EXHIBIT 1
SEA CONTAINERS LTD.
(a Bermuda company)
2,000,000 Class A Common Shares
(par value $.01 each)
SALES AGREEMENT
November __, 2003
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Sea Containers Ltd., a company incorporated in Bermuda ("Sea
Containers"), confirms its agreement with you with respect to the offer and sale
by Sea Containers of up to 2,000,000 shares (the "Shares") of the class A common
shares, par value $.01 each, of Sea Containers (the "Class A Shares").
Subject to the terms and conditions stated herein, Sea Containers hereby
(i) appoints you as its agent for the purpose of selling any or all of the
Shares in accordance with the provisions of paragraph 2(a) hereof, and (ii)
agrees that whenever Sea Containers determines to sell Shares directly to you as
principal for resale to others, it will enter into a Terms Agreement relating to
such sale in accordance with the provisions of Section 2(b) hereof.
Sea Containers has filed with the Securities and Exchange Commission
(the "Commission") two registration statements on Form S-3 (Registration Nos.
333-5458 and 333-101574), both of which have been declared effective, relating
to the offer and sale of the Shares by Sea Containers from time to time in
accordance with Rule 415(a)(1)(x) under the Securities Act of 1933 (the "1933
Act"). Such registration statements, including the exhibits thereto, at the time
Registration Statement No. 333-101574 became effective, are hereinafter called
the "Registration Statements," and the combined Rule 429 prospectus constituting
Part I of the Registration Statements is hereinafter called the "Prospectus,"
except that (a) if an amended Prospectus or Prospectus supplement is filed by
Sea Containers pursuant to Rule 424(b) under the 1933 Act, the term "Prospectus"
will mean the last such amendment or supplement, and (b) whenever the Company
files any report pursuant to Section 13(a), 13(c) or 15(d) of the Securities
Exchange Act of 1934 (the "1934 Act") which is incorporated by reference into
the Registration Statements pursuant to Item 12 of Form S-3, the terms
"Registration Statements" and "Prospectus" will include such report from and
after the time it is filed with the Commission.
Each Share includes a right (a "Right") to purchase, under certain
circumstances, one two-hundredth of a series A junior participating preferred
share of Sea Containers ("Preferred Share"), subject to adjustment. The Rights
are being issued pursuant to a Rights Agreement dated as of May 9, 1988 and
amended and restated as of June 1, 1998, between Sea Containers
and EquiServe Trust Company N.A. (successor to BankBoston, N.A.), as rights
agent (the "Rights Agreement").
SECTION 1. Representations and Warranties. Sea Containers represents and
warrants to you as of the date of this Agreement, and will represent and warrant
to you on each date when any post-effective amendment to Registration Statement
No. 333-101574 becomes effective (an "Effective Date"), each Settlement Date (as
defined in paragraph 2(b) below) and each time referred to in paragraphs 6(a)
and 6(b) below (a "Representation Date"), as follows:
(a) The Registration Statements comply in all material respects
with the requirements of the 1933 Act and the rules of the Commission
thereunder and do not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus
complies in all material respects with the requirements of the 1933 Act
and the rules of the Commission thereunder, and does not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
the representations and warranties in this paragraph (a) do not apply to
statements in or omissions from the Registration Statements or Prospectus
made in reliance upon and in conformity with information furnished to Sea
Containers in writing by you expressly for use in the Registration
Statements or Prospectus, as provided in paragraph 7(a) of this
Agreement.
(b) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
or hereafter are filed with the Commission, complied or will comply, as
the case may be, in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder, and
when read together with the other information in the Prospectus, do not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they are made, not misleading.
(c) Sea Containers meets the registrant requirements for the use
of Form S-3 for the Registration Statements, and the Registration
Statements meet the requirements set forth in Rule 415(a)(1)(x) under the
1933 Act and comply in all other material respects with said Rule.
(d) Sea Containers and its subsidiaries have been duly organized
and are validly existing as companies or corporations, as the case may
be, in good standing under the laws of their respective jurisdictions of
organization, with full power and authority (corporate and other) to own,
lease and operate their respective properties and conduct their
respective businesses as described in the Prospectus; Sea Containers and
its subsidiaries are in compliance with all laws requiring their
qualification to do business as foreign corporations, and are in good
standing, in all jurisdictions in which they respectively own or lease
properties of a nature, or transact business of a type, that would
require such qualification, except where the failure to comply with such
laws would not have a material adverse effect on the condition (financial
or otherwise), earnings,
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business affairs or business prospects of Sea Containers and its
subsidiaries considered as one enterprise (a "Material Adverse Effect").
(e) The outstanding capital shares of the subsidiaries of Sea
Containers have been duly authorized and validly issued and are fully
paid and nonassessable, and Sea Containers owns the outstanding capital
shares of its subsidiaries, directly or indirectly, free and clear of all
liens and encumbrances, except as disclosed in the Prospectus or except
where such liens or encumbrances would not have a Material Adverse
Effect.
(f) To the knowledge of Sea Containers, Deloitte & Touche LLP, the
accountants who certified the financial statements and supporting
schedules included in or incorporated by reference into the Registration
Statements and the Prospectus, are independent public accountants as
required by the 1933 Act and the rules of the Commission.
(g) The consolidated financial statements of Sea Containers and
its consolidated subsidiaries included in or incorporated by reference
into the Registration Statements and the Prospectus present fairly the
financial position and results of operations of Sea Containers and its
subsidiaries on a consolidated basis at the respective dates or for the
respective periods to which they apply; such financial statements have
been prepared in conformity with U.S. generally accepted accounting
principles applied on a consistent basis throughout the respective
periods involved and in compliance with the applicable accounting
requirements of the 1933 Act, the 1934 Act and the rules of the
Commission; and the supporting financial statement schedule or schedules
included or incorporated by reference into the Registration Statements,
when considered in relation to the basic consolidated financial
statements taken as a whole, presents or present fairly in all material
respects the information required to be stated therein. The summary
consolidated financial data included or incorporated by reference in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Registration Statements.
(h) Since the date of the latest audited financial statements
incorporated by reference in the Registration Statements and the
Prospectus, except as otherwise stated in the Prospectus, (A) there has
been no material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of Sea
Containers and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Change"), (B) except for this Agreement and the transactions contemplated
hereby and as otherwise disclosed in the Prospectus, there have been no
transactions entered into by Sea Containers or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to Sea Containers and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by Sea Containers on any class of its common
shares except ordinary quarterly cash dividends currently at the rate of
$0.025 per Class A Share and $0.0225 per class B common share of Sea
Containers ("Class B Share").
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(i) There is no action, suit or proceeding before or by any court
or governmental agency or body, United States domestic ("domestic") or
foreign (other than as disclosed in or by incorporation by reference into
the Registration Statements), now pending or, to the knowledge of Sea
Containers, threatened, against or affecting Sea Containers or any of its
subsidiaries, which action, suit or proceeding is required to be
disclosed in or incorporated by reference into the Registration
Statements or might result in a Material Adverse Change, or might
materially and adversely affect the sale of the Shares pursuant to this
Agreement and any applicable Terms Agreement; and all pending or
threatened legal or governmental proceedings to which Sea Containers or
any of its subsidiaries is a party or of which any of their property is
the subject and which are not described in or incorporated by reference
into the Registration Statements or otherwise publicly disclosed prior to
the date of this Agreement and any applicable Terms Agreement, including
ordinary routine litigation incidental to their businesses, are,
considered in the aggregate, not material to Sea Containers and its
subsidiaries considered as one enterprise.
(j) There are no contracts or documents of Sea Containers or any
of its subsidiaries which are required to be filed or incorporated by
reference as exhibits to the Registration Statements by the 1933 Act or
by the rules of the Commission, or are required to be described in the
Prospectus, which have not been so filed or incorporated by reference or
described therein.
(k) Neither Sea Containers nor any of its subsidiaries is in
violation of its charter or bye-laws or other constituent documents, or
is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust or other instrument or agreement to which it is a
party or by which it or its property may be bound or subject, except for
such defaults, if any, that would not have a Material Adverse Effect.
(1) The execution and delivery by Sea Containers of this Agreement
and any applicable Terms Agreement, the performance by Sea Containers of,
or its compliance with, its obligations under, this Agreement and any
applicable Terms Agreement, the sale and delivery by Sea Containers of
the Shares, the Rights and, upon exercise of the Rights, the Preferred
Shares, and the other transactions contemplated in this Agreement, any
applicable Terms Agreement or the Registration Statements, do not and
will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of Sea Containers or any of its subsidiaries under,
(1) any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which Sea Containers or any
of its subsidiaries is a party or by which any of them is bound
or to which any of their properties may be subject, except for
such breaches, violations, defaults, liens, charges or
encumbrances, if any, that would not have a Material Adverse
Effect, or
(2) the charter or bye-laws or other constituent documents
of Sea Containers or any of its subsidiaries, or
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(3) any statute, rule or regulation, or any decree,
judgment or order of any court or governmental agency or body
(domestic or foreign) having jurisdiction over Sea Containers or
any of its subsidiaries or over their respective properties,
except for such breaches, violations or defaults, liens, charges
or encumbrances, if any, that would not have a Material Adverse
Effect.
