Exhibit 1(a)(2)
THE BEAR XXXXXXX COMPANIES INC.
U.S. $
_.__% GLOBAL NOTES DUE ____
UNDERWRITING AGREEMENT
XXXXX & OVERY
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
U.S. $
THE BEAR XXXXXXX COMPANIES INC.
_.__% GLOBAL NOTES DUE ____
UNDERWRITING AGREEMENT
To the several Underwriters named
in Schedule I hereto
c/o Bear, Xxxxxxx International Limited
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Dear Sirs:
The Bear Xxxxxxx Companies Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") the principal amount of U.S. $500,000,000 6.20%
Global Notes Due 2003 (the "DEBT SECURITIES") of the Company identified in
Schedule II attached hereto (the Debt Securities being also referred to herein
as the "SECURITIES").
Unless otherwise specified in Schedule II, the Debt Securities are to be issued
under an Indenture, dated as of May 31, 1991, as may be supplemented or amended
from time to time (the "INDENTURE"), between the Company and The Chase Manhattan
Bank (formerly known as Chemical Bank and successor by merger to Manufacturers
Hanover Trust Company), as Trustee (the "TRUSTEE"). The Securities are more
fully described in the Final Prospectus referred to below and in Schedule II
attached hereto.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, the several
Underwriters and their affiliates as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (b)
hereof.
(a) The Company meets the requirements for the use of Form S-3
under the U.S. Securities Act of 1933, as amended (the "1933
ACT"), and has prepared and filed with the U.S. Securities and
Exchange Commission (the "COMMISSION") pursuant to the 1933
Act, the U.S. Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT"), and the rules and regulations
promulgated by the Commission thereunder (the "REGULATIONS"),
a registration statement (the file number of which is set
forth in Schedule II hereto) on such Form, including a basic
prospectus, for registration under the 1933 Act of the
offering and sale of the Securities. The Company has filed one
or more amendments to such registration statement as may have
been required to be filed through the date hereof, and may
have used a Preliminary Final Prospectus, each of which, if
any, has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering
of the Securities is a Delayed Offering and, accordingly, it
is not necessary that any further information with respect to
the Securities and the offering thereof required by the 1933
Act and the rules thereunder to be included in the Final
Prospectus have been included in an amendment to such
registration statement prior to the Effective Date. The
Company will next file with the Commission pursuant to Rules
415 and 424(b)(2), (3) or (5) a final supplement to the form
of prospectus included in such registration statement relating
to the Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required
information with respect to the Securities and the offering
thereof and, except to the extent the Underwriters shall agree
in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus
and any Preliminary Final Prospectus) as the Company has
advised you in writing, prior to the Execution Time, will be
included or made therein.
(b) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term the "EFFECTIVE DATE"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or
become effective. "EXECUTION TIME" shall mean the date and
time that this Agreement is executed and delivered by the
parties hereto. "BASIC PROSPECTUS" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including any
Preliminary Final Prospectus. "PRELIMINARY FINAL PROSPECTUS"
shall mean any preliminary prospectus supplement (including
any information appendixed thereto) to the Basic Prospectus
which describes the Securities and the offering thereof and is
used prior to filing of the Final Prospectus. "FINAL
PROSPECTUS" shall mean the prospectus supplement relating to
the Securities (including any information appendixed thereto)
that is first filed pursuant to Rule 424(b) after the
Execution Time, together (unless the context requires
otherwise) with the Basic Prospectus; the Final Prospectus
will substantially comprise the listing
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particulars required in connection with the application for
listing of the Securities on the Official List of the London
Stock Exchange Limited (the "LONDON STOCK EXCHANGE") pursuant
to the U.K. Financial Services Xxx 0000 (the "FSA").
"REGISTRATION STATEMENT" shall mean the registration statement
referred to in paragraph (a) above, including all exhibits,
documents and financial statements incorporated by reference,
as amended at the Execution Time (or, if not effective at the
Execution Time, in the form which it shall become effective)
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Time (as such term is
hereinafter defined), shall also mean such registration
statement as so amended. "RULE 415", "RULE 424" and
"REGULATION S-K" refer to such rules or regulation under the
1933 Act. Any reference herein to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the U.S. Securities
Exchange Act of 1934, as amended (the "1934 ACT") on or before
the effective date of the Registration Statement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document
under the 1934 Act after the Effective Date of the
Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated
therein by reference. A "DELAYED OFFERING" shall mean an
offering of securities pursuant to Rule 415 which does not
commence promptly after the effective date of a registration
statement, with the result that only information required
pursuant to Rule 415 need be included in registration
statement at the effective date thereof with respect to the
securities so offered.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Final Prospectus and any amendment or
supplement thereto; and the Company is duly qualified as a
foreign corporation to transact such business, and is in good
standing, in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on the
operations, business or properties of the Company and its
subsidiaries considered as one enterprise (any such material
adverse effect being hereinafter referred to as a "MATERIAL
ADVERSE EFFECT").
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(d) The Company has the corporate power and authority to enter
into this underwriting agreement ("THIS AGREEMENT"), to
perform its obligations hereunder and under the Indenture and
to issue, sell and deliver the Securities. This Agreement has
been duly and validly authorized, executed and delivered by
the Company, is a valid and binding agreement of the Company
and is enforceable as to the Company in accordance with its
terms. The Indenture has been duly and validly authorized,
executed and delivered by the Company, is a valid and binding
agreement of the Company and is enforceable as to the Company
in accordance with its terms. The Indenture has been duly
qualified under the Trust Indenture Act.
(e) (i) On the Effective Date, and at all times subsequent
thereto to and including the Closing Time (as such
term is defined in Section 2), and during such longer
period as the Final Prospectus may be required to be
delivered in connection with sales by the
Underwriters or a dealer, and during such longer
period until any post effective amendment to the
Registration Statement shall become effective, the
Registration Statement (including any post-effective
amendment) and the Final Prospectus (as amended or as
supplemented if the Company shall have filed with the
Commission any amendment or supplement to the
Registration Statement or the Final Prospectus) will
contain all statements which are required to be
stated therein in accordance with the 1933 Act, the
1934 Act, the Trust Indenture Act and the
Regulations, will comply with the requirements of the
1933 Act, the 1934 Act, the Trust Indenture Act and
the Regulations, and will not contain any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein in the light
of the circumstances in which they were made not
misleading, and no event will have occurred which
should have been set forth in an amendment or
supplement to the Registration Statement or the Final
Prospectus which has not then been set forth in such
an amendment or supplement; and each Basic Prospectus
and each Preliminary Final Prospectus, as of the date
filed with the Commission, did not include 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 in light of
the circumstances in which they were made not
misleading; provided, however, that the Company makes
no representations and warranties as to information
contained in or omitted from (I) the Registration
Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus made in
reliance upon and in conformity with information
furnished to the Company in writing by any
Underwriter expressly for use in the Registration
Statement or such Basic Prospectus, any Preliminary
Final Prospectus, or the Final Prospectus, as set
forth in Section 6(b), and (II) the Statement of
Eligibility and Qualification on Form T-1 of the
Trustee
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under the Trust Indenture Act, except statements or
omissions in such Statement made in reliance upon
information furnished to the Trustee by or on behalf
of the Company for inclusion therein.
