Exhibit 1.1
UBS AG
$4,529,508,000
DEBT SECURITIES AND WARRANTS
FORM OF DISTRIBUTION AGREEMENT
__, 200-
UBS Warburg LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
UBS PaineWebber Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
UBS AG, a corporation organized under the laws of Switzerland (the
"Company"), proposes to issue and sell from time to time certain debt securities
(the "Debt Securities") and warrants (the "Warrants") (collectively, the
"Securities") in an amount having an aggregate initial offering price of up to
$4,529,508,000 and agrees with each of you (individually, an "Agent" and,
collectively, the "Agents") as set forth in this Agreement. Each of the terms
"the Agents", "such Agent", "any Agent", "an Agent", "each Agent", "the
Purchasing Agent" and "the Selling Agent", when used in this Agreement or in any
Terms Agreement (as defined below) or in the Annexes hereto, shall mean [UBS
Warburg LLC] and [UBS PaineWebber Inc.], except at any time when more Agents are
acting as such hereunder, as contemplated in Section 10 hereof.
The Company acknowledges and agrees that UBS Warburg LLC and UBS
PaineWebber Inc. may use the Prospectus (as defined below) in connection with
offers and sales of the Securities as contemplated in the Prospectus under the
caption "Plan of Distribution -- Market-Making Resales by Affiliates"
("Secondary Market Transactions"). The Company further acknowledges and agrees
that each of UBS Warburg LLC and UBS PaineWebber Inc. is under no obligation to
effect any Secondary Market Transactions and, if it does so, it may discontinue
effecting such transactions at any time without providing any notice to the
Company. The term "Agent", whenever used in this Agreement, shall include each
of UBS Warburg LLC and UBS PaineWebber Inc., whether acting in its capacity as
an Agent or acting in connection with a Secondary Market Transaction, except as
may be specifically provided otherwise herein.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase
Securities from the Company pursuant to Section 2(a) hereof and (ii) agrees
that, except as otherwise contemplated herein, whenever it determines to sell
Securities directly to any Agent as principal, it will enter into a separate
agreement (each a "Terms Agreement"), substantially in the form of Annex I
hereto or in such other form as may be agreed by the parties to that particular
agreement, relating to such sale in accordance with Section 2(b) hereof. This
Distribution Agreement shall not be construed to create either an obligation on
the part of the Company to sell any Securities or an obligation of any of the
Agents to purchase Securities as principal.
The Debt Securities will be issued under an indenture, dated as of
November 21, 2000 (as it may be amended from time to time, the "Indenture"),
between the Company and U.S. Bank Trust, National Association, as trustee
(including any successor trustee thereunder, the "Trustee"). The Warrants will
be issued under one or more separate warrant agreements (each a "Warrant
Agreement") between the Company and one or more separate institutions, as
warrant agent, each identified in such Warrant Agreement (each a "Warrant
Agent"). The Securities shall have the maturity ranges, interest rates, if any,
redemption provisions and other terms set forth in the Prospectus referred to
below as it may be amended or supplemented from time to time. The Debt
Securities and the Warrants will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture
and the Warrant Agreements, respectively.
1. The Company represents and warrants to, and agrees with, each Agent
that:
(a) A registration statement on Form F-3 (the "Registration
Statement") (such Registration Statement constitutes pre-effective amendment No.
2 to registration statement No. 333-64844 and post-effective amendment No. 4 (as
amended) to registration statement No. 333-46930) in respect of the Securities
has been filed with the Securities and Exchange Commission (the "Commission");
such registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to such Agent, excluding
exhibits to such registration statement, have been declared effective by the
Commission in such form; no other document with respect to such registration
statement has been filed with the Commission (other than the prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), each in the form delivered to
the Agents); no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission; any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act, is hereinafter called
a "Preliminary Prospectus"; the various parts of such registration statement,
including all exhibits thereto but excluding Form T-1 and, if applicable,
including the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act, in accordance with Section
4(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the
registration statement, each as amended at the time such part of the
registration statement became effective, is hereinafter collectively called the
"Registration Statement"; the prospectus (including, if applicable, any
prospectus supplement) relating to the Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, is hereinafter called the "Prospectus"; any
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supplement to the Prospectus that sets forth only the terms of a particular
issue of the Securities and is filed in accordance with Section 4(a) hereof is
hereinafter called a "Pricing Supplement"; and any reference herein to the
Prospectus as amended or supplemented shall be deemed to refer to and include
the Prospectus as amended and supplemented (including by the applicable Pricing
Supplement) in relation to Securities to be sold pursuant to this Agreement, in
the form filed or transmitted for filing with the Commission pursuant to Rule
424(b) under the Act and in accordance with Section 4(a) hereof);
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an Agent
expressly for use therein;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act, and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by any Agent expressly for
use in the Prospectus as amended or supplemented to relate to a particular
issuance of Securities;
(d) The financial statements of the Company and its consolidated
subsidiaries included in the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries on a consolidated basis, as of the
dates indicated, and the results of their operations for the periods specified
in accordance with International Accounting Standards;
(e) The unaudited pro forma financial statements of the Company
included in or incorporated by reference into the Registration Statement comply
as to form with in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder, and
the pro forma adjustments have been properly applied to the historical amounts
in the compilation of the statements;
(f) Subsequent to the respective dates as of which information is
given in the Prospectus, there has been no material adverse change in the
condition, financial or otherwise, or in the business affairs of the Company and
its consolidated subsidiaries, taken as a whole,
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whether or not arising in the ordinary course of business, except as set forth
or contemplated in the Prospectus;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(h) The Company has been duly organized and is validly existing
under the laws of Switzerland, with full power and authority to engage in its
business in Switzerland. The Company is licensed, registered or qualified to
conduct the business in which it is engaged in each jurisdiction where the
conduct of its business or the location of its properties requires such
licenses, registration or qualification, except for such jurisdictions where the
failure to so qualify will not have a material adverse effect on the financial
condition of the Company and its consolidated subsidiaries, taken as a whole;
(i) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company under the laws of the State of New
York and Switzerland, entitled to the benefits provided by, in the case of Debt
Securities, the Indenture, and in the case of Warrants, the Warrant Agreement,
which are filed as exhibits to the Registration Statement; the Indenture and
each Warrant Agreement each has been duly authorized, executed and delivered by
the Company and the Indenture has been duly qualified under the Trust Indenture
Act and the Indenture and each Warrant Agreement each constitutes a valid and
legally binding instrument, enforceable in accordance with its terms under the
laws of the State of New York and Switzerland, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Indenture and each Warrant Agreement each conforms and the Securities of any
particular issuance of Securities will conform to the descriptions thereof
contained in the Prospectus as amended or supplemented to relate to such
issuance of Securities;
(j) The Company is not in violation of its Articles of Association
or Organization Regulations or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which it is a party or by which it or its properties may be bound where the
effect of such violation or default would be to materially impair the Company's
ability to perform its obligations hereunder or under the Securities. This
Agreement and any Terms Agreement has been duly authorized, executed and
delivered by the Company and the performance of this Agreement, any Terms
Agreement, the Indenture and each Warrant Agreement by the Company of its
obligations hereunder and thereunder have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company is a party or by which it may be bound or to which any of the
property or assets of the Company is subject, nor will such
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action result in any violation of the provisions of the Articles of Association
or Organization Regulations of the Company or any law, administrative regulation
or administrative or court order or decree applicable to the Company; and no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the solicitation
of offers to purchase Securities, the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement, any Terms Agreement, the Indenture or any Warrant Agreement, except
such as have been, or will have been prior to the Commencement Date (as defined
in Section 3 hereof), obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the Company and
with purchases of Securities by such Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(k) The statements set forth in the Prospectus under the captions
"Description of Debt Securities We May Offer" and "Description of Warrants We
May Offer", insofar as they purport to constitute a summary of the terms of the
Securities, and under the captions "U.S. Tax Considerations" and "Plan of
Distribution", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and fair;
(l) There are no legal or governmental actions, suits or proceedings
before or by any court or governmental agency or body, domestic or foreign, now
pending or, to the best knowledge of the Company, threatened against or
affecting the Company or of which any property of the Company is subject, other
than as set forth in the Prospectus and other than legal or governmental
actions, suits or proceedings which in each case and in the aggregate are not
expected to have a material adverse effect on the financial condition of the
Company and its consolidated subsidiaries taken as a whole or the ability of the
Company to perform its obligations under this Agreement, the Securities or the
Indenture;
(m) The Company is not and, after giving effect to each offering and
sale of the Securities, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(n) Ernst & Young Ltd., who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(o) Under the laws of Switzerland, the obligations of the Company
under the Securities will rank pari passu under all other unsecured indebtedness
of the Company for money borrowed that is not contractually subordinated to the
payment of such obligations including unsecured deposit obligations, except for
obligations entitled to statutory priority in the event of liquidation upon