(m) No consent, approval, authorization or order of, or
registration, qualification or filing of or with, any court or
governmental agency or body (domestic or foreign) is required for the
performance by Sea Containers of its obligations under this Agreement and
any applicable Terms Agreement or the consummation of the transactions
contemplated by this Agreement or otherwise in connection with the valid
sale and delivery by Sea Containers of the Shares, the Rights and, upon
exercise of the Rights, the Preferred Shares except
(1) such as have been or will be obtained or made under
the 1933 Act,
(2) such as have been or will be obtained from the Bermuda
Monetary Authority, and
(3) such as may be required under state securities laws in
connection with the purchase and distribution of the Shares and
Rights by you.
(n) Sea Containers has full power and authority to sell the Shares
as contemplated by this Agreement.
(o) This Agreement, together with any applicable Terms Agreement,
has been duly authorized, executed and delivered by Sea Containers and is
a valid and binding agreement of Sea Containers, except that (i) the
validity of the indemnification and contribution provisions of Sections 7
and 8 of this Agreement may be limited by public policy considerations,
and (ii) the validity of Section 16 of this Agreement may be limited by
the public policy of the State of New York, and with respect to the
United States District Court for the Southern District of New York, may
be subject to the discretion of the court pursuant to 28 U.S.C. Section
1404(a).
(p) All of the outstanding capital shares of Sea Containers
(including the Shares) have been duly authorized and validly issued, and
are fully paid and nonassessable, and no holder thereof is subject to
personal liability by reason of being such a holder; none of the
outstanding capital shares of Sea Containers was issued in violation of
the preemptive rights of any shareholder of Sea Containers; and the
descriptions of the Shares and the Rights in the Prospectus are
materially accurate and complete summaries.
(q) The Rights Agreement has been duly authorized, executed and
delivered by Sea Containers; the Rights have been duly authorized by Sea
Containers, and the Rights attached to the Shares are validly issued; and
the Preferred Shares issuable upon exercise of such Rights have been duly
authorized by Sea Containers and validly reserved for issuance upon the
exercise of the Rights and, when issued upon such exercise in
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accordance with the terms of the Rights Agreement, will be validly
issued, fully paid and nonassessable.
(r) The Class A Shares (including the Shares) and the Rights
associated therewith, are listed on the New York Stock Exchange and the
Pacific Exchange.
(s) There are no contracts, agreements or understandings between
Sea Containers and any person other than Sea Containers, granting such
person the right to require Sea Containers to include in the Registration
Statements any securities (debt or equity) of Sea Containers owned or to
be owned by such person.
(t) Each of Sea Containers and its subsidiaries has good and
marketable title to all properties and assets owned by it, free and clear
of all liens, charges, encumbrances or restrictions, except such as (A)
are otherwise described in the Prospectus or (B) are neither material in
amount nor materially significant in relation to the business of Sea
Containers and its subsidiaries considered as one enterprise. All of the
leases and subleases material to the business of Sea Containers and its
subsidiaries, considered as one enterprise, and under which Sea
Containers or any subsidiary holds properties, are in full force and
effect, and neither Sea Containers nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse
to the rights of Sea Containers or any subsidiary under any of the leases
or subleases mentioned above, or affecting or questioning the rights of
Sea Containers or such subsidiaries to the continued possession of the
leased or subleased premises under any such lease or sublease.
(u) Except as disclosed in the Registration Statements, or except
as would not individually or in the aggregate have a Material Adverse
Effect, each of Sea Containers and its subsidiaries owns, possesses or
has obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations necessary to own or
lease, as the case may be, and to operate its properties and to carry on
its business as presently conducted, and neither Sea Containers nor any
subsidiary has received any notice of proceedings relating to revocation
or modification of any such licenses, permits, certificates, consents,
orders, approvals or authorizations.
(v) Except as disclosed in the Registration Statements or except
as would not individually or in the aggregate have a Material Adverse
Effect, (A) Sea Containers and its subsidiaries are in compliance with
all applicable Environmental Laws, (B) Sea Containers and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are in compliance with their
requirements, (C) there are no pending or threatened Environmental Claims
against Sea Containers or any of its subsidiaries, and (D) there are no
circumstances with respect to any property or operations of Sea
Containers or its subsidiaries that could reasonably be anticipated to
form the basis of an Environmental Claim against Sea Containers or its
subsidiaries. "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute,
law, rule, regulation, ordinance, code, policy or rule of common law and
any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety or any chemical, material or substance,
exposure to which is
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prohibited, limited or regulated by any governmental authority, and
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law.
(w) Sea Containers and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with management's
general or specific authorization, (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with U.S. generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization and (D)
the recorded accountability for assets is compared in all material
respects with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(x) Sea Containers has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 under the
1934 Act), which (i) are designed to ensure that material information
relating to Sea Containers, including its consolidated subsidiaries, is
made known to Sea Containers' principal executive officer and its
principal financial officer by others within those entities, particularly
during the periods in which the periodic reports required under the 1934
Act are being prepared, (ii) have been evaluated for effectiveness as of
the end of the period covered by Sea Containers' most recent annual or
quarterly report filed with the Commission, and (iii) are effective in
all material respects to perform the functions for which they were
established. Based on the evaluation of Sea Containers' disclosure
controls and procedures described above, Sea Containers is not aware of
(a) any significant deficiency in the design or operation of internal
controls which could adversely affect Sea Containers' ability to record,
process, summarize and report financial data or any material weaknesses
in internal controls or (b) any fraud, whether or not material, that
involves management or other employees who have a significant role in Sea
Containers' internal controls. Since the most recent evaluation of Sea
Containers' disclosure controls and procedures described above, there
have been no significant changes in internal controls or in other factors
that could significantly affect internal controls.
(y) Sea Containers and its officers and directors are in
compliance with applicable effective provisions of the Xxxxxxxx-Xxxxx Act
of 2002 and the rules and regulations promulgated in connection therewith
(the "Xxxxxxxx-Xxxxx Act"), and are actively taking steps to ensure that
they will be in compliance with other applicable provisions of the
Xxxxxxxx-Xxxxx Act upon their effectiveness.
(z) Neither Sea Containers nor any affiliate of Sea Containers has
taken, nor will Sea Containers or any affiliate take, directly or
indirectly, any action which is designed to or which has constituted or
which would be expected to cause or result in stabilization or
manipulation of the price of any security of Sea Containers to facilitate
the sale or resale of the Shares.
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(aa) Sea Containers and its subsidiaries have filed all necessary
U.S. federal, state and foreign income tax returns and have paid all
taxes shown by such returns which are due and payable, and any related or
similar assessment, fine or penalty levied against any of them, except in
each case as may be being contested in good faith and by appropriate
proceedings. Sea Containers and its subsidiaries have made adequate
charges, accruals and reserves in the applicable financial statements
described in the Registration Statements and Prospectus in respect of all
U.S. federal, state and foreign income taxes for all periods as to which
the tax liability of Sea Containers or any of its subsidiaries has not
been finally determined.
SECTION 2. Authorization for Offers; Sales as Agent; Purchases as
Principal; Suspensions of Offers.
(a) Sales as Agent. On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth, you
agree, as agent for Sea Containers, to use your best efforts to sell the Shares
upon the terms and conditions set forth in the Prospectus and hereinafter
provided. Sea Containers may on any business day deliver notice to you by
telephonic communication and confirmed by any standard form of written
telecommunication (the "Authorization") confirming the minimum price at which
you may sell the Shares and the limitation, if any, on the number of Shares
which may be sold at such price, and the terms of such Authorization shall
remain in effect until receipt by you of a subsequent Authorization which
modifies the terms of the previously delivered Authorization. The terms
contained in the most recently delivered Authorization may be modified
subsequent to the delivery thereof by telephonic or other form of communication,
provided that you shall not be bound by, or subject to any liability with
respect to, such modification until a reasonable time after receipt by you from
Sea Containers of a subsequent Authorization containing such modifications.
Sea Containers reserves the right, in its sole discretion, to suspend
sales of the Shares commencing at any time for any period of time or
permanently. Upon receipt of instructions from Sea Containers, you will
forthwith suspend such sales for Sea Containers until such time as Sea
Containers has advised you that sales may be resumed.
Sea Containers agrees to pay you a commission in respect of agency
transactions in the amount of ten cents per Share.
(b) Purchases as Principal. Each sale of Shares to you as principal
other than a block transaction will be made in accordance with the terms of this
Agreement and a separate agreement to be entered into between you and Sea
Containers which will provide for the sale of such Shares to, and the purchase
and reoffering thereof by, you. Each such separate agreement (which will be
substantially in the form of Exhibit A hereto and which may take the form of an
exchange of any standard form of written telecommunication between you and Sea
Containers) is herein referred to as a "Terms Agreement." Your commitment to
purchase Shares pursuant to any Terms Agreement will be deemed to have been made
on the basis of the representations and warranties of Sea Containers herein
contained and will be subject to the terms and conditions herein set forth. Each
Terms Agreement will specify the number of Shares to be purchased by you
pursuant thereto, the price to be paid to Sea Containers for such Shares, the
initial public
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offering price, if any, at which the Shares are proposed to be reoffered, and
the date, time and place of delivery of and payment for such Shares (the
"Settlement Date"). Such Terms Agreement will also specify any requirements for
opinions of counsel and letters from Deloitte & Touche LLP pursuant to Section 5
hereof.
(c) Manner of Sales.