(ii) Without limiting the foregoing, on the date hereof,
and at all times subsequent thereto to and including
the Closing Time, and during such longer period as
the Final Prospectus may be required to be delivered
in connection with sales by the Underwriters or a
dealer, and during such longer period until any post
effective amendment to the Registration Statement
(comprising listing particulars or supplementary
listing particulars) shall become effective, the
Final Prospectus (together with the Basic Prospectus)
contains all material information with respect to the
Company and its subsidiaries and the Securities
(including all information which, according to the
particular nature of the Company and its subsidiaries
and the Securities, is necessary to enable investors
and their professional advisers to make an informed
assessment of the assets and liabilities, financial
position, profits and losses and prospects of the
Company and its subsidiaries and of the rights
attaching to the Securities), the statements of
intention, opinion, belief or expectation contained
therein are honestly and reasonably made or held and
such documents (once approved by the relevant stock
exchanges as listing particulars) will contain all
the information required by section 146 of the FSA
and otherwise comply with the listing rules made by
the London Stock Exchange under the FSA (the "LISTING
RULES") and the rules of The Stock Exchange of Hong
Kong Limited (the "HKSE").
(f) Neither the Commission nor the "blue sky" or securities
authority of any jurisdiction (whether in the United States,
the United Kingdom, Hong Kong or elsewhere) has issued an
order or administrative proceeding (a "STOP ORDER") suspending
(or the effect of which is to suspend or otherwise limit) the
effectiveness of the Registration Statement, preventing,
suspending or otherwise limiting the use of the Basic
Prospectus, any Preliminary Final Prospectus, the Final
Prospectus, the Registration Statement or any amendment or
supplement thereto, refusing to permit the effectiveness of
the Registration Statement, suspending the registration or
qualification of the Securities or suspending the
qualification of the Indenture, nor has any of such
authorities instituted or, to the knowledge of the Company,
threatened to institute any proceedings with respect to a Stop
Order in any jurisdiction (whether in the United States, the
United Kingdom, Hong Kong or elsewhere) in which the
Securities are to be sold, nor, with respect to accuracy at
the Closing Time, has there been any Stop Order issued or
proceedings with respect to a Stop Order instituted or, to the
knowledge of the Company, threatened on or after the effective
date of the Registration Statement in any jurisdiction.
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(g) The documents incorporated by reference in the Final
Prospectus and any amendment or supplement thereto (the
"INCORPORATED DOCUMENTS"), at the time they were or hereafter
are filed with the Commission, complied, or when so filed will
comply, in all material respects with the requirements of the
1933 Act, the 1934 Act or the Trust Indenture Act, as
applicable, and the rules and regulations thereunder and on
the Effective Date and through and including the Closing Time,
did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they are made, not
misleading.
(h) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as
otherwise stated therein or contemplated thereby, there has
been no material adverse change in, or any adverse development
which materially affects, the financial condition, results of
operations, business or properties of the Company and its
subsidiaries considered as one enterprise.
(i) Except for Bear, Xxxxxxx & Co. Inc. ("BEAR XXXXXXX") and Bear,
Xxxxxxx Securities Corp. ("BSSC"), no subsidiary of the
Company is a "significant subsidiary" as defined in Rule 405
of Regulation C of the Regulations. Each of Bear Xxxxxxx, BSSC
and the Material Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Final Prospectus and any amendment or supplement thereto and
is duly qualified as a foreign corporation to transact such
business, and is in good standing, in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a
Material Adverse Effect; and all of the issued and outstanding
capital stock of Bear Xxxxxxx, BSSC and the Material
Subsidiary has been duly authorized and validly issued and is
fully paid and nonassessable and was not issued in violation
of or subject to pre-emptive rights, and, except for
directors' qualifying shares, is owned directly or indirectly
by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or other defect of
title whatsoever. For the purposes of this Agreement,
"MATERIAL SUBSIDIARY" shall mean Bear, Xxxxxxx International
Limited.
(j) The Securities have been duly authorized (or will have been so
authorized prior to each issuance of Securities) and when the
Securities have been executed and authenticated in the manner
set forth in the Indenture and are issued and delivered
against payment therefor as provided in this Agreement, such
Securities will have been duly executed, (assuming due
authentication by the Trustee) authenticated, issued and
delivered, will constitute valid and legally
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binding obligations of the Company entitled to the benefits
provided by the Indenture, and will be enforceable as to the
Company in accordance with their terms. The Indenture
substantially complies with the 1933 Act, the Trust Indenture
Act and the Regulations, and the Indenture and the Securities
will conform to the descriptions thereof contained in the
Final Prospectus.
(k) The execution, delivery and performance of this Agreement, the
performance of the Indenture, the issuance, authentication,
and sale of the Securities and the consummation by the Company
of the transactions contemplated hereby and thereby do not, as
of the date hereof, and will not, as of the Closing Time, (A)
conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with
notice or a lapse of time, or both, would constitute a
default) or require consent under, or result in the creation
or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, the terms of any contract, agreement, indenture,
mortgage, loan agreement, note (including the Securities when
issued), lease or other instrument, franchise, license or
permit to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or
their respective properties or assets may be bound or subject
and that is material to the Company and its subsidiaries
considered as one enterprise, or (B) violate or conflict with
any provision of the certificate of incorporation or by-laws
of the Company or any of its subsidiaries, or any law,
judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body
or any arbitrator having jurisdiction over the Company or any
of its subsidiaries, or any of their respective properties or
assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any of
its subsidiaries, or any of their respective properties or
assets, is required for the execution, delivery and
performance of this Agreement, or the performance of the
Indenture and the consummation of the transactions
contemplated hereby and thereby, including the issuance,
authentication, sale and delivery of the Securities, except
for (1) such as may be required under state and foreign
securities or "blue sky" laws in connection with the purchase
and distribution of the Securities by the Underwriters and (2)
such as have been made or obtained or will be made or obtained
before the Closing Time under the 1933 Act and the Trust
Indenture Act.
(l) There are no holders of securities of the Company or any
subsidiary who, pursuant to any agreement, understanding or
otherwise, have any right to have securities of the Company or
any subsidiary registered under the 1933 Act in connection
with the offering contemplated by the Final Prospectus.
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(m) Deloitte & Touche LLP, the accountants who certified the
financial statements included or incorporated by reference in
the Company's most recent Annual Report on Form 10-K which is
included or incorporated by reference in the Final Prospectus,
were independent public accountants at the time such
statements were certified and during the periods covered by
such statements as required by the 1933 Act and the
Regulations.
(n) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and the Final Prospectus, and any
amendment or supplement thereto, present fairly the
consolidated financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the
consolidated results of their operation for the periods
specified; and said financial statements have been prepared in
conformity with generally accepted accounting principles in
the United States (except to the extent that certain footnote
disclosures regarding any stub period may have been omitted in
accordance with the 1934 Act and the Regulations thereunder)
applied on a consistent basis.