insolvency; and
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(p) Under the laws of the Switzerland, the Company, being a
corporation which is subject to civil and commercial law, has no right of
immunity, on the grounds of sovereignty or otherwise.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each of the
Agents hereby severally and not jointly agrees, as agent of the Company, to use
its reasonable efforts to solicit and receive offers to purchase the Securities
from the Company upon the terms and conditions set forth in the Prospectus as
amended or supplemented from time to time. So long as this Agreement shall
remain in effect with respect to any Agent, the Company shall not, without the
consent of such Agent, solicit or accept offers to purchase, or sell, any
Securities except (i) pursuant to this Agreement or any Terms Agreement, (ii)
pursuant to a private placement not constituting a public offering under the Act
and in accordance with Section 4(2) or Regulation D under the Act, (iii)
pursuant to an offering of securities exempt from registration under Section
3(a)(2) under the Act, (iv) pursuant to an offering outside the United States
that is not subject to the registration requirements of the Act or (v) in
connection with a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of debt securities
(other than in Secondary Market Transactions). However, the Company reserves the
right to sell, and may solicit and accept offers to purchase, Securities
directly on its own behalf in transactions with persons other than
broker-dealers, and, in the case of any such sale not resulting from a
solicitation made by any Agent, no commission will be payable with respect to
such sale. These provisions shall not limit Section 4(f) hereof or any similar
provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase Securities from the Company commencing at any
time for any period of time or permanently. The Company shall be entitled to
suspend such solicitation as to any Agent or all of the Agents, as determined by
the Company. Upon receipt of instructions from the Company, the relevant Agent
or Agents shall suspend solicitation of offers to purchase from the Company
until such time as the Company has advised such Agent or Agents that such
solicitation may be resumed. During such period, the Company shall not be
required to comply with the provisions of Sections 4(h), 4(i), 4(j), 4(k) and
4(l). Upon advising the Agents that such solicitation may be resumed, however,
the Company shall simultaneously provide the documents required to be delivered
by Sections 4(h), 4(i), 4(j), 4(k) and 4(l), and the Agents shall have no
obligation to solicit offers to purchase the Securities until such documents
have been received by the Agents.
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In addition, any failure by the Company to comply with its obligations
hereunder, including its obligations to deliver the documents required by
Sections 4(h), 4(i), 4(j), 4(k) and 4(l), shall automatically terminate the
Agents' obligations hereunder, including its obligations to solicit offers to
purchase the Securities hereunder as agent or to purchase Securities hereunder
as principal.
[The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following applicable
percentage of the principal amount of such Security sold:
Commission
Maturities (percentage of principal amount)
---------- --------------------------------
Less than 9 months 0.100%
From 9 months to less than 1 year 0.125%
From 1 year to less than 18 months 0.150%
From 18 months to less than 2 years 0.200%
From 2 years to less than 3 years 0.250%
From 3 years to less than 4 years 0.350%
From 4 years to less than 5 years 0.450%
From 5 years to less than 6 years 0.500%
From 6 years to less than 7 years 0.550%
From 7 years to less than 10 years 0.600%
From 10 years to less than 15 years 0.625%
From 15 years to less than 20 years 0.700%
From 20 years to less than 30 years 0.750%
30 years or more (To be negotiated)]
(b) Each sale of Securities by the Company to any Agent as principal
shall be made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall otherwise agree) a Terms Agreement which will
provide for the sale of such Securities by the Company to, and the purchase
thereof by, such Agent; a Terms Agreement may also specify certain provisions
relating to the reoffering of such Securities by such Agent; the commitment of
any Agent to purchase Securities as principal, whether pursuant to any Terms
Agreement or otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth; each Terms Agreement shall
specify the principal amount of Securities to be purchased by any Agent pursuant
thereto, the price to be paid to the Company for such Securities, any provisions
relating to rights of, and default by, underwriters acting together with such
Agent in the reoffering of the Securities and the time and date and place of
delivery of and payment for such Securities; such Terms Agreement shall also
specify any requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof and such Terms Agreement may
also include such other provisions (including provisions that modify this
Agreement insofar as it sets forth the agreement between the Company and such
Agent) as the Company and such Agent may agree upon. Each Agent proposes to
offer Securities purchased
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by it as principal from the Company for sale at prevailing market prices or
prices related thereto at the time of sale, which may be equal to, greater than
or less than the price at which such Securities are purchased by such Agent from
the Company. Unless otherwise agreed between the Company and the relevant
Agents, where more than one Agent has agreed with the Company to purchase a
particular issue of Securities pursuant to this subsection, the obligations of
such Agents so to purchase such Securities shall be several and not joint.
For each sale of Securities by the Company to an Agent as principal
that is not made pursuant to a Terms Agreement, the procedural details relating
to the issue and delivery of such Securities and payment therefor shall be as
set forth in the Administrative Procedure.
For each such sale of Securities by the Company to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth therein. Each
time and date of delivery of and payment for Securities to be purchased from the
Company by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein as a "Time
of Delivery".
(b) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, and whether acting as agent, as principal
under any Terms Agreement or otherwise (including in any Secondary Market
Transaction), not to solicit offers to purchase or otherwise offer, sell or
deliver such Security, directly or indirectly, in, or to residents of, the
country issuing such currency, except as permitted by applicable law.
(c) Nothing in this Agreement shall be read or deemed to preclude
the Company and one or more of the Agents from modifying or supplementing this
Agreement (including the Administrative Procedure) insofar as it applies to
transactions between them without such modifications or supplemental provisions
being made of general applicability to transactions between the Company and all
of the Agents.
3. The documents required to be delivered pursuant to Section 6 hereof
on the Commencement Date (as defined below) shall be delivered to the Agents at
the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
at 11:00 a.m., New York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement between the Agents and the
Company but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any Terms
Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall be
disapproved by any Agent promptly after reasonable notice thereof, (B) after the
date of any Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery which shall be
disapproved by any Agent party to such Terms Agreement or so
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purchasing as principal promptly after reasonable notice thereof or (C) during
the period beginning on the Commencement Date and continuing for as long as may
be required under applicable law, in the reasonable judgment of such Agent after
consultation with the Company, in order to offer and sell any Securities in
Secondary Market Transactions as contemplated by the Prospectus (the "Secondary
Transactions Period") which shall be disapproved by such Agent promptly after
reasonable notice thereof;
(ii) to prepare, with respect to any Securities to be sold by
the Company through or to such Agent pursuant to this Agreement, a
Pricing Supplement with respect to such Securities in a form previously
approved by such Agent and to file such Pricing Supplement pursuant to
Rule 424(b) under the Act not later than the close of business of the
Commission on the fifth business day after the date on which such
Pricing Supplement is first used or, if required under Rule 424(b)
under the Act, no later than the close of business of the Commission on
the second business day after the date on which such Pricing Supplement
is first used;
(iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than any Pricing Supplement, at any time
prior to having afforded each Agent a reasonable opportunity to review
and comment thereon (other than documents filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Registration Statement or Prospectus, as the case
may be, which documents the Company shall provide to such Agent
promptly after being transmitted for filing with the Commission);
(iv) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities (including in
any Secondary Market Transactions during the Secondary Transactions
Period), and during such same period to advise such Agent, promptly
after the Company receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or has become
effective or any supplement to the Prospectus or any amended Prospectus
(other than any Pricing Supplement that relates to Securities not
purchased through or by such Agent) has been filed with the Commission,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amendment or supplement of the Registration
Statement or Prospectus or for additional information; and
(v) in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any such prospectus
or suspending any such qualification, to use promptly its best efforts
to obtain its withdrawal; It is understood and agreed that, if Form F-2
or F-3 under the Act is available to the Company, the Company may amend
the Registration Statement so as to be on such form or may file a new
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registration statement on such form and have it declared effective by
the Commission, and thereafter any information required to be included
in the Registration Statement or the Prospectus may be incorporated
therein by reference as permitted by such form, provided that:
(X) if a new registration statement is filed, the
Company shall be deemed to have made the representations and
warranties in Sections 1(a), 1(b) and 1(c) hereof with respect
to such new registration statement as of its effective date,
any preliminary prospectus included therein, as of its date,
and the prospectus included therein in the form in which it is
first filed pursuant to Rule 424(b) under the Act, as of its
date, and to have made the agreements in Section 4(a)(i)
hereof with respect to the initial filing of such new
registration statement, each filing of a pre-effective
amendment thereto and each filing of a related prospectus
pursuant to Rule 424(a) or (b) under the Act;
(Y) if a new registration statement is filed and
becomes effective, any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall
thereafter include, respectively, such new registration
statement, any preliminary prospectus included therein and the
prospectus included therein in the form first filed pursuant
to Rule 424(b) under the Act; and
(Z) if a new registration statement is filed and
becomes effective, any reference in this Agreement to any
Preliminary Prospectus or the Prospectus shall thereafter be
deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be.