(1) The sale of the Shares through you as agent or by you as
principal may be effected from time to time by means of (A) ordinary
brokers' transactions and transactions in which the broker-dealer
solicits purchasers, (B) block transactions (which may involve crosses)
in accordance with the rules of any exchange on which the Class A Shares
may be admitted to trading (an "Exchange"), in which you may attempt to
sell Shares as agent but may purchase and resell all or a portion of the
block as principal, (C) "fixed price offerings" off the floor of the
Exchanges, or "exchange distributions" and "special offerings" of Shares
under the rules of the Exchanges, (D) short sales, (E) a combination of
any such methods of sale, in each case on the Exchanges, in the
over-the-counter market, through negotiated transactions or otherwise, or
(F) any other method permitted pursuant to applicable law. Such
transactions may be effected by you at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, at
negotiated prices or at fixed prices. You may effect such transactions by
selling Shares to or through other broker-dealers, and such other
broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from you and/or commissions from
the purchasers of Shares for whom they may act as agent (which discounts,
concessions or commissions will not exceed those customary in the types
of transactions involved). In connection with the sale of the Shares, you
may also receive commissions from purchasers of Shares for whom you may
act as agent.
(2) Sea Containers acknowledges that nothing in this Agreement
will prohibit you from (A) acting as broker for the sale of shares of Sea
Containers by customers other than Sea Containers, (B) soliciting the
sale of shares of Sea Containers through you as broker for the seller,
soliciting the sale of shares of Sea Containers to you as principal and
soliciting offers to buy shares, (C) purchasing shares of Sea Containers
otherwise than pursuant to this Agreement, and (D) offering and selling
as principal for your own account shares of Sea Containers which you have
purchased otherwise than pursuant to this Agreement.
(d) Procedures. Administrative procedures respecting the sale of Shares
will be agreed upon from time to time by you and Sea Containers, and as of the
date of this Agreement, the administrative procedures relating to transactions
in your capacity as agent pursuant to paragraph 2(a) hereof are set forth in
Exhibit B hereto (the "Procedures"). You and Sea Containers agree to perform the
respective duties and obligations specifically provided to be performed by you
and Sea Containers herein and in the Procedures.
(e) Delivery. The documents required to be delivered by Sections 5 and 6
hereof will be delivered at the office of your counsel, Shearman & Sterling LLP
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the dates provided in
Sections 5 and 6, or at such other places or times as you and Sea Containers may
agree upon.
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SECTION 3. Covenants of the Sea Containers. Sea Containers covenants
with you as follows:
(a) Sea Containers will advise you immediately and confirm such advice
in writing:
(i) of Sea Containers' intention to amend or supplement the
Registration Statements or the Prospectus (otherwise than by the filing
of periodic reports pursuant to Section 13(a) of the 1934 Act), and Sea
Containers will furnish you with copies of any such amendment or
supplement a reasonable time in advance of filing, and will not file
such amendment or supplement without your consent, which consent shall
not be unreasonably withheld;
(ii) of the filing of any document incorporated by reference in
the Registration Statements, will furnish you with copies of any such
document concurrently with such filing and promptly thereafter will make
available to you for consultation appropriate personnel of Sea
Containers so as to permit you to conduct due diligence with respect to
such filing;
(iii) of the receipt of any comments from the Commission with
respect to the Registration Statements or the Prospectus or the request
by the Commission for any amendment to the Registration Statements or
any supplement to the Prospectus or for additional information relating
to the Registration Statements or the Prospectus or any document
incorporated by reference into the Prospectus;
(iv) of the filing or effectiveness of any amendment or
supplement to Registration Statement No. 333-101574 or the Prospectus;
and
(v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statements or of the
suspension of the qualification of the Shares for offering or sale in
any jurisdiction or the institution or threat of any proceeding for any
such purposes. Sea Containers will use its best efforts to prevent the
issuance of any such order or of any order suspending such qualification
and to obtain as soon as possible its lifting at the earliest possible
moment, if issued.
(b) If at any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Shares, any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of counsel for Sea Containers, to amend or supplement the Prospectus so that it
will not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of such
counsel at any such time to amend or supplement the Registration Statements or
the Prospectus in order to comply with the requirements of the 1933 Act or the
rules of the Commission, Sea Containers will give you immediate notice to cease
the sale of the Shares in your capacity as agent and to cease sales of any
Shares you may then own as principal, and Sea Containers will, subject to
subsection 3(a)(i), if applicable, promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant to
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the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statements comply with
such requirements.
(c) Promptly after Sea Containers releases to the general public
quarterly financial statement information of OEH, interim financial statement
information with respect to any unanticipated charge or gain or, upon your
request, any other interim financial statement information related to Sea
Containers with respect to each of the first three quarters of any fiscal year,
or preliminary financial statement information with respect to any fiscal year,
Sea Containers will furnish to you copies of such documents and will file with
the Commission a Form 8-K under the 1934 Act that includes (or Sea Containers
shall, subject to subsection 3(a)(i), if applicable, otherwise cause the
Registration Statements to be amended and the Prospectus to be supplemented to
include or incorporate by reference) such financial statement information and,
if and to the extent relevant, corresponding information for the comparable
period of the preceding fiscal year; provided that if on the date of such
release, and for so long thereafter as, (i) all sales of Shares previously made
pursuant to paragraph 2(a) of this Agreement have settled, (ii) you are not
obligated to purchase Shares under a Terms Agreement, and (iii) you are not
offering for sale any Shares which you are holding as principal and which you
acquired under a Terms Agreement, then Sea Containers will not be obligated to
file such a Form 8-K or otherwise amend or supplement the Prospectus.
(d) Promptly after Sea Containers releases to the general public audited
financial information of Sea Containers for any fiscal year, Sea Containers will
furnish to you copies of such documents and will, subject to subsection 3(a)(i),
if applicable, cause the Registration Statements to be amended and the
Prospectus to be supplemented, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto; provided that if on the date of such release,
and for so long thereafter as, (i) all sales of Shares previously made pursuant
to paragraph 2(a) of this Agreement have settled, (ii) you are not obligated to
purchase Shares under a Terms Agreement, and (iii) you are not offering for sale
any Shares which you are holding as principal and which you acquired under a
Terms Agreement, then Sea Containers will not be obligated so to amend or
supplement the Prospectus.
(e) Sea Containers, during the period when the Prospectus is required to
be delivered under the 1933 Act in connection with the offering or sale of the
Shares, (i) will file promptly all documents required to be filed by it with the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act, and (ii)
will obtain the written consent of Sea Containers' independent accountants for
the incorporation by reference in the Registration Statements of their reports
on the audited financial statements contained in Sea Containers' annual reports
on Form 10-K under the 1934 Act.
(f) Sea Containers will furnish to you such copies of the Prospectus and
all amendments and supplements thereto, in each case as soon as available and in
such quantities as you may reasonably request.
11
(g) Sea Containers will make generally available to its securityholders
as soon as practicable earnings statements (in form complying with the
provisions of Rule 158 under the 0000 Xxx) with respect to each sale of Shares
under a Terms Agreement.
(h) Until this Agreement is terminated, Sea Containers will furnish to
you, as soon as available, (i) a copy of each of its annual reports to
shareholders, (ii) a copy of each other document mailed by Sea Containers to its
shareholders, (iii) each press release or announcement issued by Sea Containers,
and (iv) from time to time, such other information concerning Sea Containers and
its subsidiaries as you may reasonably request.
(i) Sea Containers will cooperate with you in qualifying the Shares,
including the Rights associated therewith, for offering and sale under the laws
of such jurisdictions as you shall reasonably designate and will cooperate with
you in continuing such qualifications in effect so long as required for the
distribution by you of such Shares and Rights; provided that in connection with
such qualification, Sea Containers will not be required to qualify as a foreign
corporation or a securities dealer in any jurisdiction, or to consent to the
service of process under the laws of any jurisdiction (except service of process
with respect to the offering and sale of the Shares) or to take any action which
would or could subject Sea Containers to taxation in any jurisdiction where it
is not now so subject. Sea Containers will execute such statements and reports
you prepare as may be required by the laws of each jurisdiction in which the
Shares and Rights are being qualified. Sea Containers will also supply you with
such information for determining the legality of the Shares and Rights for
investment under the laws of such jurisdictions as you may reasonably request.
(j) Between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, Sea Containers will not, without your prior
consent, offer or sell, or enter into any agreement to sell, any Class A Shares
or securities convertible into or exchangeable for Class A Shares (other than
the Shares and Rights which are to be sold pursuant to such Terms Agreement),
except as may otherwise be provided in any such Terms Agreement and except for
(i) Class A Shares issuable upon the exercise of employee stock options granted
by Sea Containers in the normal course of its business, and (ii) Class A Shares
issuable upon conversion of outstanding Class B Shares and any outstanding
preferred shares.
SECTION 4. Payment of Expenses. Sea Containers will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statements and all amendments
thereto, (ii) the preparation, issuance and delivery of the certificates
evidencing the Shares, (iii) the fees and disbursements of Sea Containers'
accountants and counsel, (iv) the qualification of the Shares under securities
laws in accordance with the provisions of Section 3(i), including filing fees
and the reasonable fees and disbursements of your counsel in connection with
such qualification and in connection with the preparation of any blue sky
survey, (v) any fees, taxes and charges imposed by Bermuda on the sale of the
Shares, (vii) the printing and delivery to you of copies of the Registration
Statements and all amendments thereto, and copies of the Prospectus and any
amendments or supplements thereto, (viii) the reproduction and delivery of
copies of the blue sky survey, and (ix) the fees and expenses, if any, incurred
with respect to any filing by you with the National Association of Securities
Dealers, Inc. in connection with the offer and sale of the Shares.