(o) Except as may be set forth in the Final Prospectus, there is
no action, suit or proceeding before or by any court or
governmental agency or body or arbitrator, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company, Bear Xxxxxxx,
BSSC or the Material Subsidiary which is required to be
disclosed in the Registration Statement or the Final
Prospectus or would have a Material Adverse Effect or would
otherwise be expected materially and adversely to affect the
consummation of the transactions contemplated hereby or by the
Indenture; and there are no contracts or documents of the
Company, Bear Xxxxxxx, BSSC or the Material Subsidiary which
are required to be filed as exhibits to, disclosed in or
summarized in the Registration Statement or the Final
Prospectus by the 1933 Act, the Regulations, the FSA, the
Listing Rules or the listing rules of the HKSE, which have not
been (or which will not be, as the case may be) so filed,
disclosed or summarized.
(p) The Company, Bear Xxxxxxx, BSSC and the Material Subsidiary
possess such certificates, authorities or permits issued by
the appropriate state, federal or national regulatory agencies
or bodies in the United States, the United Kingdom, Hong Kong
and elsewhere necessary to conduct the business now operated
by them, except where the failure to obtain such certificates,
authorities or permits, individually or in the aggregate,
would not have a Material Adverse Effect. Neither the Company,
Bear Xxxxxxx, BSSC nor any other Material Subsidiary has
received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and
adversely affect the financial condition, results of
8
operations, business or properties of the Company and its
subsidiaries considered as one enterprise.
2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
On the basis of the representations, warranties, covenants, and
agreements of the Company herein contained, but subject to the terms
and conditions herein set forth, the Company agrees to sell to the
several Underwriters, and the Underwriters, severally and not jointly,
agree to purchase from the Company, at the purchase price set forth in
Schedule II attached hereto, the principal amount of Securities set
forth opposite such Underwriter's name in Schedule I hereto; provided,
however, that the Company shall have no obligation to sell any of the
Underwriters' Securities unless the Underwriters purchase all of the
Underwriters' Securities. Securities to be purchased by the
Underwriters are herein sometimes called the "UNDERWRITERS'
SECURITIES."
Except as otherwise provided in this Section 2, payment of the purchase
price for, and delivery of, the Underwriters' Securities to be
purchased by the Underwriters as set forth on Schedule I attached
hereto shall be made at the offices of Bear Xxxxxxx or at such other
place in the New York City metropolitan area as you shall determine and
advise the Company in writing at least two business days prior to the
Closing Time, on the date and at the time specified in Schedule II
attached hereto (unless postponed in accordance with the provisions of
Section 8), or such other time and date as shall be agreed upon by you
and the Company (such time and date being referred to as the "CLOSING
TIME"). Payment shall be made to the Company by wire transfer of
federal funds payable to the account of the Company specified by it
against delivery to you of the Underwriters' Securities to be purchased
by you. Such Securities shall be represented by one or more global
certificates (in the form provided in the Indenture) which will be
deposited with a custodian for, and registered in the name of Cede &
Co. ("CEDE") as nominee of, The Depository Trust Company; beneficial
interests in such global certificates will be shown on the records
maintained by Depository Trust Company for the accounts of its
participants, including the U.S. depositaries of Xxxxxx Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear
System ("EUROCLEAR") and Cedel Bank, societe anonyme ("CEDEL BANK").
3. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the several Underwriters and
their affiliates as follows:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution
Time, to become effective as promptly as possible. The Company
will notify you immediately, and confirm such notice in
writing, (i) when the Registration Statement (including any
amendments thereto) becomes effective, (ii) of any request by
the Commission for any amendment of or supplement to the
Registration Statement or the Final Prospectus or for any
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additional information, (iii) of the issuance by the
Commission of a Stop Order suspending (or the effect of which
is to suspend or otherwise limit) the effectiveness of the
Registration Statement (including any post-effective amendment
thereto) or of the initiation, or the threatening, of any
proceedings therefor, (iv) of the receipt of any comments from
the Commission and (v) of the receipt by the Company of any
notification with respect to the suspension or limitation of
the qualification of the Securities for sale in any
jurisdiction (whether in the United States, the United
Kingdom, Hong Kong or elsewhere) or the initiation, or
threatening, of any proceeding for that purpose. If the
Commission or other authority shall propose or enter a Stop
Order at any time, the Company will make every reasonable
effort to prevent the issuance of any such Stop Order and, if
issued, to obtain the withdrawal of such Stop Order as soon as
possible. The Company will not file any amendment to the
Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus before or after the Effective Date unless the
Company has furnished you with a copy for your review prior to
filing and will not file any such proposed amendment or
supplement to which you reasonably object.
(b) During the time when a prospectus relating to the Securities
is required to be delivered hereunder or under the 1933 Act or
the Regulations, the Company will comply with all requirements
imposed upon it by the 1933 Act and the Trust Indenture Act,
as now existing and as hereafter amended, and by the
Regulations, as from time to time in force, so far as
necessary to permit the continuance of sales of, or dealing
in, the Securities in accordance with the provisions thereof
and the Final Prospectus. If, at any time when a prospectus
relating to the Securities is required to be delivered under
the 1933 Act, any event shall have occurred as a result of
which, in the judgment of the Company, you or your counsel,
the Final Prospectus as then amended or supplemented includes
a statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be
necessary at any time to amend or supplement the Final
Prospectus or Registration Statement to comply with the 1933
Act, the Trust Indenture Act or the Regulations, or if there
shall occur any material change affecting any of the
representations and warranties in Section 1, the Company will
notify you promptly and prepare and file with the Commission,
the London Stock Exchange, the HKSE and all other applicable
bodies an appropriate amendment or supplement (in form and
substance satisfactory to you) which will correct such
statement or omission and will use its best efforts to have
any amendment to the Registration Statement declared effective
as soon as possible and will deliver to the several
Underwriters, without charge, such number of copies thereof as
may be reasonably requested by the Underwriters; provided that
the Company will promptly notify you if such judgment has been
reached by it.
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(c) (i) The Company shall, if it has not already done so,
make an application for the Securities to be listed
on the London Stock Exchange and the HKSE. In
connection with such applications the Company shall
use its best efforts to obtain such listings as
promptly as practicable and the Company shall furnish
any and all documents, instruments, information and
undertakings that may be necessary or advisable in
order to obtain or maintain the listings.
(ii) The Company confirms it will use its best efforts to
ensure that the Final Prospectus together with any
requisite supplemental document will be approved by
the London Stock Exchange and the HKSE as listing
particulars and shall ensure that such documents are
delivered to the Registrar of Companies in England
and Wales for registration.
(iii) Without limiting the provisions of (b) above, if
after the preparation of the documents referred to in
(ii) above for submission to the London Stock
Exchange and before the commencement of dealings in
the Securities following their admission to the
Official List:
(a) there is a significant change affecting any
matter contained therein whose inclusion was
required by section 146 of the FSA or by the
Listing Rules or by the London Stock
Exchange; or
(b) a significant new matter arises the
inclusion of information in respect of which
would have been so required if it had arisen
when such documents were prepared,
the Company shall give to the Global Coordinator (as
defined in Schedule I hereto), on behalf of the
Underwriters, full information about the change or
matter and shall publish supplementary listing
particulars (in a form approved by the Global
Coordinator) as may be required by the London Stock
Exchange, and shall otherwise comply with sections
147 and 149 of the FSA and the Listing Rules in that
regard.