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution or sale of the
Securities (including in any Secondary Market Transactions during the Secondary
Transactions Period); provided, however, that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such jurisdiction;
(c) (i) To furnish such Agent with copies of the Registration
Statement and each amendment thereto and with copies of the Prospectus as each
time amended or supplemented, other than any Pricing Supplement (except as
provided in the Administrative Procedure), in the form in which it is filed with
the Commission pursuant to Rule 424 under the Act, all in such quantities as
such Agent may reasonably request from time to time;
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(ii) if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities (including
Securities purchased from the Company by such Agent as principal and
including in any Secondary Market Transactions during the Secondary
Transactions Period) and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus in order to comply with the Act or the Trust Indenture Act,
to notify such Agent and request such Agent, in its capacity as agent
of the Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such Agent shall
cease such solicitations as soon as practicable, but in any event not
later than one business day later); and if the Company shall decide to
amend or supplement the Registration Statement or the Prospectus as
then amended or supplemented, to so advise such Agent promptly by
telephone (with confirmation in writing) and to prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect
such compliance;
(iii) notwithstanding paragraph (ii) above, if during the period
specified in such paragraph such Agent continues to own Securities
purchased from the Company by such Agent as principal or such Agent is
otherwise required to deliver a prospectus in respect of transactions
in the Securities (including in any Secondary Market Transactions
during the Secondary Transactions Period), the Company shall promptly
prepare and file with the Commission such an amendment or supplement
and furnish without charge to such Agent as many copies as it may from
time to time during such period reasonably request of such amendment or
supplement; provided, however, that the Company may elect, upon notice
to such Agent not to comply with this paragraph (iii) with respect to
any Secondary Market Transaction, but only for a period or periods that
the Company reasonably determines are necessary in order to avoid
premature disclosure of material, non-public information, unless,
notwithstanding such election, such disclosure would otherwise be
required under this Agreement; and provided, further, that no such
period or periods described in the preceding proviso shall exceed 90
days in the aggregate during any period of 12 consecutive calendar
months. Upon receipt of any such notice, each Agent shall cease using
the Prospectus or any amendment or supplement thereto in connection
with Secondary Market Transactions until it receives notice from the
Company that it may resume using such document (or such document as it
may be amended or supplemented);
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules
11
and regulations of the Commission thereunder (including, at the option of the
Company, Rule 158 under the Act);
(e) So long as such Agent is continuing to solicit and receive offers
to purchase Securities in accordance with the terms and conditions of this
Agreement, to furnish to such Agent copies of all reports or other
communications (financial or other) furnished to stockholders generally, and to
deliver to such Agent (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as such Agent may from time to time
reasonably request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or other
agreement by such Agent to purchase Securities as principal and continuing to
and including the later of (i) the termination of the "restricted period", as
such term is defined under Regulation M, relating to the Securities purchased
thereunder, as notified to the Company by such Agent, and (ii) the related Time
of Delivery, the Company will not, without the prior written consent of such
Agent, offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which are substantially similar to such Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase from the Company by such Agent as
principal not pursuant to a Terms Agreement), and each execution and delivery by
the Company of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the Company
contained in or made pursuant to this Agreement are true and correct as of the
date of such acceptance or of such Terms Agreement, as the case may be, as
though made at and as of such date, and an undertaking that such representations
and warranties will be true and correct as of the settlement date for the
Securities relating to such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as of such date (except
that such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented relating
to such Securities);
(h) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), and each time
the Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section 4(h) as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be furnished forthwith to
such Agent a written opinion of the Company's Swiss counsel, or other counsel
for the Company satisfactory to such Agent, dated the date of such amendment or
supplement or the Time of Delivery relating to such sale, as the case may be, in
form satisfactory to such Agent, to the effect that such Agent may rely on the
opinion of such counsel referred to in Section 6(b) hereof which was last
furnished to such Agent to the same extent as though it were dated the date of
such letter authorizing reliance (except that the statements in such last
12
opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu of such
opinion, an opinion of the same tenor as the opinion of such counsel referred to
in Section 6(b) hereof but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), and each time
the Company sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion under
this Section 4(i) as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be furnished forthwith to
such Agent a written opinion of Xxxxxxxx & Xxxxxxxx, the Company's United States
counsel, dated the date of such amendment or supplement or the Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such Agent,
to the effect that such Agent may rely on the opinion of such counsel referred
to in Section 6(c) hereof which was last furnished to such Agent to the same
extent as though it were dated the date of such letter authorizing reliance
(except that the statements in such last opinion shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such opinion, an opinion of the same tenor as the
opinion of such counsel referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented to set forth financial information included in or
derived from the Company's consolidated financial statements or accounting
records, and each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the delivery of
a letter under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause the independent
certified public accountants who have certified the financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such Agent a letter, dated the date
of such amendment or supplement or the Time of Delivery relating to such sale,
as the case may be, in form satisfactory to such Agent, of the same tenor as the
letter referred to in Section 6(d) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or supplemented to the date
of such letter, with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting records
of the Company, to the extent such financial statements and other information
are available as of a date not more than five business days prior to the date of
such letter; provided, however, that, with respect to any financial information
or other matter, such letter may reconfirm as true and correct at such date as
though made at and as of such date, rather than repeat, statements with respect
to such financial information or other matter made in the letter referred to in
Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), and each time
the Company sells Securities to such Agent as principal and the applicable Terms
Agreement specifies the delivery of a certificate under this Section 4(k) as a
condition to the purchase of Securities pursuant to
13
such Terms Agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a certificate, dated the date of such supplement or
amendment or the Time of Delivery relating to such sale, as the case may be, in
such form and executed by such officers of the Company as shall be satisfactory
to such Agent, to the effect that the statements contained in the certificates
referred to in Section 6(i) hereof which was last furnished to such Agent are
true and correct at such date as though made at and as of such date (except that
such statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date), or, in lieu of such
certificate, certificates of the same tenor as the certificates referred to in
said Section 6(i) but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date;
(l) To offer to any person who has agreed to purchase Securities from
the Company as the result of an offer to purchase solicited by such Agent the
right to refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedure, any condition
set forth in Section 6(a), 6(e), 6(f), 6(g) or 6(h) hereof shall not have been
satisfied (it being understood that the judgment of such person with respect to
the impracticability or inadvisability of such purchase of Securities shall be
substituted, for purposes of this Section 4(l), for the respective judgments of
an Agent with respect to certain matters referred to in such Sections 6(e) and
6(g), and that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Sections 6(e) and 6(g) on behalf of
any such person); and
(m) In the event that the Company and one or more Agents agree to list
Securities on a stock exchange, the Company shall cause an initial application
to be made on such stock exchange. In connection with any series of Securities
that is intended to be listed, the Company shall use its reasonable best efforts
to obtain the listing as promptly as practicable and to furnish or cause to be
furnished any and all documents, instruments, information and undertakings that
may be necessary or advisable in order to obtain and maintain the listing. The
Company shall comply with any undertaking given to it from time to time by the
relevant stock exchange in connection with any Securities listed on such stock
exchange and shall furnish or cause to be furnished to the relevant stock
exchange all such information as the relevant stock exchange may require in
connection with the listing of any Securities on such stock exchange; and if any
Securities cease to be listed on the relevant stock exchange, the Company shall
endeavor promptly to list such Securities on such securities exchange as may be
agreed between the Company and the relevant Agent.