12
SECTION 5. Conditions of Obligations. Your obligations to sell the
Shares as agent of Sea Containers and your obligations to purchase Shares
pursuant to any Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of Sea Containers herein on the most
recent Effective Date, any applicable Representation Date and any applicable
Settlement Date, to the performance and observance by Sea Containers of all
covenants and agreements herein contained on its part to be performed and
observed, and to the following additional conditions precedent:
(a) The Registration Statements are effective under the 1933 Act, and no
stop order suspending the effectiveness of the Registration Statements or the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction shall have been issued and not lifted, and no proceedings for such
purposes shall have been instituted and continue to be pending, or, to your
knowledge or the knowledge of Sea Containers, shall be threatened, and all
requests for additional information by the Commission shall have been complied
with to your reasonable satisfaction.
(b) At each Settlement Date with respect to any Terms Agreement, if
called for by such Terms Agreement, you shall have received:
(1) The opinion, dated as of such Settlement Date, of Xxxxxx
Xxxxxxx & Xxxxxxx LLP, United States counsel to Sea Containers, in form
reasonably satisfactory to you and your counsel, to the effect that:
(i) To such counsel's knowledge, except as described in the
Prospectus, there are no legal or governmental proceedings pending
or threatened in the United States to which Sea Containers or any
of its subsidiaries is a party or to which any of its or their
properties is subject and which are required to be disclosed in
the Registration Statements or the Prospectus;
(ii) The execution and delivery by Sea Containers of this
Agreement and the Terms Agreement, the performance by Sea
Containers of, or its compliance with, its obligations under this
Agreement and the Terms Agreement, and the consummation of the
transactions contemplated herein and in the Registration
Statements, including the sale and delivery by Sea Containers of
the Shares, the Rights and the Preferred Shares issuable upon the
exercise of such Rights (assuming such Preferred Shares were
issued on the date of such opinion), do not and will not result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of Sea Containers under, (A) any indenture, mortgage, deed
of trust, loan agreement or any other agreement or instrument
which is described or referred to in the Prospectus, or is filed
or incorporated by reference as an exhibit to the Registration
Statements and to which Sea Containers or any of its subsidiaries
is a party or by which they are bound or to which any of their
property or assets is subject, or (B) any United States federal or
New York statute, rule or regulation or any decree, judgment or
order, known to such counsel, of any United States federal or New
York court or governmental agency or body specifically applicable
to Sea Containers or any of its subsidiaries
13
or any of their properties, except for such breaches, violations,
defaults, liens, charges or encumbrances that would not have a
Material Adverse Effect;
(iii) No consent, approval, authorization or order of, or
registration or qualification or filing of or with, any United
States federal or New York governmental agency or Bermuda
governmental body or, to the best of such counsel's knowledge, any
United States federal or New York court is required for the
performance by Sea Containers of its obligations under this
Agreement and the Terms Agreement, or the consummation of the
transactions contemplated by this Agreement in connection with the
valid sale and delivery by Sea Containers of the Shares, the
Rights associated therewith and the Preferred Shares issuable upon
the exercise of such Rights, except, in the case of the Shares and
the Rights associated therewith, (a) such as have been obtained or
made under the 1933 Act, and (b) such as may be required under
state securities laws in connection with the purchase and
distribution of the Shares and Rights by you, and except in the
case of the Preferred Shares issuable upon the exercise of the
Rights associated with the Shares, (a) such as may be required
under the 1933 Act or the 1934 Act, and (b) such as may be
required under state securities laws in connection with the
issuance of the Preferred Shares upon the exercise of such Rights;
(iv) The Registration Statements are effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statements
is in effect and no proceedings for that purpose have been
initiated or are pending or threatened;
(v) (I) The Registration Statements, the Prospectus and
each amendment or supplement thereto comply as to form in all
material respects with the requirements of the 1933 Act and the
rules of the Commission thereunder; (II) each document
incorporated by reference in the Registration Statements and
Prospectus, at the time such document was initially filed with the
Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the rules of the Commission
thereunder; (III) the descriptions in the Registration Statements
and the Prospectus of contracts and other documents, of United
States federal and New York statutes, and of legal and
governmental proceedings in the United States, are accurate
summaries in all material respects and fairly present the
information required to be given;
(vi) such counsel does not know of any contracts or
documents required to be described in the Registration Statements
or Prospectus, or required to be filed as exhibits to the
Registration Statements or incorporated by reference in the
Registration Statements or Prospectus, which are not described or
filed or incorporated by reference as required, it being
understood that such counsel need express no opinion as to the
financial statements and related notes and schedule or schedules
or other financial information and statistical data in the
Registration Statements or the Prospectus;
14
(vii) The Class A Shares, (including the Shares) and the
Rights associated therewith are listed on the New York Stock
Exchange, Inc. and the Pacific Exchange;
(viii) Sea Containers is eligible to use Form S-3 for the
registration under the 1933 Act of the offer and sale of the
Shares as described in the Prospectus, and the Registration
Statements meet the requirements set forth in Rule 415(a)(1)(x)
under the 1933 Act;
(ix) Sea Containers is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended;
(x) Orient-Express Hotels Inc. has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of the State of Delaware; and
(xi) Sea Containers' submission (pursuant to Section 16 of
this Agreement) to the personal jurisdiction of the courts of the
State of New York in the County of New York or the United States
District Court for the Southern District of New York with respect
to any action or proceeding arising out of, or based on, this
Agreement is valid and enforceable against Sea Containers, and Sea
Containers' appointment of Sea Containers America Inc. and
Corporation Service Company as the designees, appointees and
agents upon whom process may be served in any such action or
proceeding is also valid and enforceable against Sea Containers.
The enforceability of such submission and appointment is subject
to, and may be limited by, (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization, fraudulent
conveyance or other similar laws relating to or affecting the
enforcement of the rights of creditors, (ii) general principles of
equity, and (iii) the discretion of United States federal or New
York State courts with respect to venue, as provided in 28 U.S.C.
ss. 1404(a) and New York CPLR ss. 510, respectively.
Xxxxxx Xxxxxxx & Xxxxxxx LLP may limit such opinion to the laws of
the United States of America and the State of New York and the General
Corporation Law of Delaware and may rely as to factual matters on
certificates obtained from officers of Sea Containers and public
officials. The opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP will also state
that, while such counsel have not made any independent investigation of,
are not passing upon and do not assume responsibility for, the accuracy
or completeness of the statements contained in the Registration
Statements or the Prospectus (other than as indicated in clause (III) of
paragraph (v) above), on the basis of discussions regarding the business
and affairs of Sea Containers and such counsel's familiarity with certain
matters relating to such business and affairs as a result of having
served as United States counsel for Sea Containers in connection with
certain previous transactions, nothing has come to their attention that
would lead them to believe that the Registration Statements (other than
the financial statements and notes and other financial and statistical
data included in the Registration Statements and Prospectus, as to which
such counsel expresses no view), at
15
the most recent Effective Date (or, if, after such Effective Date, Sea
Containers files any documents pursuant to Section 13(a), 13(c) or 15(d)
of the 1934 Act which are incorporated by reference into the Registration
Statements, at the time of the most recent such filing), contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (other than the financial
statements and notes and other financial and statistical data included in
the Registration Statements and Prospectus, as to which such counsel
expresses no view), on the most recent Effective Date, or on the
appropriate Settlement Date or Representation Date, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(2) The opinion, dated as of such Settlement Date, of Xxxxxxx
Xxxxxxxx & Xxxxx, Bermuda counsel to Sea Containers, in form reasonably
satisfactory to you and your counsel, to the effect that:
(i) Each of Sea Containers, Orient-Express Hotels Ltd.,
Sea Containers SPC Ltd.and Contender 2 Ltd. is an exempted
company duly incorporated with limited liability, validly
existing and in good standing under the laws of Bermuda;
(ii) Sea Containers has all requisite corporate power and
authority under its Constitutional Documents (as defined) to own,
lease, manage and operate its properties and to conduct its
business as described in the Registration Statements and the
Prospectus and to enter into and perform its obligations under
this Agreement [and the Terms Agreement];
(iii) This Agreement [and the Terms Agreement] have been
duly authorized, executed and delivered by Sea Containers and
constitute valid and binding obligations of Sea Containers
enforceable against Sea Containers in accordance with their
terms;
(iv) The issued and outstanding Class A Shares have been
duly authorized and validly issued and are fully paid and
non-assessable;
(v) None of the outstanding Class A Shares were issued in
violation of any pre-emptive or other similar rights of any
security holder of Sea Containers pursuant to the Constitutional
Documents (as defined);
(vi) The Shares have been duly authorized for sale and
delivery to you pursuant to the terms of this Agreement and the
Terms Agreement, and when sold and delivered by Sea Containers
pursuant to the terms of this Agreement and the Terms Agreement,
against payment of the consideration set forth in the Terms
Agreement, will be validly issued, fully paid and non-assessable,
and no holder of the Shares is or will be subject to personal
liability with respect to the debts or obligations of Sea
Containers solely by reason of being such a holder.