(iv) The Company shall comply with rules 37.34 and
37.28(2) of the listing rules of the HKSE and other
applicable rules in respect of the Securities and
shall supply to the HKSE any supplementary listing
particulars prepared.
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(v) If the Securities cease to be listed or are not
listed on the London Stock Exchange or the HKSE, the
Company shall use its best efforts promptly to list
the Securities on another stock exchange to be agreed
between the Company and the Global Coordinator on
behalf of the Underwriters.
(d) The Company will promptly deliver to you a copy of the
Registration Statement, including exhibits and all amendments
thereto, and the Company will promptly deliver without charge
to you such number of copies of the Basic Prospectus, any
Preliminary Final Prospectus, the Final Prospectus, the
Registration Statement, and all amendments of and supplements
to such documents (including any listing particulars and
supplementary listing particulars), if any, as may be
reasonably requested by the Underwriters.
(e) The Company will endeavour in good faith, in co-operation with
you, timely to qualify the Securities for offering and sale
under the securities and other applicable laws of such
jurisdictions as you may designate and to maintain such
qualification in effect for so long as required for the
distribution thereof; provided that in no event shall the
Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take
action which would subject it to general service of process in
any jurisdiction where it is not now so subject or to conduct
its business in a manner in which it is not currently so
conducting its business.
(f) The Company will make generally available (within the meaning
of Section 11(a) of the 1933 Act and Rule 158 of the
Regulations) to its security holders and to you as soon as
practicable an earnings statement which need not be audited
but which shall satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 of the Regulations.
(g) The Company, during the period when the Final Prospectus is
required to be delivered under the 1933 Act, will file
promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
(h) During the period of one year after the date hereof, the
Company will furnish to you (i) as soon as publicly available,
a copy of each Annual Report on Form 10-K, Quarterly Report on
Form 10-Q, Current Report on Form 8-K, annual report to
stockholders and definitive proxy statement of the Company
filed with the Commission under the 1934 Act or mailed to
stockholders and (ii) from time to time, such other
information concerning the Company as you may reasonably
request.
(i) The Company will apply the proceeds from the sale of the
Securities as set forth under the caption "Use of Proceeds" in
the Final Prospectus.
12
(j) Prior to the Closing Time, the Company shall furnish to you,
as soon as they have been prepared, copies of any unaudited
interim consolidated financial statements of the Company and
its subsidiaries, for any period subsequent to the period
covered by the financial statements appearing or incorporated
by reference in the Registration Statement and the Final
Prospectus.
(k) The Company will comply with all provisions of all
undertakings contained in the Registration Statement.
(l) The Company consents to the use of the Final Prospectus or any
amendment or supplement thereto by you and by all dealers to
whom the Securities may be sold, both in connection with the
offering or sale of the Securities and for such period of time
thereafter as the Final Prospectus is required by law to be
delivered in connection therewith.
4. PAYMENT OF EXPENSES.
Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company hereby
covenants and agrees with the several Underwriters that the Company
will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection
with the registration of the Securities under the 1933 Act, the listing
of the Securities on the London Stock Exchange and the HKSE and all
other expenses in connection with the preparation, printing and filing
of the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus, the Final Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) all costs and expenses related to the
issuance, authentication, transfer and delivery of the Securities to
the Underwriters, including any transfer or other taxes payable
thereon; (iii) the cost of printing or producing this Agreement, the
Indenture, any Blue Sky and legal investment memoranda and any other
documents in connection with the offering, purchase, sale and delivery
of the Securities; (iv) all expenses in connection with the
qualification of the Securities for offering and sale under state
securities laws or the securities or other applicable laws of any other
country as provided in Section 3(e) hereof, including the fees and
disbursements of counsel for the Underwriters (including, where
necessary, local counsel) in connection with such qualification and in
connection with the Blue Sky and legal investment memoranda; (v) any
fees charged by securities rating agencies for rating the Securities,
if the Securities are so rated; (vi) any filing fees incident to any
required reviews by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Securities; (vii) the
costs and expenses of any qualified independent underwriter which may
be required by the rules and regulations of the NASD; (viii) all costs
and expenses incidental to listing the Securities on the New York Stock
Exchange, Inc. ("NYSE") or other U.S. national securities exchange (if
applicable), the London Stock Exchange and the HKSE; (ix) the cost of
preparing certificates for the Securities and the cost and charges of
The Depository Trust Company and its nominee for acting as
13
depository for the Securities and otherwise effecting any book entry
ownership system for the Securities (including the cost and charges of
Euroclear and Cedel Bank); (x) the cost and charges of the Trustee, any
transfer agent, calculation agent, registrar, paying agent or
disbursing agent; (xi) advertising and travel costs and expenses
incurred in connection with any roadshows; and (xii) all other costs
and expenses incident to the performance of the Company's obligations
hereunder which are not otherwise specifically provided for in this
Section subject to a cap, in respect of (i) to (iv), (vi) to (viii) and
(xi) to (xii), of U.S.$260,000. It is understood, however, that, except
as provided in this Section and in Sections 6 and 7 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on the resale of any of the
Securities by and advertising expenses connected with any offers they
may make.
If this Agreement is entered into and the purchase of Securities by the
Underwriters pursuant to this Agreement is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5
hereof is not satisfied, because of any termination pursuant to Section
10 hereof or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by the Underwriters,
the Company will reimburse the Underwriters severally upon demand for
all out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with
the proposed purchase and sale of the Securities.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the several Underwriters to purchase and pay for the
Securities, as provided herein, shall be subject to the continuing
accuracy of the representations and warranties of the Company, herein
contained, as of the date hereof and at the Closing Time, to the
absence from any certificates, opinions, written statements or letters
furnished to you pursuant to this Section 5 or to Xxxxx & Xxxxx
("UNDERWRITERS' COUNSEL") pursuant to this Section 5 of any
misstatement or omission, to the performance by the Company of its
obligations hereunder in all material respects and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, the Registration Statement shall have
become effective not later than 6:00 p.m., New York City time,
on the date of this Agreement or such later date and time as
shall be consented to in writing by you, and, if filing of the
Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the
time period required by Rule 424(b).
14
(b) At the Closing Time (i) no Stop Order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued under the 1933 Act or other
applicable law, and no proceeding under the 1933 Act or the
1934 Act therefor shall have been initiated or threatened by
the Commission, or, with respect to the filing of any Form 8-A
under the 1934 Act, by any U.S. national securities exchange;
and all requests for additional information on the part of the
Commission shall have been complied with or such requests
shall have been otherwise satisfied; (ii) the rating assigned
by any U.S. nationally recognised securities rating agency to
any debt securities, preferred stock or other obligations of
the Company as of the date of this Agreement shall not have
been lowered since the execution of this Agreement and no such
agency shall have publicly announced since the execution of
this Agreement that it has under surveillance or review, with
possible negative implications, its rating of any of the debt
securities or preferred stock of the Company; and (iii) since
the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, except as
otherwise stated therein or contemplated thereby, there shall
not have been any material adverse change in, or any adverse
development which materially affects, the financial condition,
results of operations, business or properties of the Company
and its subsidiaries considered as one enterprise, the effect
of which is in your reasonable judgment so material and
adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on
the terms and in the manner contemplated in the Final
Prospectus.