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus, any Prospectus
Supplements and any Pricing Supplements and all other amendments and supplements
thereto and the mailing and delivering of copies thereof to such Agent; (ii) the
cost of printing, producing or reproducing this Agreement, any Terms Agreement,
any Indenture, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale
14
and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 4(b) hereof, including the fees and disbursements in
connection with such qualification and in connection with any Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to, and the fees and
disbursements in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities (other than, in the case of UBS Warburg LLC, in any Secondary Market
Transactions); (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and any transfer or paying
agent of the Company and the fees and disbursements of counsel for any Trustee
or such agent in connection with any Indenture and the Securities; (viii) any
advertising expenses connected with the solicitation of offers to purchase and
the sale of Securities so long as such advertising expenses have been approved
by the Company; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in Sections 7 and 8 hereof,
each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities from the
Company and the obligation of any Agent to purchase Securities from the Company
as principal, pursuant to any Terms Agreement or otherwise, shall in each case
be subject, in such Agent's discretion, to the condition that all
representations and warranties and other statements of the Company herein (and,
in the case of an obligation of an Agent under a Terms Agreement, in or
incorporated by reference in such Terms Agreement) are true and correct at and
as of the Commencement Date and any applicable date referred to in Section 4(k)
hereof that is prior to such Solicitation Time or Time of Delivery, as the case
may be, and at and as of such Solicitation Time or Time of Delivery, as the case
may be; the condition that prior to such Solicitation Time or Time of Delivery,
as the case may be, the Company shall have performed all of its obligations
hereunder theretofore to be performed; and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4(a)
hereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and (iii) all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of such Agent;
(b) Bar & Xxxxxx, Swiss counsel for the Company, or other counsel for
the Company satisfactory to such Agent, shall have furnished to such Agent such
counsel's written
15
opinions, dated the Commencement Date and each applicable date referred to in
4(h) hereof that is on or prior to such Solicitation Time or Time of Delivery,
as the case may be, in form and substance satisfactory to such Agent, to the
effect that:
(i) The Company has been duly organized and is validly
existing under the laws of Switzerland, with full power and authority
to own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus as amended or supplemented, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property of the Company
or any of its subsidiaries is subject, that is reasonably likely,
individually or in the aggregate, to have a material adverse effect on
the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
and to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(iv) This Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
(v) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms
insofar as the laws of Switzerland are concerned, 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;
(vi) Each Warrant Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its
terms insofar as the laws of Switzerland are concerned, 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;
(vii) The Securities have been duly authorized and, when the
terms of a particular Security and of its issuance and sale have been
duly authorized and established by all necessary corporate action in
conformity with the Indenture, and such Security has been duly
prepared, executed, authenticated and issued in accordance with the
Indenture and delivered against payment in accordance with this
Agreement, such Security will constitute a valid and legally binding
obligation of the Company enforceable in
16
accordance with its terms insofar as the laws of Switzerland are
concerned, 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;
(viii) The issue and sale of the Securities by the Company,
the compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any applicable Terms
Agreement and the consummation by the Company of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to
which the Company is then a party or by which the Company is then bound
or to which any of the property or assets of the Company is then
subject, nor will such action result in any violation of the provisions
of the Articles of Association of the Company as then in effect or any
statute, or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties, in each case as then in effect (it
being understood that, in the case of any opinion to be delivered at a
Time of Delivery, the term "Securities" as used in this paragraph (vii)
shall mean the Securities to be delivered at such time);
(ix) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of
Switzerland is required for the issue and sale of the Securities in
accordance with this Agreement or the consummation by the Company of
the other transactions contemplated by this Agreement, any applicable
Terms Agreement, the Securities or the Indenture, except such consents,
approvals, authorizations, registrations or qualifications that have
been obtained or made (it being understood that, in the case of any
opinion to be delivered at a Time of Delivery, the term "Securities" as
used in this paragraph (viii) shall mean the Securities to be delivered
at such time);
(x) All acts, matters and things required by the applicable
laws of Switzerland to be performed, fulfilled or done before the issue
of the Securities to render the obligations undertaken by the Company
pursuant to the Securities, the Indenture, this Agreement and any
applicable Terms Agreement valid and binding insofar as the laws of
Switzerland are concerned have been performed, fulfilled and done in
due and strict compliance with all such laws;
(xi) Under the circumstances of the offer and sale of the
Securities in the manner contemplated by this Agreement, any applicable
Terms Agreement and the Indenture, no ad valorem stamp duties or
similar taxes are payable in Switzerland on the Securities, this
Agreement, any applicable Terms Agreement or the Indenture or in
connection with the observance of the obligations under them and no
taxes, levies, imposts or charges are required by the laws of
Switzerland to be deducted or withheld
17
from any payment by the Company under this Agreement, any applicable
Terms Agreement, the Indenture or the Securities;
(xii) A judgment in respect of this Agreement, any Terms
Agreement, the Indenture or the Securities enforceable against the
Company in New York will give rise to a cause of action in a court in
Switzerland which action will enable the person in whose favor the
foreign judgment has been rendered to obtain a corresponding judgment
in such court in Switzerland without re-examination or relitigation of
any matter adjudicated in the foreign judgment, except to the extent
that such judgment is against public policy in Switzerland (and such
counsel is not aware of any such policy which would prevent recognition
of such a judgment);
(xiii) The Agents will be entitled to have access as plaintiff
to appropriate courts within Switzerland for the enforcement of rights
against the Company under, and to the extent provided in, this
Agreement and any applicable Terms Agreement and such courts would give
effect to the choice of New York law as the proper law of this
Agreement and any applicable Terms Agreement;
(xiv) There are no applicable laws of Switzerland that would
limit the ability of the Company to submit to the non-exclusive
jurisdiction of any federal or state court sitting in New York City or
to waive any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding brought in such a court or
any claim in such a court has been brought in an inconvenient forum and
the submission by the Company under this Agreement, any applicable
Terms Agreement, the Indenture or the Securities to the jurisdiction of
such courts is valid and binding on the Company;
(xv) This Agreement, any applicable Terms Agreement, the
Indenture and the Securities may be enforced against the Company in the
courts of Switzerland without any express submission to any such
jurisdiction, and, if action were taken in respect of any of this
Agreement, any applicable Terms Agreement, the Indenture or the
Securities before such courts, such courts would recognize and give
effect to the provisions therein whereby they are to be governed by and
construed in accordance with New York law (except as otherwise stated
therein);
(xvi) The Company is not immune from suit in any relevant
court of Switzerland;
(xvii) A judgment in a foreign currency would, for the purpose
of enforcement, be converted to Swiss francs on the basis of the rate
of exchange prevailing on the date of judgment;
(xviii) It is not necessary under the laws of Switzerland in
order to enable any person to enforce its rights under this Agreement,
any applicable Terms Agreement, the Indenture or the Securities that
such person be licensed, qualified, resident or otherwise qualified to
carry on business in Switzerland;
18
(xix) No exchange control authorization or other
authorization, approval, consent or license of any governmental
authority or agency of Switzerland is required for the payment by the
Company of any amounts in currencies other than Swiss francs pursuant
to the terms of the Securities; and
(xx) The statements which appear in the Prospectus on page __
in connection with the enforceability in Switzerland of civil
liabilities predicated upon the Federal securities laws of the United
States, pages ____ of the Prospectus dealing with the possible effect
on the Holders of Securities of Switzerland taxation and other fiscal
legislation, and Item 8 of the Registration Statement dealing with the
indemnification of directors and officers of the Company are accurately
presented.