16
(vii) The Rights Agreement has been duly authorized,
executed and delivered by Sea Containers, the Rights have been
duly authorized by Sea Containers, the Rights attached to the
Shares are validly issued, and the Preferred Shares issuable upon
the exercise of the Rights have been duly authorized by Sea
Containers and validly reserved for issuance upon the exercise of
the Rights and, when issued upon such exercise in accordance with
the terms of the Rights Agreement, will be validly issued, fully
paid and non-assessable;
(viii) Based solely on the results of the Litigation Search
(as defined), there is not pending any action, suit, proceeding,
inquiry or investigation in Bermuda, to which Sea Containers,
Orient-Express Hotels Ltd., Sea Containers SPC Ltd.or Contender 2
Ltd. is a party or to which the property of Sea Containers,
Orient-Express Hotels Ltd., Sea Containers SPC Ltd. or Contender
2 Ltd. is subject, before or brought by any court or governmental
agency or body in Bermuda, which could reasonably be expected to
result in a Material Adverse Effect, or which could reasonably be
expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions
contemplated by this Agreement or the performance by Sea
Containers of its obligations hereunder.
(ix) The information in the Prospectus under the captions
"Risk Factors -- Other Risk Factors -- We cannot assure you that
a judgment of a United States court for liabilities under U.S.
securities laws would be enforceable in Bermuda, or that an
original action can be brought in Bermuda against Sea Containers
for liabilities under U.S. securities laws," "Risk Factors --
Other Risks -- Sea Containers' directors and officers may control
the outcome of most matters submitted to a vote and of its
shareholders," "Risk Factors -- Other Risks -- Provisions in Sea
Containers' charter documents may discourage potential
acquisitions of Sea Containers, even those which the holders of a
majority of its class A common shares might favor," and
"Description of Common Shares," to the extent such information
constitutes matters of Bermuda law, is accurate in all material
respects.
(x) The execution and delivery by Sea Containers of this
Agreement [and the Terms Agreement], the performance by Sea
Containers of, or its compliance with, its obligations under this
Agreement [and the Terms Agreement], and the consummation of the
transactions contemplated herein and the Terms Agreement or in
the Registration Statements, including the sale and delivery by
Sea Containers of the Shares, the Rights and the Preferred Shares
issuable upon the exercise of such Rights (assuming such
Preferred Shares were issued on the date of such opinion), do not
and will not result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of Sea Containers under (A) any indenture,
mortgage, deed of trust, loan agreement or any other agreement or
instrument which is described or referred to in the Prospectus,
or is filed or incorporated by reference as an exhibit to the
Registration Statements, and to which Sea Containers,
Orient-Express Hotels Ltd., Sea Containers SPC Ltd.or Contender 2
Ltd. is a party or by which they are bound or to which any of
their property or assets is subject, except for such breaches,
violations, defaults, liens, charges or encumbrances, if any,
that would not have a Material Adverse Effect),
17
(B) any requirement of any law or regulation of Bermuda, and (C)
the Constitutional Documents;
(xi) No consent, approval, authorization or order of, or
registration or qualification or filing of or with, any Bermuda
governmental agency or body or, to the best of such counsel's
knowledge, any Bermuda court is required for the performance by
Sea Containers of its obligations under this Agreement and the
Terms Agreement, including the sale and delivery by Sea
Containers of the Shares, the Rights associated therewith and the
Preferred Shares issuable upon the exercise of such Rights,
except such as have been obtained from the Bermuda Monetary
Authority; and
(xii) The choice of the laws of the State of New York as
the proper law to govern this Agreement and the Terms Agreement
is a valid choice of law under Bermuda law, and such choice of
law would be recognized, upheld and applied by the courts of
Bermuda as the proper law of this Agreement and the Terms
Agreement in proceedings brought before them in relation to this
Agreement and the Terms Agreement, provided that (1) the point is
specifically pleaded; (2) such choice of law is valid and binding
under the laws of the state of New York; and (3) recognition
would not be contrary to public policy as that term is understood
under Bermuda law.
(xiii) There are no Bermuda capital, stamp or other
issuance taxes or duties payable in Bermuda in connection with
the issuance, sale and delivery of the Shares to you, or the
consummation of any of the other transactions contemplated in
this Agreement [and the Terms Agreement].
(xiv) The irrevocable and unconditional submission by Sea
Containers to the jurisdiction of any state or federal court in
New York under this Agreement is not contrary to Bermuda law and
would be recognised by the courts of Bermuda as a legal, valid
and binding submission, provided that such submission is accepted
by such courts and is legal, valid and binding under the laws of
the State of New York.
(xv) A final and conclusive judgment of a competent
foreign court against Sea Containers based on this Agreement, and
the transactions contemplated thereby (other than a court of
jurisdiction to which the Judgment (Reciprocal Enforcement) Xxx
0000 applies, and it does not apply to the courts of New York)
under which a sum of money is payable (not being a sum payable in
respect of taxes or other charges of a like nature, in respect of
a fine or other penalty, or in respect of multiple damages as
defined in The Protection of Trading Interests Act 1981) may be
the subject of enforcement proceedings in the Supreme Court of
Bermuda under the common law doctrine of obligation by action on
the debt evidenced by the judgment of such competent foreign
court. A final opinion as to the availability of this remedy
should be sought when the facts surrounding the foreign court's
judgment are known, but, on general principles, one would expect
such proceedings to be successful provided that:
18
(a) the court which gave the judgment was competent
to hear the action in accordance with private
international law principles as applied in Bermuda; and
(b) the judgment is not contrary to public policy
in Bermuda, has not been obtained by fraud or in
proceedings contrary to natural justice and is not based
on an error in Bermuda law.
Enforcement of such a judgment against the assets in Bermuda may
involve the conversion of the judgment debt into Bermuda dollars,
but the Bermuda Monetary Authority's policy is to give the
consents necessary to enable recovery in the currency of the
obligation.
Such counsel has no reason to believe that as of the date of the opinion the
enforcement of a foreign judgment relating to the indemnification and
contribution provisions set forth in Sections 7 and 8 of this Agreement would
contravene Bermuda public policy or laws.
(3) The opinion, dated as of such Settlement Date, of Xxxxx X.
Xxxxxxxxxxxx, Vice President, General Counsel and Secretary of Sea
Containers, in form reasonably satisfactory to you and your counsel, to
the effect that:
(i) Great North Eastern Railway Ltd., Sea Containers U.K.
Ltd. and Sea Containers British Isles Ltd. are companies duly
incorporated, validly existing and in good standing under the
laws of England.
(ii) The issued shares of capital stock of each
significant subsidiary of Sea Containers (as defined in
Regulation S-X of the Securities and Exchange Commission) have
been duly authorized and validly issued, are fully paid and
non-assessable and except as otherwise disclosed in the
Prospectus, are owned beneficially by Sea Containers, either
directly or through wholly-owned subsidiaries of Sea Containers,
free and clear, to the best of such counsel's knowledge, of any
pledge, lien, encumbrance, security interest, restriction on
voting or transfer, preemptive rights or other defect or claim of
any third party, except that (a) the shares of Silja Oyj Abp and
the preference shares of Sea Containers SPC Ltd. are pledged as
security for bank loans to Sea Containers and its subsidiaries,
(b) the class A shares of Sea Containers SPC Ltd. have limited
voting rights and are not owned by Sea Containers or any of its
subsidiaries, and (c) the shares of Great North Eastern Railway
Ltd. are subject to restrictions on transfer imposed by the U.K.
government.
(iii) The execution and delivery by Sea Containers of this
Agreement, the performance by Sea Containers of, or its
compliance with, its obligations under this Agreement and the
consummation of the transactions contemplated in this Agreement
or in the Registration Statements, including the offering,
issuance or sale by Sea Containers of the Shares, the Rights and
the Preferred Shares issuable upon the exercise of such Rights
(assuming such Preferred Shares were issued on the date of such
opinion) do not and will not result in a breach or
19
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of Sea
Containers or any of its subsidiaries under, (A) any indenture,
mortgage, deed of trust, loan agreement or any other agreement or
instrument which is described or referred to in the Prospectus,
or is filed or incorporated by reference as an exhibit to
Registration Statement No. 333-101574 and to which Sea Containers
or any of its subsidiaries is a party or by which they are bound
or to which any of their property or assets is subject, or (B)
any provision of the Memorandum of Association, Certificate of
Incorporation, By-laws or other constituent documents of Sea
Containers or, to the best of such counsel's knowledge, any
significant subsidiary of Sea Containers or (C) any applicable
law, statute, rule, regulation, judgment, order, writ or decree,
known to such counsel, of any government, government
instrumentality or court in the United Kingdom having
jurisdiction over Sea Containers or any of its subsidiaries or
any of their assets, properties or operations; and
(iv) To the best of such counsel's knowledge, there are no
legal or governmental proceedings in England pending or
threatened to which Sea Containers or any of its subsidiaries is
a party or to which any of its or their property is subject,
except as otherwise disclosed in the Prospectus and except for
such proceedings that, individually or in the aggregate, would
not have a Material Adverse Effect.
Such counsel may limit such opinion to the laws of the United Kingdom. The
opinion of such counsel will also state as follows:
"In my capacity as the Vice President, General Counsel of Secretary of
Sea Containers, I participated in the preparation of the Registration
Statements and the Prospectus. In the course of those preparations, I
have participated in conferences with other officers and other
representatives of Sea Containers, representatives of the independent
public accountants for Sea Containers, counsel to Sea Containers and
your representatives, and I am familiar with the statistical data
contained in the Registration Statements and the Prospectus. Although I
have not independently verified the accuracy, completeness or fairness
of that statistical data, I advise you that no facts have come to my
attention that cause me to believe (i) that the Registration Statements,
at the time they became effective, included any statistical data which
constituted or contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements in the Registration Statements not
misleading, or (ii) that the Prospectus, at the time it was issued and
on the date hereof, included or includes any statistical data which
constituted or contained, or constitutes or contains, an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements in the Prospectus, in the
light of the circumstances under which they were made, not misleading.