(c) The Company having made application for the Securities to be
admitted to the Official List of the London Stock Exchange.
(d) The Company having made application to list the Securities on
the HKSE.
(e) At the Closing Time, you shall have received the opinion of
Weil, Gotshal & Xxxxxx LLP, counsel for the Company, dated the
date of delivery, substantially in the form set forth in
Schedule III hereto, addressed to the Underwriters and in form
and scope reasonably satisfactory to Underwriters' Counsel.
(f) At the Closing Time, you shall have received the opinion of
Xxxx X. Xxxxxx, Esq., Executive Vice President of the Company
and Senior Managing Director of the Company's Legal &
Compliance Department, dated the date of delivery,
substantially in the form set forth in Schedule IV hereto,
addressed to the Underwriters and in form and scope reasonably
satisfactory to Underwriters' Counsel.
(g) At the Closing Time, you shall have received a certificate of
the Chief Financial Officer or the Controller of the Company,
dated the date of delivery, to the effect that the conditions
set forth in subsections (a) and (b) of this Section 5 have
been satisfied, that as of the date hereof and at the date of
delivery, the
15
representations and warranties of the Company set forth in
Section 1 hereof are accurate, and that at the date of
delivery, the obligations of the Company to be performed
hereunder on or prior thereto have been duly performed in all
material respects.
(h) At each of the Execution Time and the Closing Time, you shall
have received a letter (which may be an update or "bringdown"
letter) from Deloitte & Touche LLP, independent public
accountants for the Company and its subsidiaries, dated the
date of delivery, substantially in the form set forth in
Schedule V hereto, addressed to the Underwriters and in form
and scope reasonably satisfactory to you.
(i) The Underwriters shall have received from Underwriters'
Counsel an opinion, dated the Closing Time, with respect to
the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus and any amendments or
supplement to the Registration Statement or Final Prospectus
and such other related manners, as you may reasonably require,
and the Company shall have furnished to Underwriters' Counsel
such documents as they request for the purposes of enabling
them to pass upon such matters.
(j) All proceedings taken in connection with the sale of the
Securities as contemplated herein shall be satisfactory in
form and scope to you and to Underwriters' Counsel, and prior
to the Closing Time, the Company shall have furnished to you
such further information, certificates and documents as you
may reasonably request.
(k) The NASD, upon review of the terms of the public offering of
the Securities, shall have no objections to the fairness of
the underwriting terms and arrangements of the offering.
(l) The resolutions required by Section 3.1 of the Indenture
relating to the Securities shall have been adopted by the
Board of Directors of the Company or an authorized committee
thereof.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you
or to Underwriters' Counsel pursuant to this Section 5 shall not be in
all material respects reasonably satisfactory in form and scope to you
and to Underwriters' Counsel, all your obligations hereunder may be
cancelled by you at, or at any time prior to, the Closing Time. Notice
of such cancellation shall be given to the Company in writing, or by
telephone, telex or telecopy, confirmed in writing.
16
6. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each
Underwriter, their affiliates (if any) and each person, if
any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all losses, liabilities, claims, damages and
out-of-pocket expenses whatsoever (including but not limited
to attorneys' fees and any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatening, or any claim
whatsoever, and any and all amounts paid in settlement of any
claim or litigation), to which you or any such person may
become subject under the 1933 Act, the 1934 Act, the FSA or
otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement (other than that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification on Form T-1 of the Trustee under
the Trust Indenture Act, except for statements or omissions in
such Registration Statement made in reliance upon information
furnished to the Trustee by or on behalf of the Company for
inclusion therein), or any related Basic Prospectus,
Preliminary Final Prospectus or Final Prospectus, or in any
supplement thereto or amendment thereof, or arise out of or
are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, in light of the circumstances under which
they were made) not misleading or (ii) any breach or alleged
breach of any representation, warranty, covenant or agreement
of the Company contained in this Agreement; provided, however,
that the Company will not be liable to any Underwriter or any
person so controlling such Underwriter in any such case to the
extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon (x)
any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the
Company by or on behalf of any Underwriter through you
expressly for use therein, such written information being as
set forth in the penultimate sentence of subsection (b) below
or (y) any failure of such Underwriter to deliver the Final
Prospectus to a purchaser of Securities as required by
applicable law. This indemnity agreement will be in addition
to any liability which the Company may otherwise have,
including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of its
directors, each of its officers who shall have signed the
Registration Statement, and each other person, if any, who
controls the Company within the meaning of Section 15 of the
1933 Act or Section 20(a) of the 1934 Act, against any losses,
liabilities, claims, damages and out-of-
17
pocket expenses whatsoever (including but not limited to
attorneys' fees and any and all out-of-pocket expenses
whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), to which they or any
of them may become subject under the 1933 Act, the 1934 Act,
the FSA or otherwise, insofar as such losses, liabilities,
claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the
Registration Statement, or any related Basic Prospectus,
Preliminary Final Prospectus or Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, in light of the circumstances under which
they were made) not misleading, in each case to the extent,
but only to the extent, that any such loss, liability, claim,
damage or expense arises out of or is based upon any such
untrue statement or alleged true statement or omission or
alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company
by or on behalf of such Underwriter through you expressly for
use therein. For all purposes of this Agreement, the amounts
of the selling concession and reallowance set forth under the
heading "UNDERWRITING" in the Final Prospectus constitute the
only information furnished in writing by or on behalf of any
Underwriter expressly for inclusion in any Basic Prospectus or
Preliminary Final Prospectus, the Final Prospectus or the
Registration Statement (as from time to time amended or
supplemented), or any amendment or supplement thereto. This
indemnity will be in addition to any liability which any
Underwriter may otherwise have, including under this
Agreement; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess
of the underwriting discounts and commissions received by such
Underwriter.
(c) Promptly after receipt by an indemnified party under section
(a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve
it from any liability which it may have under this Section 6
except to the extent that it has been prejudiced in any
material respect by such failure or from any liability which
it may have otherwise). In case any such action is brought
against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent it may
elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party.
18
Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or
parties, unless (i) the employment of such counsel shall have
been authorized in writing by one of the indemnifying parties
in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to have
charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are
different from or additional to those available to one or all
of the indemnifying parties (in which case the indemnifying
parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties, it being
understood, however, that the indemnifying party shall not, in
connection with any one such claim, action or proceeding or
separate but substantially similar or related claims, actions
or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm (together
with appropriate local counsel) at any time for the
indemnified party or parties, which firm shall be designated
in writing by the indemnified party or parties, unless such
indemnifying party or parties shall have reasonably concluded
that there may be defenses available to it or them which are
different from or additional to those available to one or all
of the other indemnified party or parties (in which case the
indemnifying party shall be liable for the fees and expenses
of only one additional separate firm (together with
appropriate local counsel) for such indemnified party or
parties at any time)), in any of which events such fees and
expenses shall be borne by the indemnifying parties. Anything
in this Section 6 to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent;
provided, however, that such consent was not reasonably
withheld.