In rendering each such opinion, such counsel may rely on information obtained
from public officials, officers of the Company and other sources believed by
such counsel to be responsible, and may, without limiting any other assumption
or qualification which may be contained in their opinion, assume that the
Indenture, this Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the parties thereto (other than the
Company), that the Securities conform to the specimens thereof examined by them,
and that the signatures on all documents examined by them are genuine,
assumptions which such counsel have not independently verified;
(c) Xxxxxxxx & Xxxxxxxx, United States counsel for the Company, shall
have furnished to such Agent such opinion or opinions, dated the Commencement
Date and each applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in form
and substance reasonably satisfactory to you, to the effect that:
(i) Assuming the Indenture has been duly authorized, executed and
delivered by the Company insofar as the laws of Switzerland are
concerned, the Indenture has been duly executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act and
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;
(ii) Assuming each Warrant Agreement has been duly authorized,
executed and delivered by the Company insofar as the laws of
Switzerland are concerned, each Warrant Agreement has been duly
executed and delivered by the Company and 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;
(iii) When the series of Debt Securities or Warrants has been duly
authorized and established in conformity with the Indenture or Warrant
Agreement and,
19
when the terms of a particular Security and of its issuance and sale
have been duly authorized by all necessary corporate action in
conformity with the Indenture or Warrant Agreement, and such Security
has been duly prepared, executed, authenticated and issued in
accordance with the Indenture or Warrant Agreement and delivered
against payment in accordance with this Agreement or any applicable
Terms Agreement, assuming such Security has been duly authorized,
executed and delivered by the Company insofar as the laws of
Switzerland are concerned, such Security will constitute 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;
(iv) Assuming this Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company insofar as
the laws of Switzerland are concerned, this Agreement and such
applicable Terms Agreement have been duly executed and delivered by the
Company;
(v) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company on or prior to the date
hereof under the Federal laws of the United States and the laws of the
State of New York for the execution and delivery of the Indenture and
the issuance, sale and delivery of the Securities by the Company or
through the Agents in accordance with the terms of this Agreement or
any applicable Terms Agreement have been obtained or made provided,
however, that such counsel need not express any opinion with respect to
state securities laws;
(vi) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" as such
term is defined in the Investment Company Act;
(vii) Such counsel reviewed the Registration Statement and the
Prospectus, participated in discussions with representatives of the
Company, its accountants and its Swiss counsel, and advised the Company
as to the requirements of the Act and the applicable rules and
regulations thereunder; between the effectiveness of the Registration
Statement and time of delivery of such letter, such counsel
participated in further discussions with representatives of the
Company, their accountants and their Swiss counsel regarding the
contents of certain portions of the Prospectus and certain related
matters and reviewed certificates of certain officers of the Company
and a letter addressed to the Agent from the independent accountants of
the Company; on the basis of the information that such counsel gained
in the course of the performance of such services, considered in the
light of their understanding of the applicable law and the experience
they have gained through their practice under the Act, such counsel
confirms to the Agents that, in their opinion the Registration
Statement as of the effective date, and the Prospectus, as of the date
of the Prospectus, appeared on their face to be appropriately
responsive to the requirements of the Act, the Trust Indenture Act and
the applicable rules and regulations of the Commission thereunder; and
that nothing that came to the
20
attention of such counsel in the course of such review has caused them
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 Prospectus, as of the
date of the Prospectus, contained any untrue statement of 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. In rendering the letter pursuant to this
clause (vi), such counsel may state that the limitations inherent in
the independent verification of factual matters and the character of
determinations involved in the registration process are such, however,
that they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or Prospectus except for those made under the
captions "Description of Debt Securities We May Offer", "Description of
Warrants We May Offer" and "Plan of Distribution" in the Prospectus, in
each case insofar as they relate to provisions, therein described, of
the Securities, the Indenture under which the Securities are to be
issued and the Distribution Agreement relating to the Securities, and
except for those made under the caption "U.S. Tax Considerations", in
the Prospectus, insofar as they relate to provisions of U.S. Federal
income tax law therein described; and that they do not express any
opinion or belief as to the financial statements or as to other
financial data derived from accounting records contained in the
Registration Statement or the Prospectus, or as to the statement of
eligibility of the Trustee under the Indenture; and that their letter
is furnished as counsel for the Company and is solely for the benefit
of the Company;
(d) Not later than 10:00 a.m., New York City time, on the Commencement
Date and on each applicable date referred to in Section 4(j) hereof that is on
or prior to such Solicitation Time or Time of Delivery, as the case may be, the
independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included in the Registration
Statement shall have furnished to such Agent a letter, dated the Commencement
Date or such applicable date, as the case may be, in form and substance
satisfactory to such Agent, to the effect set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant Time of
Delivery any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery; and
(ii) since the respective dates as of which information is given in
the Prospectus as amended or supplemented prior to the date of the
Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery there shall not have been any change in the
capital stock, or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or
21
affecting the general affairs, management, financial position, or
stockholders' equity, or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of such Agent so material and
adverse as to make it impracticable or inadvisable to proceed with the
solicitation by such Agent of offers to purchase Securities from the
Company or the purchase by such Agent of Securities from the Company as
principal, as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery;
(f) On or after the date hereof or on any applicable Terms Agreement
(i) no downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(g) On or after the date hereof or on any applicable Terms Agreement
there shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the SWX Swiss Stock Exchange or
the New York Stock Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the SWX Swiss Stock Exchange or the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities, or in
Switzerland declared by Swiss authorities; or (iv) the outbreak or escalation of
hostilities involving Switzerland or the United States or the declaration by
Switzerland or the United States of a national emergency or war, if the effect
of any such event specified in this clause (iv) in the reasonable judgment of
such Agent makes it impracticable or inadvisable to proceed with the
solicitation of offers to purchase Securities or the purchase of the Securities
from the Company as principal pursuant to the applicable Terms Agreement or
otherwise, as the case may be, on the terms and in the manner contemplated in
the Prospectus;
(h) (i) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency or any
Security the principal or interest of which is indexed to such currency,
currencies or composite currency, there shall not have occurred a suspension or
material limitation in foreign exchange trading in such currency, currencies or
composite currency by a major international bank, a general moratorium on
commercial banking activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of hostilities
involving, the occurrence of any material adverse change in the existing
financial, political or economic conditions of, or the declaration of war or a
national emergency by, the country or countries issuing such currency,
currencies or composite currency or the imposition or proposal of exchange
controls by any governmental authority in the country or countries issuing such
currency, currencies or composite currency; and
22
(ii) with respect to any Security linked to the securities of an
issuer other than the Company, additional conditions comparable to
those set forth in Sections 6(e), 6(f) and 6(g) shall have been
satisfied with respect to such issuer (with such additional conditions
being identical to those in Sections 6(e), (f) and (g), except that,
for this purpose, all references to the Company in such sections shall
be deemed to mean such other issuer and, if the principal trading
market for such other issuer's securities is not the New York Stock
Exchange, the reference to the New York Stock Exchange in Section
6(g)(i) shall be deemed to mean either the New York Stock Exchange or
such principal trading market and in Section 6(g)(ii) shall be deemed
to mean only such principal trading market), it being understood that
nothing in this clause (ii) shall limit or otherwise affect conditions
in Sections 6(e), (f) and (g), which shall apply in addition to any
conditions applicable pursuant to this clause (ii));
(i) The Company shall have furnished or caused to be furnished to such
Agent certificates of officers of the Company dated the Commencement Date and
each applicable date referred to in Section 4(k) hereof that is on or prior to
such Solicitation Time or Time of Delivery, as the case may be, in such form and
executed by such officers of the Company as shall be satisfactory to such Agent,
as to the accuracy of the representations and warranties of the Company herein
at and as of the Commencement Date or such applicable date, as the case may be,
as to the performance by the Company of all of its obligations hereunder to be
performed at or prior to the Commencement Date or such applicable date, as the
case may be, as to the matters set forth in subsections (a) and (e) of this
Section 6, and as to such other matters as such Agent may reasonably request;
(j) There is no outstanding material breach of any obligations of the
Company under the relevant Securities or this Agreement which has not been
waived by the relevant Agent on or prior to the Solicitation Time or Time of
Delivery of the relevant Securities;
(k) In the case of Securities that are intended to be listed, the
relevant stock exchange has agreed to list such Securities; and
(l) For the issue and sale of Securities denominated in a currency
other than U.S. dollars, all necessary approvals have been obtained from the
relevant central bank or other fiscal, monetary, regulatory or other authority.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which such
Agent may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
23
any such action or claim as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection, unless the indemnifying party shall have
been materially prejudiced by the failure to give such notice. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought under this Section 7 (whether or not the indemnified party is an
actual or potential
24
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent from the Company in respect thereof. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by any Agent on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Agent agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by per capita allocation (even
if all Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), an Agent shall
not be required to contribute any amount in excess of the amount by which the
total public offering price at which the Securities purchased by or through it
were sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to
25
contribute are several in proportion to the respective purchases made by or
through it to which such loss, claim, damage or liability (or action in respect
thereof) relates and are not joint.