Nothing set forth herein is intended to express any view with respect to
the financial statements of Sea Containers, or any related notes or
schedules."
20
(4) The opinion of your counsel to the effect that the opinions
delivered pursuant to subsections 5(b)(1), 5(b)(2) and 5(b)(3) appear on
their face to be appropriately responsive to the requirements of this
Agreement except, specifying the same, to the extent waived by you, and
with respect to the Shares, this Agreement, the Registration Statement,
the Prospectus, the documents incorporated by reference and such other
related matters as you may require. In giving such opinion, such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the laws of the State of New York and the federal laws of the
United States, upon the opinions of counsel satisfactory to you,
including the opinion of Xxxxxxx Xxxxxxxx & Xxxxx as to matters of
Bermuda law. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of Sea Containers and certificates
of public officials.
(c) On each Settlement Date there will not have been, since the date of
the applicable Terms Agreement, and on each Effective Date, there will not have
been since the respective dates as of which information is given in the
Registration Statements and the Prospectus, any Material Adverse Change, whether
or not arising in the ordinary course of business, and on each Effective Date,
and on each Settlement Date if called for by the applicable Terms Agreement, you
shall have received a certificate of Sea Containers' president or any vice
president, dated as of the Effective Date or such Settlement Date, to the effect
that (i) there has been no such Material Adverse Change, (ii) the other
representations and warranties of Sea Containers contained in Section 1 of this
Agreement are true and correct with the same force and effect as though
expressly made at and as of the time of such certificate, (iii) Sea Containers
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement and any applicable Terms Agreement
at or prior to the date of such certificate, and (iv) no stop order suspending
the effectiveness of the Registration Statements or the qualification of the
Shares for offer or sale in any jurisdiction has been issued, and no proceedings
for that propose have been initiated or are pending or, to such person's
knowledge, are threatened.
(d) On the date of any Terms Agreement, you will have received from
Deloitte & Touche LLP a letter, dated as of such date, in form and substance
reasonably satisfactory to you, to the effect that:
(1) They are independent public accountants with respect to Sea
Containers and its subsidiaries within the meaning of the 1933 Act and
the rules of the Commission and that the response, if any, to Item 10 of
Form S-3 is "none" with respect to Deloitte & Touche LLP;
(2) In their opinion, the consolidated financial statements and
related financial statement schedules audited by them and included in or
incorporated by reference into the Registration Statements and
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1934 Act and the
rules of the Commission thereunder, as applicable;
(3) On the basis of limited procedures, not constituting an audit
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
21
available interim financial statements of Sea Containers and its
subsidiaries, inspection of the minute books of Sea Containers,
inquiries of officials of Sea Containers 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:
(i) as of a specified date not more than five days prior
to the date of delivery of such letter, there were any changes in
the capital shares, long-term debt or shareholders' equity, or
any decrease in total assets, in each case as compared with
amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter;
(ii) for the period from the date of the latest balance
sheet included or incorporated by reference into the Prospectus
to the specified date referred to in clause (i) above, there were
any material decreases in consolidated revenues, earnings from
operations before net financing costs or in the total or per
share amounts of net income of Sea Containers and its
subsidiaries, in each case as compared with the corresponding
period of the preceding year, except in each case for decreases
which the Prospectus discloses have occurred or may occur or
which are described in such letter;
(iii) the unaudited financial statements, if any, included
or incorporated in the Registration Statements and the Prospectus
do not comply in form in all material respects with the
applicable accounting requirements of the 1933 Act or the 1934
Act, as the case may be, and the rules of the Commission
thereunder, or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the Registration Statements and the Prospectus;
and
(iv) the unaudited financial information, if any, included
or incorporated in the Registration Statements and the Prospectus
does not agree with the amounts set forth in the unaudited
consolidated financial statements from which it was derived or
was not determined on a basis substantially consistent with that
of the audited financial statements included or incorporated in
the Registration Statements and the Prospectus; and
(4) Certain information set forth in dollar amounts (or ratios,
per share amounts or percentages derived from such dollar amounts)
specified by you contained in the Registration Statements, in each case
to the extent that such dollar amounts, ratios, per share amounts and
percentages have been obtained from accounting records which are subject
to the internal controls of Sea Containers' accounting system or have
been derived directly from such accounting records by analysis or
computation, is in agreement with such records or computations made
therefrom.
22
(e) On each Settlement Date, if called for by the applicable Terms
Agreement, you will have received from Deloitte & Touche LLP a letter, dated as
of such Settlement Date, to the effect that they reaffirm the statements made in
the letter furnished pursuant to paragraph (d) of this Section 5, except that
the specified date referred to will be a date not more than five days prior to
such Settlement Date and, to the extent that any additional documents are
incorporated by reference in the Registration Statements, such letter will refer
to the most recent consolidated financial statements, amounts, percentages and
financial information contained therein.
(f) On the date of this Agreement and on each Settlement Date, your
counsel shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the sale of the
Shares as herein contemplated and related proceedings, or in order to evidence
the accuracy and completeness of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by Sea Containers in connection with the sale of the Shares as herein
contemplated shall be reasonably satisfactory in form and substance to you and
your counsel.
(g) You shall have received evidence reasonably satisfactory to you that
the appointment of Corporation Service Company, as agent for service of process
for Sea Containers pursuant to Section 16 hereof has been accepted by such
agent.
(h) In the event that Sea Containers grants you in a Terms Agreement an
option to purchase Shares to cover overallotments ("Option Shares") and you
exercise such option to purchase all or any portion of the Option Shares, the
representations and warranties of Sea Containers contained herein and the
statements in such Terms Agreement or any certificates furnished by Sea
Containers hereunder will be true and correct as of each Settlement Date for
such Option Shares ("Option Settlement Date") and, at the relevant Option
Settlement Date, you will have received:
(1) a certificate, dated such Option Settlement Date, of
the president or any vice president of Sea Containers confirming
that the certificate delivered at the Settlement Date pursuant to
paragraph 5(c) hereof remains true and correct as of such Option
Settlement Date;
(2) the opinions of Xxxxxx Xxxxxxx & Xxxxxxx LLP, Xxxxxxx
Xxxxxxxx & Kempe, and Xxxxx X. Xxxxxxxxxxxx as General Counsel to
Sea Containers, each in form reasonably satisfactory to your
counsel, dated such Option Settlement Date, relating to the
Option Shares to be purchased on such Option Settlement Date and
otherwise to the same effect as the opinions delivered pursuant
to subsections 5(b)(1), 5(b)(2) and 5(b)(3) hereof;
(3) the opinion of your counsel, dated such Option
Settlement Date, relating to the Option Shares to be purchased on
such Option Settlement Date and otherwise to the same effect as
the opinion delivered pursuant to subsection 5(b)(4) hereof; and
(4) a letter from Deloitte & Touche LLP, in form and
substance reasonably satisfactory to you and dated such Option
Settlement Date,
23
substantially in the same form and substance as the letter
furnished to you pursuant to paragraph 5(e) hereof, except that
the specified date in the letter furnished to you pursuant to
this paragraph (h) shall be a date not more than five days prior
to such Option Settlement Date.
Your obligation to purchase Shares pursuant to any Terms Agreement will
be subject to the further condition that there shall not have come to your
attention any facts that would cause you to believe that the Prospectus, at the
time it was required to be delivered to a purchaser of the Shares, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at such time, not misleading.
If any condition specified in this Section 5 will not have been
fulfilled, this Agreement and any Terms Agreement may be terminated by you by
notice to Sea Containers at any time at or prior to the applicable Settlement
Date, and such termination shall be without liability of any party to any other
party except that the covenant set forth in paragraph 3(g) hereof, the
provisions of Section 4 hereof, the indemnity provisions of Section 7 hereof,
the contribution provisions of Section 8 hereof and the provisions of Sections
9, 10 and 13 hereof will remain in effect. For purposes of a Settlement Date
with respect to any Terms Agreement, the term "Prospectus" will refer to the
Prospectus last filed by Sea Containers under Rule 424(b) under the 1933 Act
prior to the execution of the applicable Terms Agreement.
SECTION 6. Additional Covenants of Sea Containers. Sea Containers
covenants and agrees as follows:
(a) Each execution and delivery of a Terms Agreement by Sea Containers
will be deemed to be (i) an affirmation that the representations and warranties
of Sea Containers contained in this Agreement and such Terms Agreement and in
any certificate theretofore delivered to you pursuant hereto are true and
correct at the time of such execution and delivery, and (ii) an undertaking that
such representations and warranties will be true and correct at the applicable
Settlement Date, as though made at and as of such Settlement Date (and it is
understood that such representations and warranties shall relate to the
Registration Statements and the Prospectus as amended and supplemented to each
such time).