7. CONTRIBUTION
In order to provide for contribution in circumstances in which the
indemnification provided for in Section 6 hereof is for any reason held
to be unavailable from the Company or is insufficient to hold harmless
a party indemnified thereunder, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages, liabilities and
out-of-pocket expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and
expenses suffered by the Company, any contribution received by the
Company from persons, other than the Underwriters, who may also be
liable for contribution, including persons who control the Company
within the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 Act, officers of the Company who
19
signed the Registration Statement and directors of the Company) to
which the Company and one or more of the Underwriters may be subject,
in such proportions as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or, if such allocation is not
permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided
in Section 6 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative
fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company bear to the underwriting
discounts and commissions received by the Underwriters, respectively,
in each case as set forth in the table on the cover page of the Final
Prospectus. The relative fault of the Company on the one hand and of
the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this Section 7, (i) in no case
shall any Underwriter be liable or responsible for any amount in excess
of the underwriting discounts applicable to the Securities purchased by
such Underwriter hereunder, and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each
person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act shall have
the same rights to contribution as such Underwriter, and each person,
if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20(a) of the 1934 Act, each officer of the
Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to clauses (i) and (ii) of the
preceding sentence of this Section 7. Any party entitled to
contribution will, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties
under this Section, notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 7 or
otherwise. No party shall be liable for contribution with respect to
any action or
20
claim settle without its consent; provided, however, that such consent
was not unreasonably withheld.
8. DEFAULT BY AN UNDERWRITER, SELLING RESTRICTIONS AND OTHER UNDERWRITER
UNDERTAKINGS
(a) If any Underwriter or Underwriters shall default, at the
Closing Time, in its or their obligation to purchase
Securities hereunder and if the principal amount of Securities
with respect to which such default relates does not (after
giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the
principal amount of Securities which all Underwriters have
agreed to purchase hereunder, then such principal amount of
Securities to which the default relates shall be purchased by
the non-defaulting Underwriters in proportion to their
respective commitments hereunder.
(b) If such default relates to more than 10% of the principal
amount of Securities, you may in your discretion arrange for
yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to
purchase such principal amount of Securities to which such
default relates on the terms contained herein. If within five
calendar days after such a default you do not arrange for the
purchase of such principal amount of Securities to which such
default relates as provided in this Section 8, this Agreement
shall thereupon terminate, without liability on the part of
the Company with respect thereto (except in each case as
provided in Sections 4, 6 and 7 hereof) or the several
Underwriters with respect thereto, but nothing in this
Agreement shall relieve a defaulting Underwriter or
Underwriters of its or their liability, if any, to the other
several Underwriters and the Company for damages occasioned by
its or their default hereunder.
(c) If the principal amount of Securities to which the default
relates is to be purchased by the non-defaulting Underwriters,
or is to be purchased by another party or parties as
aforesaid, you or the Company shall have the right to postpone
the Closing Time for a period, not exceeding five Business
Days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Final
Prospectus or in any other documents and arrangements, and the
Company agrees to file promptly any amendment or supplement to
the Registration Statement or the Final Prospectus which, in
the opinion of Underwriters' Counsel, may thereby be made
necessary or advisable. The term "UNDERWRITER" as used in this
Agreement shall include any party substituted under this
Section 8 with like effect as if it had originally been a
party to this Agreement with respect to such Securities; and
the term "BUSINESS DAY" as used in this Agreement shall mean a
day on which commercial banks and foreign exchange markets
settle payments in New York, London and Hong Kong.
21
(d) (i) Each Underwriter represents and agrees that:
(I) it has not offered or sold and will not
offer or sell any Securities to persons in
the United Kingdom, prior to the earlier of
the expiry of the period of six months from
the Closing Time and the admission of the
Securities to listing in accordance with
Part IV of the FSA, except to persons whose
ordinary activities involve them in
acquiring holding, managing or disposing of
investments (as principal or agent) for the
purposes of their businesses or otherwise in
circumstances which have not resulted and
will not result in an offer to the public in
the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995
or the FSA;
(II) it has complied and will comply with all
applicable provisions of the FSA with
respect to anything done by it in relation
to the Securities in, from or otherwise
involving the United Kingdom; and
(III) it has only issued or passed on and will
only issue or pass on in the United Kingdom
any document received by it in connection
with the issue of the Securities, other than
any document which consists of or any part
of listing particulars, supplementary
listing particulars or any other document
required or permitted to be published by the
Listing Rules, to a person who is of a kind
described in Article 11(3) of the Financial
Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 (as
amended) or is a person to whom the document
may otherwise lawfully be issued or passed
on.
(ii) Each Underwriter represents and agrees to and with
the Company that the Securities will be issued
outside France and, in connection with their initial
distribution, that such Underwriter and its
affiliates have not offered or sold, and will not
offer or sell, directly or indirectly, any Securities
to the public in France, and has not distributed, and
will not distribute or cause the Final Prospectus and
the Basic Prospectus or any other offering material
relating to such Securities to be distributed to the
public in France.
(iii) Each Underwriter represents and agrees to and with
the Company that such Underwriter and its affiliates
have not, directly or indirectly, offered or sold and
will not, directly or indirectly, offer or sell in
Germany the Securities, other than in accordance with
the provisions of the German Securities Sales
Prospectus Act of 13th December, 1990, as
22
amended, or any other laws applicable in Germany
governing the issue, offering and sale of securities.
(iv) Each Underwriter represents and agrees that:
(I) it has not offered or sold and will not
offer or sell in Hong Kong, by means of any
documents, any of the Securities other than
to persons whose ordinary business it is to
buy or sell shares or debentures (whether as
principal or agent) or in circumstances
which do not constitute an offer to the
public within the meaning of the Companies
Ordinance (Cap. 32) of Hong Kong; and
(II) unless it is a person permitted to do so
under the securities laws of Hong Kong, it
has not issued, or had in its possession and
will not issue, or have in its possession
for the purposes of issue, any
advertisement, invitation or document
relating to the Securities other than with
respect to Securities intended to be
disposed of to persons outside Hong Kong or
to be disposed of in Hong Kong only to
persons whose business involves the
acquisition, disposal, or holding of
securities, whether as principal or agent.
(v) No action (except in connection with the application
for approval of the Final Prospectus and the Basic
Prospectus together with any requisite supplementary
document as listing particulars by the London Stock
Exchange and (when appropriate) delivery of copies
thereof to the Registrar of Companies in England and
Wales) has been (or will be) taken in any
jurisdiction by the Company or any of the
Underwriters that would, or is intended to, permit a
public offer of the Securities or possession or
distribution of the Final Prospectus or the Basic
Prospectus in any country or jurisdiction (except the
United States) where, or in any circumstances in
which, any such action for that purpose is required.
Accordingly, each Underwriter undertakes that it will
not, directly or indirectly, offer or sell any
Securities or distribute or publish any offering
circular, prospectus, form of application,
advertisement or other document or information in any
country or jurisdiction except under circumstances
that will, to the best of its knowledge and belief,
result in compliance with any applicable securities
laws and regulations and all offers and sales of
Securities by the Underwriter will be made on the
same terms.
(vi) Without prejudice to the generality of (v), each
Underwriter agrees that it will obtain any consent,
approval or permission which is, to the best of its
knowledge and belief, required for the offer,
purchase or sale by
23
it of Securities under the laws and regulations in
force in any jurisdiction to which it is subject or
in which it makes such offers, purchases, sales or
deliveries and it will, to the best of its knowledge
and belief, comply with all such laws and
regulations.