(d) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations, warranties
and other statements by any Agent and the Company set forth in or made pursuant
to this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. (a) The provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company may be suspended or terminated
at any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (i) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (ii) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously accrued
or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination
(including all Securities that may be the subject of a Secondary Market
Transaction at any time during the Secondary Transactions Period) and (z) in any
event, this Agreement shall remain in full force and effect insofar as the
fourth paragraph of Section 2(a) and Sections 4(d), 4(e), 5, 7, 8 and 9 hereof
are concerned.
26
(b) The Company, in its sole discretion, may appoint one or more
additional parties to act as Agents hereunder from time to time. Any such
appointment shall be made in a writing signed by the Company and the party so
appointed. Such appointment shall become effective in accordance with its terms
after the execution and delivery of such writing by the Company and such other
party. When such appointment is effective, such other party shall be deemed to
be one of the Agents referred to in, and to have the rights and obligations of
an Agent under, this Agreement, subject to the terms and conditions of such
appointment. The Company shall deliver a copy of such appointment to each other
Agent promptly after it becomes effective.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and shall be sufficient in all respects when delivered or sent by facsimile
transmission, personal delivery or registered mail to UBS Warburg LLC, 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Facsimile No.
_______________, Attention: _________________; if to any Agent other than UBS
Warburg LLC, shall be sufficient in all respects when delivered or sent by
facsimile transmission if to UBS Warburg LLC, or registered mail to the
facsimile number or address provided by such Agent to the Company in the
document appointing such Agent as an Agent under this Agreement; and if to the
Company, shall be sufficient in all respects when delivered or sent by facsimile
transmission, personal delivery or registered mail to UBS AG, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Facsimile No. ____________, Attention:____________.
Any such statements, requests, notices or advices shall take effect upon receipt
thereof.
12. (a) This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company and, to the
extent provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any Agent
hereunder shall be deemed a successor or assign by reason merely of such
purchase.
(b) The Agents may assign or transfer their rights or obligations under
this Agreement with the prior written consent of the Company. If the Agents
assign their rights or transfer their obligations as provided in this Section,
the relevant assignee or transferee shall be treated as if it were a party to
this Agreement with effect from the date on which such assignment or transfer
takes effect; provided that any transfer shall only become effective when the
Company has received an undertaking from the transferee to be bound by this
Agreement and to perform the obligations transferred to it. Such assignment or
transfer shall not affect any rights or obligations (including, but not limited
to, those arising under Sections 6, 7 or 10) that have accrued at the time of
assignment or transfer or that accrue thereafter to the Agents in relation to
any act or omission or alleged act or omission that occurred prior to such
assignment or transfer.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
27
14. (a) THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Each party hereto irrevocably submits to the exclusive
jurisdiction of any U.S. federal or New York State court sitting in New York
City, the Borough of Manhattan, for the purpose of any suit, action or
proceeding against it arising out of or related to this Agreement
("Proceedings"). Each party hereto irrevocably waives, to the fullest extent
permitted by law, any objection that it may have to the laying of the venue of
any such Proceedings brought in such a court and any claim that any such
Proceedings have been brought in an inconvenient forum. Each party hereto agrees
that final judgment in any Proceedings brought in such a court shall be
conclusive and binding upon such party and may be enforced in any court to the
jurisdiction of which it is subject by a suit upon such judgment; provided that
service of process is effected upon such party in the manner specified below or
as otherwise permitted by law.
(c) As long as any Security remains outstanding, the Company
shall at all times have an authorized agent in New York City, the Borough of
Manhattan, upon whom process may be served in connection with any Proceedings.
Service of process upon such agent in accordance with the then applicable law
and written notice of such service mailed or delivered to the Company shall, to
the fullest extent permitted by applicable law, be deemed in every respect
effective service of process upon the Company in any Proceedings. The Company
hereby appoints ___________________, with offices at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: __________, as its agent for such purposes in New
York City, the Borough of Manhattan, and ___________________ hereby accepts such
appointment. The Company covenants and agrees that (i) service of process in any
Proceedings may be made upon it at such offices of such agent (or such other
address in New York City, the Borough of Manhattan, or at the office of any
other authorized agent as the Company may designate by written notice to the
Agent) and (ii) prior to such termination of such agency for any reason, it will
so appoint a successor thereto as agent.
(d) Each party hereto hereby to the fullest extent permitted by
law irrevocably waives and agrees not to plead any immunity from the
jurisdiction of any U.S. federal or New York State court sitting in New York
City, the Borough of Manhattan, to which it may be or become entitled (including
sovereign immunity and immunity from prejudgment attachment, post judgment
attachment and execution) in any Proceeding.
(e) The provisions of this Section 14 shall survive any
termination of this Agreement, in whole or in part.
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
16. Any amounts payable to an Agent hereunder shall be payable free and
clear of, and without deduction or withholding for or an account of, any and all
present and future taxes,
28
assessments or other governmental charges now or hereafter imposed or assessed
by Switzerland or any political subdivision or taxing authority thereof or
therein ("Foreign Taxes"). If Foreign Taxes are so levied or imposed, the
Company agrees to pay such additional amounts ("Additional Amounts") as may be
necessary so that the amount due under this Agreement after withholding or
deduction for or on an account of Foreign Taxes will not be less that the amount
provided for herein; provided, however, the Company will not be required to make
any payment of Additional Amounts to an Agent for or on account of (a) any such
Foreign Taxes which would not have been so imposed but for the existence of an
of any present or former connection between such Agent (or between a member or
shareholder of such Agent) and Switzerland (or any political subdivisions or
taxing authority thereof or therein) including, without limitation, such Agent
(or such member or shareholder) being or having been a resident thereof or being
or having been engaged in a trade or business or present therein or having, or
having had, a permanent establishment therein or (b) any Foreign Taxes which
would not have been imposed but for the failure to comply with certification,
information or other reporting requirements concerning the nationality,
residence or identify of the Agent, if such compliance is required by statute or
by regulation of Switzerland or of any political subdivisions or taxing
authority thereof or therein as a precondition to relief or exemption from such
Foreign Taxes.
17. If, for the purposes of obtaining a 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 an Agent or the Company, as the case
may be, could purchase United States dollars with such other currency in the
Borough of Manhattan, City and State of New York on the business day preceding
that on which final judgment is given. If, on the first business day following
receipt by such Agent or the Company, as the case may be, of any sum adjudged to
be so due in such other currency, on which (and only to the extent that) such
Agent or the Company, as the case may be, may in accordance with normal banking
procedures purchase United States dollars which the Company or Agent, as the
case may be, could purchase are less than the sum originally due to the Agent or
the Company, as the case may be, hereunder, then the paying party agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
party being paid for such difference. If the United States dollars which the
Company or the Agent, as the case may be, could purchase on such first business
day are greater than the sum originally due hereunder, then the party being paid
agrees to pay the paying party an amount equal to the excess of the United
States dollars over the sum originally due hereunder. If the foregoing is in
accordance with your
29
understanding, please sign and return to us four counterparts hereof, whereupon
this letter and the acceptance by you thereof shall constitute a binding
agreement between the Company and you in accordance with its terms.
Very truly yours,
UBS AG
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
(UBS Warburg LLC)
By:
----------------------------------
Name:
Title:
30
ANNEX I
UBS AG
$4,529,508,000
DEBT SECURITIES AND WARRANTS
TERMS AGREEMENT
____ ___, 2001
UBS Warburg LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
[INSERT NAMES OF ANY OTHER PURCHASERS]
Ladies and Gentlemen:
UBS AG (the "Company") proposes, subject to the terms and conditions
stated herein and in the Distribution Agreement, dated________, 200- (the
"Distribution Agreement"), between the Company on the one hand and UBS Warburg
LLC and any other party acting as Agent thereunder on the other, to issue and
sell to you the securities specified in the Schedule hereto (the "Purchased
Securities"). Each of the provisions of the Distribution Agreement not
specifically related to the solicitation by the Agents, as agents of the
Company, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
[An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.]