(b) Each time that Sea Containers (1) amends or supplements the
Registration Statements or the Prospectus by filing with the Commission an
annual report pursuant to Section 13 or 15(d) of the 1934 Act, or (2) otherwise
amends the Registration Statements or the Prospectus (other than by providing
solely for a change in the plan of distribution or sales price or similar
changes, and other than by filing with the Commission any document (other than
an annual report) incorporated by reference into the Prospectus), Sea Containers
will furnish or cause to be furnished to you forthwith (i) a certificate, in
form reasonably satisfactory to you, to the effect that the statements contained
in the certificate referred to in paragraph 5(c) hereof which was last furnished
to you are true and correct at the time of filing such amendment or supplement,
as the case may be, as though made at and as of such time (except that such
statements will be deemed to relate to the Registration Statements and the
Prospectus as amended and supplemented to such time) or (ii) in lieu of such
certificate a certificate of the same tenor as the certificate referred to in
paragraph 5(c), modified as necessary to relate to the
24
Registration Statements and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Each time that Sea Containers (1) amends or supplements the
Registration Statements or the Prospectus by filing with the Commission an
annual report pursuant to Section 13 or 15(d) of the 1934 Act, or (2) otherwise
amends the Registration Statement or the Prospectus (other than an amendment or
supplement providing solely for a change in the plan of distribution or sales
price or similar changes, and other than by filing with the Commission any
document (other than an annual report) incorporated by reference into the
Prospectus), Sea Containers will cause to be furnished forthwith to you and your
counsel (i) a written opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP or other United
States counsel reasonably satisfactory to you, (ii) a written opinion of Xxxxxxx
Xxxxxxxx & Xxxxx or other Bermuda counsel reasonably satisfactory to you, and
(iii) the written opinion of Sea Containers' General Counsel or other counsel
reasonably satisfactory to you, in each case dated the date of delivery of such
opinion, in form reasonably satisfactory to you, of the same tenor as the
opinions to be delivered by such counsel pursuant to subsections 5(b)(1),
5(b)(2) and 5(b)(3) hereof, respectively, but modified, as necessary, to relate
to the Registration Statements and the Prospectus as amended and supplemented to
the time of delivery of such opinions or, in lieu of such opinions, counsel last
furnishing such an opinion to you may furnish you with a letter to the effect
that you may rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements in such
last opinion will, subject to the last sentence of Section 5 hereof, be deemed
to relate to the Registration Statements and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(d) Each time that Sea Containers (1) amends or supplements the
Registration Statements or the Prospectus by filing with the Commission an
annual or quarterly report pursuant to Section 13 or 15(d) of the 1934 Act, or
(2) otherwise amends the Registration Statement or the Prospectus (other than an
amendment or supplement providing solely for a change in the plan of
distribution or sales price or similar changes, and other than by filing with
the Commission any document (other than an annual report) incorporated by
reference into the Prospectus), Sea Containers shall cause Deloitte & Touche LLP
forthwith to furnish you a letter, dated the date of filing of such annual
report or other amendment or supplement with the Commission, in form
satisfactory to you, of the same tenor as the portions of the letter referred to
in clauses (1) and (2) of paragraph 5(d) hereof but modified to relate to the
Registration Statements and Prospectus, as amended and supplemented to the date
of such letter, and of the same general tenor as the portions of the letter
referred to in clauses (3) and (4) of said paragraph 5(d) with such changes as
may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of Sea Containers; provided that
if the Registration Statements or the Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal quarter, Deloitte
& Touche LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of such a
nature that, in your reasonable judgment, such letter should cover such other
information.
(e) Each time that Sea Containers amends or supplements the Registration
Statements or the Prospectus by filing with the Commission a quarterly report
pursuant to Section 13 or 15(d) of the 1934 Act, Sea Containers will cause to be
furnished forthwith to you and your
25
counsel a written Rule 10b-5 certification of Xxxxxx Xxxxxxx & Xxxxxxx LLP or
other United States counsel reasonably satisfactory to you, dated the date of
delivery of such opinion, substantially in the form set forth in the last
paragraph of Section 5(b)(1) of this Agreement but modified, as necessary, to
relate to the Registration Statements and the Prospectus as amended and
supplemented to the time of delivery of such certification.
SECTION 7. Indemnification.
(a) Sea Containers agrees to indemnify and hold harmless you and each
person, if any, who controls you within the meaning of Section 15 of the 1933
Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statements (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission if such settlement is effected with
the written consent of Sea Containers;
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened and to which you are a party, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subsection (1) or (2) above; and
(4) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any failure by Sea
Containers to comply with its obligation to deliver Shares to any
purchaser hereunder or pursuant to any Terms Agreement (such indemnity
for failure to deliver Shares to be provided to the same extent that
indemnity is provided in subsections (1)-(3) above with respect to untrue
statements and omissions);
provided, however, that (A) this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to Sea Containers by
you expressly for use in the Registration Statements (or any amendment thereto)
or any preliminary Prospectus
26
supplement or the Prospectus (or any amendment or supplement thereto); and (B)
this indemnity, as to any preliminary Prospectus supplement will not inure to
your benefit (or any person controlling you) on account of any loss, claim,
damage, liability or litigation arising from the sale of Shares to any person by
you if you failed to send or give a copy of any subsequen Prospectus or
Prospectus supplement to such person within the time required by the 1933 Act,
and the untrue statemen or alleged untrue statement or omission or alleged
omission of a material fact in such preliminary Prospectu supplemen was
corrected in the subsequent Prospectus or Prospectu supplement unless such
failure resulted from noncompliance by Sea Containers with paragrap 3(f)
hereof.
(b) You agree to indemnify and hold harmless Sea Containers, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls Sea Containers within the meaning of Section 15 of
the 1933 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsections (a)(1)-(3) of this Section
7, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to Sea Containers by
you expressly for use in the Registration Statements (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto), as described in
paragraph (a) above.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the indemnified party
must, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the claim or
the commencement of that action; provided that the failure to notify the
indemnifying party will not relieve it from any liability which it may have
under this Section 7 except to the extent it has been materially prejudiced by
such failure; and provided further that the failure to notify the indemnifying
party will not relieve it from any liability which it may have to an indemnified
party otherwise than under this Section 7. If any such claim or action is
brought against an indemnified party and it notifies the indemnifying party
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it wishes, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party will not be liable to the indemnified party under
this Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided that the indemnified party will have the right
to employ one counsel in each jurisdiction to represent jointly the indemnified
party and its respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
indemnified party under this Section 7 if, in the reasonable judgment of the
indemnified party, it is advisable for the indemnified party and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel will be paid by the indemnifying
party. An indemnifying party will not, without the prior written consent of the
indemnified parties (which consent will not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be
27
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnified party will
not, without the prior written consent of the indemnifying party (which consent
shall not be unreasonably withheld), settle or compromise any such action, but
if settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
SECTION 8. Contribution. If the indemnification provided for in Section
7 is for any reason unavailable to or insufficient to hold harmless an
indemnified party under Section 7 in respect to any loss, liability, claim,
damage or expense, or any action in respect thereof, referred to therein, then
each indemnifying party will, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, liability, claim, damage or expense, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by Sea Containers and you from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of Sea Containers
and you with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by
Sea Containers and you with respect to such offering will be deemed to be in the
same proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by Sea
Containers, on the one hand, and the total brokerage and underwriting discounts
and commissions received by you with respect to the Shares purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the offering
of the Shares under this Agreement. The relative fault will be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by Sea Containers or you, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Sea Containers and you agree that it would not be just
and equitable if contributions pursuant to this Section 8 were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, liability, claim,
damage or expense or action in respect thereof, referred to above in this
Section 8 will be deemed to include, for purposes of this Section 8, any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, you will not be required to contribute any amount
in excess of the amount by which the total price at which the Shares distributed
by you hereunder was offered to the public exceeds the amount of any damages
which you have otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of section 11(f) of the 0000
Xxx) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
28
SECTION 9. Representations and Indemnities to Survive Delivery. Except
as otherwise specified herein, the respective indemnities, agreements,
representations, warranties and other statements of Sea Containers, its officers
or subsidiaries, and you set forth in or made pursuant to this Agreement or any
Terms Agreement entered into in connection herewith will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of you or Sea Containers or any of your or its
officers, directors or controlling persons and will survive delivery of and
payment for the Shares, from time to time.
SECTION 10. Your Status as Agent. In selling the Shares for Sea
Containers, you are acting solely as agent for Sea Containers and not as
principal, except as otherwise provided in Section 2(b) hereof. When acting
solely as agent, you will make reasonable efforts to assist Sea Containers in
obtaining performance by each purchaser whose offer to purchase Shares from Sea
Containers has been accepted on behalf of Sea Containers, but you will not have
any liability to Sea Containers if any such purchase is not consummated for any
reason.
SECTION 11. Termination. This Agreement may be terminated for any reason
at any time by any party hereto by giving five days' written notice of such
termination to the other parties hereto. You may also terminate this Agreement
and any existing Terms Agreement immediately (i) if there has been, since the
respective dates as of which information is given in the Registration Statements
and the Prospectus, any Material Adverse Change, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets or any outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in your reasonable judgment, impracticable
or inadvisable to market the Shares, or (iii) if trading in any securities of
Sea Containers has been suspended by the Commission or a national securities
exchange, or if trading generally on either the New York Stock Exchange or the
Nasdaq Stock Market has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal, New York or United Kingdom authorities, or (iv) a material disruption
has occurred in commercial banking or securities settlement or clearance
services in the United States, or (v) a stop order suspending the effectiveness
of the Registration Statements or an order preventing or suspending the use of
the Prospectus shall have been entered and shall not have been lifted or
removed, or (vi) any event shall have occurred as a result of which the
Prospectus would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein in the
light of the circumstances under which they are made not misleading, and Sea
Containers will not have complied with Section 3(b) of this Agreement. In the
event of any such termination, a party hereto will not have any liability to the
other parties hereto (including any obligation of yours to complete a purchase
of Shares as principal or to complete a sale as agent hereunder), except that
(i) you will be entitled to any commissions earned in accordance with the third
paragraph of paragraph 2(a) hereof, (ii) if at the time of termination, (A) you
own any of the Shares with the intention of reselling them or (B) an offer to
purchase any of the Shares has been accepted on behalf of Sea Containers but the
time of delivery to the purchaser or its agent of the Shares relating thereto
has not occurred, the covenants set forth in Sections 3 and 6 hereof and the
conditions in Section 5 hereof will remain in effect until such Shares are so
resold or delivered, as the case may be, and (iii) the covenant set forth in
paragraph 3(g) hereof, the provisions of Section 4 hereof, the indemnity
29
provisions of Section 7 hereof, the contribution provisions of Section 8 hereof
and the provisions of Sections 9, 10 and 13 hereof will remain in effect.