(e) Each of the Underwriters listed on Schedule I attached hereto
confirms that the Master Agreement Among Underwriters dated
December 4, 1986 shall regulate the relationship among the
Underwriters in connection with the above issue as if Bear,
Xxxxxxx International Limited were named therein in lieu of
Bear, Xxxxxxx
& Co. Inc.
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS.
All representations, warranties, covenants and agreements of the
Underwriters and the Company contained in this Agreement, including the
representations and warranties contained in Section 1, the agreements
contained in Section 4, the indemnity agreements contained in Section 6
and the contribution agreements contained in Section 7, shall remain
operative and in full force and effect regardless of any investigation
made by or on behalf of any Underwriter or any controlling person
thereof or by or on behalf of the Company, any of its officers and
directors or any controlling person thereof, and shall survive delivery
of and payment for the Securities to and by the several Underwriters.
The representations contained in Section 1 and the agreements contained
in Sections 4, 6, 7, 9 and 13 hereof shall survive the termination of
this Agreement including pursuant to Section 10 hereof.
10. TERMINATION
(a) You shall have the right to terminate this Agreement at any
time prior to the Closing Time if, after the date hereof: (i)
any domestic or international event or act or occurrence has
materially disrupted, or in your opinion will in the immediate
future materially disrupt, the securities markets in the
United States, the United Kingdom or Hong Kong; (ii) a general
suspension of, or a general limitation on prices for, trading
in securities on the NYSE, the American Stock Exchange, the
HKSE, in the over-the-counter market or the London Stock
Exchange shall have occurred; (iii) a banking moratorium shall
have been declared either by Federal or New York State
authorities or the Bank of England; (iv) there shall have
occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial
markets of the United States, the United Kingdom or Hong Kong
or on the United States, the United Kingdom or Hong Kong is
such as to make it, in the judgment of the Underwriters,
impracticable to market the Securities; (v) any restriction
materially adversely affecting the distribution of the
Securities which was not in effect on the date hereof shall
have become effective; or (vi) there shall have been such
change in the market for the securities of the Company or
securities in general or in national or international
political, financial or
24
economic conditions or currency exchanges rates or exchange
controls as in your judgment makes it inadvisable to proceed
with the offering, sale and delivery of the Securities on the
terms contemplated by the Final Prospectus.
(b) Any notice of termination pursuant to this Section 10 shall be
by telephone, telex, or telecopy, confirmed in writing by
letter.
11. STABILIZATION
If the Global Coordinator, on behalf of the Underwriters, in connection
with the distribution of the Securities or in order to facilitate the
offering of the Securities offers Securities in excess of the aggregate
principal amount to be issued or effects transactions with a view to
stabilizing, maintaining or otherwise affecting the market price of the
Securities at levels other than those which might otherwise prevail in
the open market, it shall not in doing so be deemed to act as an agent
of the Company. The Company will not as a result of any action taken by
the Global Coordinator, on behalf of the Underwriters, under this
Section be obliged to issue Securities in excess of the aggregate
amount of Securities to be issued under this Agreement, nor shall the
Company be liable for any loss, or entitled to any profit, arising from
any excess offers or stabilization.
12. NOTICE
All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing and, if sent to you, shall be
mailed, delivered, or telexed or telecopied and confirmed in writing,
to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Corporate Finance Department; and if sent to
the Company, shall be mailed, delivered, or telexed or telecopied and
confirmed in writing to the Company, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Chief Financial Officer.
13. PARTIES
This Agreement shall inure solely to the benefit of, and shall be
binding upon, the several Underwriters, the Company and the controlling
persons, directors, officers, employees and agents referred to in
Sections 6 and 7, and their respective successors and assigns, and no
other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "SUCCESSORS AND
ASSIGNS" shall not include a purchaser, in its capacity as such, of
Securities from any of the Underwriters. Notwithstanding anything
contained in this Agreement to the contrary, all of the obligations of
the Underwriters hereunder are several and not joint.
25
14. COUNTERPARTS
This Agreement may be executed by any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
15. CONSTRUCTION
This Agreement, in respect of which time shall be of the essence, shall
be construed in accordance with the laws of the State of New York
without regard to principles of conflicts of law.
If the foregoing correctly sets forth the understanding between you and the
Company please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
THE BEAR XXXXXXX COMPANIES INC.
By:
Accepted as of the date first
above written.
BEAR, XXXXXXX INTERNATIONAL LIMITED
By:
ABN AMRO Bank N.V.
Banque Paribas
Chase Manhattan International Limited
Citibank International plc
Dresdner Bank AG London Branch
Xxxxxx Brothers International (Europe)
Midland Bank plc
Xxxxxx Xxxxxxx & Co. International Limited
Nationsbanc Xxxxxxxxxx Securities LLC
Salomon Brothers International Limited
By:
26
NYFS04...:\25\22625\0339\2041\AGR4018W.540
SCHEDULE I
Principal Amount
of Securities
Underwriters to be Purchased
Bear, Xxxxxxx International Limited (the "GLOBAL 450,000,000
COORDINATOR")
ABN AMRO Bank N.V. 5,000,000
Banque Paribas 5,000,000
Chase Manhattan International Limited 5,000,000
Citibank International plc 5,000,000
Dresdner Bank AG London Branch 5,000,000
Xxxxxx Brothers International (Europe) 5,000,000
Midland Bank plc 5,000,000
Xxxxxx Xxxxxxx & Co. International Limited 5,000,000
Nationsbanc Xxxxxxxxxx Securities LLC 5,000,000
Salomon Brothers International Limited 5,000,000
Total U.S.$500,000,000
27
SCHEDULE II
Registration Statement: No. 333-43565
Debt Securities:
- Title, Purchase Price and Description of Securities
Title: 6.20% Global Notes Due 2003
Principal Amount: U.S.$500,000,000
Interest Rate: 6.20% Payable: March 30 and September 30
commencing September 30, 1998
Date of Maturity: March 30, 2003
Form of Debt Securities: Registered
Purchase Price: 99.978% of principal amount
Public Offering Price: 99.628% of principal amount
Sinking Fund Provisions: None
Redemption Provisions: None
Other Provisions: As described in the Final Prospectus
- Closing Date, Time and Location:
Date: March 30, 1998
Time: 10:00 a.m.
Location: Xxxxx & Xxxxx
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
- Whether Securities to be represented Global
by separate certificates rather than a
global certificate(s):
- Restrictions on Resale by Underwriters: As described in Section 8(d)
28
SCHEDULE III
1. Each of the Company, Bear, Xxxxxxx & Co. Inc. ("BEAR XXXXXXX") and Bear,
Xxxxxxx Securities Corp. ("BSSC") is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as
described in the Final Prospectus. Each of the Company, Bear Xxxxxxx and
BSSC is duly qualified to transact business and is in good standing as a
foreign corporation in the State of New York. All of the outstanding
shares of capital stock of Bear Xxxxxxx and BSSC is owned of record and,
to the best of our knowledge, beneficially by the Company and by Bear
Xxxxxxx, respectively, in each case free and clear, to the best of our
knowledge, of any lien, security interest or other encumbrance.