1
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to you and you agree to purchase from the Company the Purchased
Securities, at the time and place, in the principal amount and at the purchase
price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us ...... counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company
Very truly yours,
UBS AG
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
(UBS Warburg LLC)
[Name(s) of other purchasers]
By:
----------------------------------
Name:
Title:
2
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[Debt Securities] [Warrants]
Aggregate Principal Amount:
[$ or units of other Specified Currency]
-------------
[Price to Public:]
Purchase Price by UBS Warburg LLC [Name(s) of other purchasers]:
% of the principal amount of the Purchased Securities [, plus accrued
interest from to ] [and accrued amortization, if
------------------ -------------
any, from to ]
--------------- --------------
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of
the Company, in [[New York] Clearing House] [immediately available] funds] [By
wire transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Indenture:
Indenture, dated as of 2001, between the Company
-----------------------
and , as Trustee
---------------------
Warrant Agreement:
Warrant Agreement, dated as of , 2001, between the Company
-------------
and , as Warrant Agent
----------------------
Time of Delivery:
Closing:
Location for Delivery of Securities:
Maturity: Interest Rate:
[ %] [Zero Coupon] [Describe applicable floating rate provisions]
Interest Payment Dates:
[months and dates]
3
Principal repayment terms:
[Describe applicable terms]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).]
[(2) The opinions of Swiss and United States counsel to the Company
referred to in Sections 4(i) and (j).]
[(3) The accountants' letter referred to in Section 4(k).]
[(4) The officers' certificate referred to in Section 4(l).]
Other Provisions (including Syndicate Provisions, if applicable):
4
ANNEX II
UBS AG Administrative Procedure
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated ________, 200- (the "Distribution Agreement"),
between UBS AG, a corporation organized under the laws of Switzerland (the
"Company") on the one hand and UBS Warburg LLC and any other party acting as
Agent thereunder, on the other, to which this Administrative Procedure is
attached as Annex II. Defined terms used herein and not defined herein shall
have the meanings given such terms in the Distribution Agreement, the Prospectus
as amended or supplemented, the Indenture, any Warrant Agreement or the
Securities. To the extent the procedures set forth below conflict with the
provisions of the Securities, the Indenture, each Warrant Agreement or the
Distribution Agreement, the relevant provisions of the Securities, the
Indenture, each Warrant Agreement and the Distribution Agreement shall control.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee or Warrant Agent, as agent for The Depository Trust Company (the
"Depositary"), and recorded in the book-entry system maintained by the
Depositary (a "Book-Entry Security"), or a certificate issued in definitive form
(a "Certificated Security") delivered to a person designated by an Agent, as set
forth in the applicable Pricing Supplement. An owner of a Book-Entry Security
will not be entitled to receive a certificate representing such a Security,
except as provided in the Indenture or a Warrant Agreement.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
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PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
or Warrant Agent will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under a
Letter of Representation from the Company and the Trustee or Warrant Agent to
the Depositary, dated the date of the Distribution Agreement, and a [ ]
Certificate Agreement between the Trustee or Warrant Agent and the Depositary,
dated as of _________ (the "Certificate Agreement"), and its obligations as a
participant in the Depositary, including the Depositary's Same-Day Funds
Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee or Warrant Agent.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
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(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency (it being understood that currently the
Depositary accepts deposits of Global Securities denominated
in U.S. dollars only);
(7) The Exchange Rate Agent and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Book-Entry Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of
the Redemption Commencement Date,
(iv) Repayment date, and
(v) Repayment price;
(12) If an Original Issue Discount Book-Entry Security, the total
amount of Original Issue Discount, the yield to Maturity and
the initial accrual period of Original Issue Discount;
(13) If a Floating Rate Book-Entry Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity and Index Currency,
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(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Base Rate,
(vii) Initial Interest Rate,
(viii) Interest Reset Dates,
(ix) Calculation Dates,
(x) Interest Determination Dates,
(xi) Interest Payment Dates,
(xii) Regular Record Dates, and
(xiii) Calculation Agent;
(14) Name, address and taxpayer identification number of the
registered Holder(s);
(15) Denomination of certificates to be delivered at settlement;
(16) Book-Entry Security or Certificated Security; and
(17) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a list
of CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee or Warrant Agent will enter a pending deposit message
through the Depositary's Participant Terminal System, providing the following
settlement information to the Depositary, and the Depositary shall forward such
information to such Agent and Standard & Poor's Ratings Group (or such other
entity that assigns CUSIP numbers or any other identification designations being
used for the relevant Securities):
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
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(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary
on behalf of the Selling Agent or Purchasing Agent, as the case may
be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for the
Depositary's purposes (which in the case of Floating Rate Securities
which reset daily or weekly shall be the date five calendar days
immediately preceding the applicable Interest Payment Date and in
the case of all other Book-Entry Securities shall be the Regular
Record Date, as defined in the Security) and, if calculable at that
time, the amount of interest payable on such Interest Payment Date.
D. The Trustee or Warrant Agent will complete and authenticate the
Global Security previously delivered by the Company representing such Book-Entry
Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
or Warrant Agent's participant account at the Depositary.
F. The Trustee or Warrant Agent will enter an SDFS deliver order
through the Depositary's Participant Terminal System instructing the Depositary
to (i) debit such Book-Entry Security to the Trustee's or Warrant Agent's
participant account and credit such Book-Entry Security to such Agent's
participant account and (ii) debit such Agent's settlement account and credit
the Trustee's or Warrant Agent's settlement account for an amount equal to the
price of such Book-Entry Security less such Agent's commission or discount, as
the case may be. The entry of such a deliver order shall constitute a
representation and warranty by the Trustee or Warrant Agent to the Depositary
that (a) the Global Security representing such Book-Entry Security has been
issued and authenticated and (b) the Trustee or Warrant Agent is holding such
Global Security pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee or Warrant Agent
will transfer to the account of the Company maintained at
__________________________________, or such
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other account as the Company may have previously specified to the Trustee or the
Warrant Agent, in funds available for immediate use in the amount transferred to
the Trustee in accordance with Settlement Procedure "F".
J. Upon request, the Trustee or the Warrant Agent will send to the
Company a statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to
the purchaser either by transmitting to the participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee or the Warrant Agent, promptly furnish to the Company or the Trustee or
the Warrant Agent a list of the names and addresses of the participants for whom
the Depositary has credited Book-Entry Securities.
Preparation of Prospectus or Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the business day following the Trade Date
(as defined below), or if the Company and the purchaser agree to settlement on
the business day following the date of acceptance of such offer, not later than
noon, New York City time, on such date. The Company will arrange to have the
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth business day (or second business day, if
such Book-Entry Security is to be sold pursuant to Rule 430A under the
Securities Act) following the date on which such Pricing Supplement is first
used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment
for a Book-Entry Security and the authentication and issuance of the Global
Security representing such Book-
II-6
Entry Security shall constitute "settlement" with respect to such Book-Entry
Security. All orders of Book-Entry Securities solicited by a Selling Agent or
made by a Purchasing Agent and accepted by the Company on a particular date (the
"Trade Date") will be settled on a date (the "Settlement Date") which is the
third business day after the Trade Date pursuant to the "Settlement Procedure
Timetable" set forth below, unless the Company and the purchaser agree to
settlement on another business day which shall be no earlier than the next
business day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third business day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
Settlement Procedure Time
A 5:00 p.m. on the business day following the Trade
Date or 10:00 a.m. on the business day
prior to the Settlement Date, whichever
is earlier
B 12:00 noon on the second business day immediately
preceding the Settlement Date
C 2:00 p.m. on the second business day immediately
preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry Security
has not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second business day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
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If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee or Warrant Agent, upon obtaining knowledge thereof, will deliver to the
Depositary, through the Depositary's Participation Terminal System, a
cancellation message to such effect by no later than 2:00 p.m. on the business
day immediately preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to
a Book-Entry Security pursuant to Settlement Procedure "F", the Trustee or
Warrant Agent may deliver to the Depositary, through the Depositary's
Participant Terminal System, as soon as practicable a withdrawal message
instructing the Depositary to debit such Book-Entry Security to the Trustee's or
Warrant Agent's participant account, provided that the Trustee's or Warrant
Agent's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee or
Warrant Agent will xxxx such Global Security "canceled", make appropriate
entries in the Trustee's or Warrant Agent's records and send such canceled
Global Security to the Company. The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry Securities represented by
a Global Security, the Trustee or Warrant Agent will exchange such Global
Security for two Global Securities, one of which shall represent such Book-Entry
Security or Securities and shall be canceled immediately after issuance and the
other of which shall represent the remaining Book-Entry Securities previously
represented by the surrendered Global Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's or
Warrant Agent's participant account and shall notify the Company and the Trustee
or Warrant Agent thereof. Thereafter, the Trustee or Warrant Agent will (i)
immediately notify the Company of such order and the Company shall transfer to
such Agent funds available for immediate use in an amount equal to the price of
such Book-Entry Security which was credited to the account of the Company
maintained at the Trustee or Warrant Agent in accordance with Settlement
Procedure I, and (ii) deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to perform
its obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Company.
