court"), and irrevocably waives, to the fullest extent it may effectively do so,
any objection which it may now or thereafter have to the laying of venue of any
such proceeding brought in any such court and irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process with respect
to itself or its property, the Company hereby waives such immunity in respect of
its obligations under this Agreement. The Company acknowledges that, to the
extent permitted under applicable laws, a final judgment in any such suit,
action or proceeding brought in such a court may be conclusive and binding on
the Company and an action may be brought in any court in a jurisdiction to which
the Company is subject to a suit in order to enforce such judgement. The Company
has irrevocably appointed, Sony Corporation of America, 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, its authorized agent (the "Authorized
Agent") upon whom process may be served in any such action arising out of or
based upon this Agreement or the transactions contemplated hereby which may be
instituted in any New York Court by any Underwriter or by any person who
controls such Underwriter. The Company represents and warrants that the
Authorized Agent has agreed to act as said agent for service of process, and the
Company agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment in
full force and effect as aforesaid. Service of process upon the Authorized Agent
and written notice of such service to the Company shall be deemed, in every
respect, effective service of process upon the
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Company.
15. If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Representatives could purchase
United States dollars with such other currency in New York City on the Business
Day preceding that on which final judgment is given. The obligation of the
Company in respect of any sum due from it to any Underwriter shall,
notwithstanding any judgment in currency other than United States dollars, not
be discharged until the first Business Day, following receipt by such
Underwriter of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) such Underwriter may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States dollars so purchased are less than the sum originally due to
such Underwriter hereunder, the Company agrees, as a separate obligation and
notwithstanding any judgment, to indemnify such Underwriter against such loss.
16. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS
OF LAWS PROVISIONS THEREOF.
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If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
SONY CORPORATION
By:_______________________
Title:
Accepted: _________ __, 1998
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
X.X. Xxxxxx Securities Inc.
Acting severally on behalf
of themselves and the
several Underwriters listed
in Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
By:___________________________
Title:
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SCHEDULE I
Underwriters Principal Amount
of Securities
Xxxxxxx, Sachs & Co. .................................... $
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated....
X.X. Xxxxxx Securities Inc. .............................
Total ............. $ 1,500,000,000
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