SECTION 12. Notices. All notices and other communications hereunder will
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to you shall be
directed to General Counsel, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention General Counsel (fax (000) 000-0000). Notices to Sea Containers shall
be directed to it at 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00, Xxxxxxx, attention of
the Secretary (fax (000) 000-0000), with copies to Sea Containers America Inc.,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx X.
Xxxxxx, Xx., Esq. (fax (000) 000-0000); to Sea Containers Services Ltd., Sea
Containers House, 00 Xxxxx Xxxxxx, Xxxxxx XX 0 0XX, Xxxxxxx, attention of Xxxxx
X. Xxxxxxxxxxxx, Esq. (fax 000-00-000-000-0000); and to Xxxxxx X. Xxxxx, Esq.,
Xxxxxx Xxxxxxx & Xxxxxxx LLP, 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax (212)
000-0000).
SECTION 13. Parties. This Agreement and any Terms Agreement will inure
to the benefit of and be binding upon you and Sea Containers and your and its
respective successors. Nothing expressed or mentioned in this Agreement or any
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Section 7
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any Terms Agreement, or
any provision herein or therein contained. This Agreement and any Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Shares will be deemed to be a successor by reason
merely of such purchase.
SECTION 14. Governing Law. This Agreement and any Terms Agreement, and
the rights and obligations of the parties created hereby and thereby, are and
will be governed by the laws of the State of New York.
SECTION 15. Counterparts. This Agreement and any Terms Agreement may be
executed in one or more counterparts and, when a counterpart has been executed
by each party, all such counterparts taken together will constitute one and the
same agreement.
SECTION 16. Submission to Jurisdiction. Any legal action or proceeding
with respect to this Agreement and any Terms Agreement, the Shares or any
document related thereto may be brought in the courts of the State of New York
in the County of New York or the United States District Court for the Southern
District of New York and, by execution and delivery of this Agreement, Sea
Containers hereby accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts in any such legal
action or proceeding. The parties hereto hereby irrevocably waive trial by jury,
and Sea Containers hereby irrevocably waives any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to the bringing of any
such action or proceeding in such respective jurisdictions. Sea Containers
hereby irrevocably designates Sea Containers America Inc. and Corporation
Service Company as the designees,
30
appointees and agents of Sea Containers to receive, for and on behalf of Sea
Containers, service of process in such respective jurisdictions in any legal
action or proceeding with respect to this Agreement, any Terms Agreement, the
Shares or any document related thereto. It is understood that a copy of such
process served on either such agent will be promptly forwarded to Sea Containers
at its addresses set forth in Section 12, but the failure of Sea Containers to
receive such copy will not affect in any way the service of such process. In
addition to service on Sea Containers' process agent, Sea Containers further
irrevocably consents to the service of process of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to Sea Containers at its said
address, such service to become effective 10 days after such mailing. Nothing
herein will affect your right or the right of any holder of Shares to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against Sea Containers in any other jurisdiction.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to Sea Containers a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between you and Sea Containers in accordance with its terms.
Very truly yours,
SEA CONTAINERS LTD.
By:________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
By:____________________
Name:
Title:
32
EXHIBIT A
SEA CONTAINERS LTD.
(a Bermuda company)
2,000,000 Class A Common Shares
(par value $.01 each)
TERMS AGREEMENT
[Date]
Re: Sales Agreement dated November __, 2003
The undersigned agrees to purchase_______Shares on the following terms:
Initial Public Offering Price: $_________per Share
Discount:
Proceeds to Sea Containers Ltd.: $______ per Share
Settlement Date, Time and Place:
Exceptions, if any, to Section 3(j) of the Sales Agreement:
[The certificate referred to in Section 5(c) of the Sales Agreement, the
opinions referred to in Section 5(b) of the Sales Agreement and the accountants'
letter referred to in Section 5(e) of the Sales Agreement will be required.]
CITIGROUP GLOBAL MARKETS INC.
By:________________________
Name:
Title:
Accepted:
SEA CONTAINERS LTD.
By:________________________
Name:
Title:
EXHIBIT B
Administrative Procedures
SEA CONTAINERS LTD.
2,000,000 Class A Common Shares
(par value $.01 each)
2,000,000 shares (the "Shares") of the class A common shares, par value
$.01 each, of Sea Containers Ltd., a Bermuda company (the "Company"), are to be
offered on a continuing basis by the Company. Citigroup Global Markets Inc., as
agent (the "Agent"), has agreed to use its best efforts to sell the Shares
directly for Sea Containers, and may also purchase Shares, as principal, for
resale. The Shares are being sold pursuant to a Sales Agreement between Sea
Containers and the Agent dated November __, 2003 (the "Sales Agreement"). The
Shares have been registered under the Securities Act of 1933 with the Securities
and Exchange Commission (the "Commission").
Administrative procedures and specific terms of the offering are
explained below. Administrative responsibilities, document control and
record-keeping functions will be performed for the Company by Xxxx X. Xxxxxx,
Xx. and Xxxxx X. Xxxxxxxxxxxx.
Confirmation: At the close of business on each day on which Shares are
sold hereunder (a "trade date"), the Agent will issue a
confirmation for the day's transactions by fax or e-mail
to Xxxxx X. Xxxxxxxxxxxx at Sea Containers Services Ltd.,
London, England (fax 000-00-000-000-0000, e-mail
xxxxx.xxxxxxxxxxxx@xxxxxxxxxxxxx.xxx), with a copy to Xxxx
X. Xxxxxx, Xx. at Sea Containers America Inc. in New York
fax 000-0000000, e-mail xxxx.xxxxxx@xxxxxxxxxxxxx.xxx)
containing the following key details:
1. The number of Shares sold.
2. The prices at which the Shares were sold.
3. The commissions payable to the Agent by
Sea Containers.
4. Other applicable charges, such as transfer taxes.
5. The net proceeds payable to Sea Containers.
6. The date or dates of settlement.
Settlement Date: 3 business days after the trade date (the "settlement
date").
Denomination and
Registration: Single certificate representing total number of Shares to be
settled on a settlement date or credit to the Agent's
account at The Depository Trust Company of the total number
of Shares to be settled on the settlement date, unless other
instructions are given to Sea Containers by the Agent at
least 48 hours prior to the settlement date. All
certificates will be registered in the name of Cede & Co.
unless other instructions are given to Sea Containers by the
Agent at least 48 hours prior to the settlement date.
B-1
Details for
Settlement: On the day after a trade date, Sea Containers will authorize
EquiServe Trust Company N.A., as transfer agent, by fax or
e-mail to deliver certificate(s) or credit Shares to Agent's
Depository Trust Company account on the settlement date upon
telephonic, fax or e-mail authorization by Sea Containers on
such date. Sea Containers will indicate denominations of
certificate(s). On the settlement date, Agent will credit
the amount of net sales proceeds to the account of Sea
Containers with Agent or send New York Clearing House funds
in the amount of net sales proceeds (sales price less
commission and transfer taxes) by wire to ________________,
for the account of Sea Containers Ltd., Account No.
__________, ABA Code , Swift Code ______________. Upon
telephonic receipt of funds wire number, Sea Containers will
authorize EquiServe Trust Company N.A. by telephone, fax or
e-mail to release certificates to Agent.
Delivery of
Certificates: EquiServe Trust Company N.A. will call ____________of Agent
(telephone (212) ____) two days prior to settlement to
confirm delivery of certificate(s). EquiServe Trust Company
N.A. will release certificate(s) to Agent on telephonic
authorization by Sea Containers. Certificate(s) will be
delivered to ___________, NY, NY _________ or by other means
for the account of the Agent through The Depository Trust
Company, not later than 10:00 a.m., New York City time, on
the third business day after the trade date for the sale of
such Shares; provided that Sea Containers and the Agent may
agree that delivery of and payment for Shares sold in
particular transactions and/or payment of commissions in
respect thereof is to be made at such other times and places
and in such other manner as Sea Containers and the Agent may
determine
Fails: If on the settlement date the certificate(s) are ready for
delivery but Agent does not wire funds to Sea Containers or
credit net sales proceeds to Sea Containers' account with
Agent, Agent will pay interest to Sea Containers for each
day's delay at the federal funds rate.
Suspension of
Sales;
Amendment or Sea Containers will give Agent telephonic notice of
Supplement: suspension, amendment or supplement, confirmed by fax or
e-mail.
B-2
Delivery of Sea Containers will deliver to Agent such number of copies
Prospectus: of the Prospectus as the Agent may reasonably request. Sea
Containers will file seven current Prospectuses with the New
York Stock Exchange, or such other number as may be required
from time to time pursuant to Rule 153.
Payment of
Selling
Commissions and
Transfer Taxes: Commissions and taxes will be deducted from sales price paid
to Sea Containers.
B-3