II-8
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, the Depositary may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Securities to
have been represented by a Global Security, the Trustee or Warrant Agent will
provide, in accordance with Settlement Procedure "D", for the authentication and
issuance of a Global Security representing the other Book-Entry Securities to
have been represented by such Global Security and will make appropriate entries
in its records. The Company will, from time to time, furnish the Trustee or
Warrant Agent with a sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
II-9
(2) If a Fixed Rate Certificated Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency;
(7) The Exchange Rate Agent and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Certificated Security, such of
the following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of
the Redemption Commencement Date,
(iv) Repayment date, and
(v) Repayment price;
(12) If an Original Issue Discount Certificated Security, the total
amount of Original Issue Discount, the yield to Maturity and
the initial accrual period of Original Issue Discount;
(13) If a Floating Rate Certificated Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity and Index Currency,
(iii) Spread or Spread Multiplier,
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(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Base Rate,
(vii) Initial Interest Rate,
(viii) Interest Reset Dates,
(ix) Calculation Dates, (x) Interest Determination Dates,
(xi) Interest Payment Dates,
(xii) Regular Record Dates, and
(xiii) Calculation Agent;
(14) Name, address and taxpayer identification number of the
registered owner(s);
(15) Denomination of certificates to be delivered at settlement;
(16) Book-Entry Security or Certificated Security; and
(17) Selling Agent or Purchasing Agent.
Preparation of Prospectus or Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Prospectus Supplement or Pricing Supplement, as applicable,
reflecting the terms of such Certificated Security and arrange to have delivered
to the Selling Agent or Purchasing Agent, as the case may be, at least ten
copies of such Pricing Supplement, not later than 5:00 p.m., New York City time,
on the business day following the Trade Date, or if the Company and the
purchaser agree to settlement on the date of acceptance of such offer, not later
than noon, New York City time, on such date. The Company will arrange to have
the Pricing Supplement filed with the Commission not later than the close of
business of the Commission on the fifth business day (or second business day, if
such Certificated Security is to be sold pursuant to Rule 430A under the
Securities Act) following the date on which such Pricing Supplement is first
used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement, as applicable) in relation to such Certificated Security prior to or
II-11
together with the earlier of the delivery to such purchaser or its agent of (a)
the confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or
made by a Purchasing Agent and accepted by the Company will be settled on a date
(the "Settlement Date") which is the third business day after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another business day after the acceptance of such offer or (b)
with respect to an offer accepted by the Company prior to 10:00 a.m., New York
City time, on the date of such acceptance.
Instruction from Company to Trustee or Warrant Agent for Preparation of
Certificated Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee or Warrant Agent by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means.
The Company will instruct the Trustee or Warrant Agent by facsimile
transmission or other acceptable written means to authenticate and deliver the
Certificated Securities no later than 2:15 p.m., New York City time, on the
Settlement Date. Such instruction will be given by the Company prior to 3:00
p.m., New York City time, on the business day immediately preceding the
Settlement Date unless the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated Securities in which case such
instruction will be given by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee or Warrant Agent
and Receipt of Payment Therefor:
The Trustee or Warrant Agent will prepare each Certificated Security
and appropriate receipts that will serve as the documentary control of the
transaction.
In the case of a sale of Certificated Securities to a purchaser
solicited by a Selling Agent, the Trustee or Warrant Agent will, by 2:15 p.m.,
New York City time, on the Settlement Date, deliver the Certificated Securities
to the Selling Agent for the benefit of the purchaser of such Certificated
Securities against delivery by the Selling Agent of a receipt therefor. On the
Settlement Date the Selling Agent will deliver payment for such Certificated
Securities in immediately available funds to the Company in an amount equal to
the issue price of the Certificated Securities less the Selling Agent's
commission; provided that the Selling Agent reserves the right to withhold
payment for which it has not received funds from the purchaser. The Company
shall not use any proceeds advanced by a Selling Agent to acquire securities. In
the case of a sale of Certificated Securities to a Purchasing Agent, the Trustee
or Warrant Agent will, by 2:15 p.m., New York City time, on the Settlement Date,
deliver the Certificated
II-12
Securities to the Purchasing Agent against delivery of payment for such
Certificated Securities in immediately available funds to the Company in an
amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee or Warrant Agent and the Company thereof by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means. The Selling Agent will immediately return the Certificated Security to
the Trustee or Warrant Agent. Immediately upon receipt of such Certificated
Security by the Trustee or Warrant Agent, the Company will return to the Selling
Agent an amount equal to the amount previously paid to the Company in respect of
such Certificated Security. The Company will reimburse the Selling Agent on an
equitable basis for its loss of the use of funds during the period when they
were credited to the account of the Company. The Trustee or Warrant Agent will
cancel the Certificated Security in respect of which the failure occurred, make
appropriate entries in its records and, unless otherwise instructed by the
Company, destroy the Certificated Security.
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ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Sections 4(j) and 6(d), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Registration Statement or the Prospectus as
most recently amended or supplemented comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, copies of which
have been furnished to the Agents;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus as most recently amended or supplemented as
indicated in their reports thereon copies of which have been furnished
to the Agents; and on the basis of specified procedures including
inquiries of officials of the Company, who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus as most recently amended or supplemented agrees with the
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d) respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus as amended or supplemented, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus as most recently amended or supplemented do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus as most recently amended or supplemented for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus as most
recently amended or supplemented do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included in the Prospectus as most recently amended
or supplemented;
(C) the unaudited financial statements which were not
included in the Prospectus as most recently amended or
supplemented but from which were derived the unaudited
condensed financial statements referred to in clause (A) and
any unaudited income statement data and balance sheet items
included in the Prospectus as most recently amended or
supplemented and referred to in
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clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements
included in the Prospectus as most recently amended or
supplemented;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus as most
recently amended or supplemented do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements as of a specified date not
more than five days prior to the date of such letter, there
have been any changes in the consolidated capital stock (other
than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each
case which were outstanding on the date of the latest balance
sheet included in the Prospectus as most recently amended or
supplemented) (or partners' capital as applicable) or any
increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Agents, or any increases in any items specified by the Agents,
in each case as compared with amounts comparable shown in the
latest balance sheet included in the Prospectus as most
recently amended or supplemented, except in each case for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(E) for the period from the date of the latest
financial statements included in the Prospectus as most
recently amended or supplemented to the specified date
referred to in clause (E) there were any decreases in
consolidated total revenues or consolidated revenues, net of
interest expense, pre-tax earnings or total or per share
amounts of consolidated net income or other items specified by
the Agents, or any increases in any items specified by the
Agents, in each case as compared with the comparable items in
the comparable period of the preceding year and with any other
period of corresponding length specified by the Agents, except
in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the audit referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other
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procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Agents which are derived from the general accounting records of the
Company and its subsidiaries which appear in the Prospectus, or in Part
II of, or in exhibits and schedules to, the Registration Statement
specified by the Agents, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex III to the Prospectus shall be deemed to refer to
the Prospectus as defined in the Distribution Agreement as of the Commencement
Date referred to in Section 6(d) thereof and to the Prospectus as amended or
supplemented as of the date of the amendment, supplement or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
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