2. The execution, delivery and performance by the Company of the Indenture
and the consummation by the Company of the transactions contemplated
thereby have been duly authorized by all necessary corporate action on
the part of the Company. The Indenture has been duly and validly
executed and delivered by the Company and (assuming the due
authorization, execution and delivery thereof by the Trustee)
constitutes the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity).
3. The Company has all requisite corporate power to authorize, create and
issue the Securities, and the Securities, when duly executed by the
Company, authenticated by the Trustee pursuant to the terms of the
Indenture, and sold and delivered by the Company pursuant to the
Underwriting Agreement, will be duly authorized and legally issued and
will constitute binding obligations of the Company entitled to the
benefits of the Indenture in accordance with the terms of such
Securities, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity). The
statements in the Final Prospectus under the caption "Description of the
Debt Securities" insofar as they purport to summarize certain provisions
of documents significantly referred to therein, are accurate summaries
in all material respects of such provisions.
29
4. The Company has all requisite corporate power and authority to execute
and deliver the Underwriting Agreement and to perform its obligations
thereunder. The execution, delivery and performance by the Company of
the Underwriting Agreement and the consummation by the Company of the
transactions contemplated thereby have been duly authorized by all
necessary corporate action on the part of the Company. The Underwriting
Agreement has been duly and validly executed and delivered by the
Company and (assuming the due authorization, execution and delivery by
the other parties thereto), constitutes the legal, valid and binding
obligation of the Company, enforceable against it in accordance with its
terms, subject to the applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
except to the extent that rights to indemnification and contribution
thereunder may be limited by federal or state securities laws or public
policy relating thereto.
5. The execution of the Underwriting Agreement, the delivery of the
Underwriting Agreement and the Indenture, the consummation of the
transactions contemplated thereby and compliance by the Company with any
of the provisions thereof will not (i) conflict with or violate any of
the terms, conditions or provisions of the Certificate of Incorporation
or By-Laws of the Company, (ii) conflict with, or result in a breach of
any of the terms of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) or require
consent under, or result in the imposition of, any lien or encumbrance
upon any property or assets of the Company pursuant to the terms of, any
material document, agreement or other instrument of which we are aware
to which the Company is a party or by which it is bound, (iii) conflict
with or violate any New York, Delaware corporate or federal law or
regulation (other than federal and state securities or blue sky-laws, as
to which we express no opinion in this sentence), or (iv) conflict with
or violate any judgment, writ, injunction, decree, order or ruling of
any court or governmental authority binding on the Company of which we
are aware. No consent, approval, waiver, license or authorization or
other action by or filing with any New York, Delaware corporate or
federal governmental authority is required in connection with the
execution and delivery by the Company of the Underwriting Agreement and
the Indenture, or the consummation by the Company of the transactions
contemplated thereby except for those that (i) may be required by Rule
424(b) promulgated under the 1933 Act, (ii) may be required under state
securities or blue sky laws, as to which we express no opinion, or (iii)
have been made or obtained under the 1933 Act and the Trust Indenture
Act.
30
6. The Registration Statement, as of its effective date, and the Final
Prospectus, as of its issue date and as of the date hereof, complied and
comply as to form in all material respects with the requirements of the
1933 Act and the Trust Indenture Act and the rules and regulations
thereunder (except that no opinion is expressed herein with respect to
the financial statements and notes thereto, the financial statement
schedules and the other financial, statistical and accounting data
included or incorporated by reference therein or that should have been
included therein).
7. To the best of our knowledge, based upon telephonic confirmation from
the Commission, the Registration Statement was declared effective under
the 1933 Act and, to the best of our knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings therefor have been initiated or threatened by the
Commission. Any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b).
8. To the best of our knowledge, based upon telephonic confirmation from
the Commission, the Indenture has been qualified under the Trust
Indenture Act.
9. The section entitled "Certain United States Federal Income Tax
Considerations" in the Final Prospectus is and was at the date of its
issue correct in all material respects.
We have participated in conferences with directors, officers and other
representatives of the Company, representatives of the Underwriters and
representatives of Xxxxx & Overy, counsel for the Underwriters, at which
conferences the contents of the Registration Statement and the Final Prospectus
and related matters were discussed, and, although we have not independently
verified and are not passing upon and assume no responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement the Final Prospectus or the Incorporated Documents, no facts have come
to our attention that lead us to believe that the Registration Statement, on the
effective date thereof, 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 contained therein not misleading, or that the Final
Prospectus, on the date thereof or on the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading (it being understood that we express no view with respect to (i) the
financial statements and notes thereto, the financial statement schedules and
the other financial, statistical and accounting data included or incorporated by
reference in the Registration Statement or the Final Prospectus or (ii) Exhibit
25 to the Registration Statement).
31
SCHEDULE IV
To the best of my knowledge, there are no legal or governmental proceedings
pending or threatened that are required to be disclosed in the Registration
Statement, other than those disclosed therein, and there is no pending legal or
governmental proceeding to which the Company or any subsidiary of the Company is
a party or of which any of their property is the subject that is not described
in the Registration Statement, including ordinary routine litigation incidental
to the business, which, if adversely decided, will have a material adverse
effect upon the operations, business or assets of the Company and its
subsidiaries considered as one enterprise.
32
SCHEDULE V
1. They are independent public accountants with respect to the Company and
its subsidiaries within the meaning of the 1933 Act and the 1934 Act
(collectively, the "ACTS") and the applicable published rules and
regulations thereunder.
2. In their opinion, the consolidated financial statements and supporting
schedules of the Company, audited by them and incorporated by reference
in the Registration Statement and the Final Prospectus, comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1994 Act and the related published
rules and regulations.
3. They have performed certain specified procedures, not constituting an
audit, including a reading of the unaudited interim consolidated
financial statements of the Company incorporated by reference or
included in the Registration Statement and of the latest available
unaudited interim consolidated financial data of the Company; a reading
of the minutes of the meetings and consents of the stockholders, the
Board of Directors and the Executive Committee of the Board of Directors
of the Company and of each of the Significant Subsidiaries (as such term
is defined in Rule 405 of Regulation C of the Regulations) of the
Company since the end of the most recent fiscal year with respect to
which an audit report has been issued; inquiries of certain officials of
the Company and such Significant Subsidiaries who have responsibility
for financial and accounting matters with respect to the unaudited
consolidated financial statements incorporated by reference or included
in the Registration Statement and Final Prospectus and the latest
available unaudited interim consolidated financial data of the Company.
4. Nothing came to their attention as a result of the foregoing procedures
that caused them to believe that:
(a)(i) The unaudited consolidated financial statements
described in paragraph 3 above incorporated by
reference in the Registration Statement and the Final
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Acts and with the related published rules and
regulations and (ii) the unaudited consolidated
financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited consolidated financial statements; or
(b)(i) The unaudited consolidated financial statements
described in paragraph 3 are not stated on a basis
substantially consistent with that of the audited
consolidated financial statements, or (ii) as of a
specified date not more than five days prior to the
date of such letter and as of the date of the latest
available unaudited consolidated monthly financial
data of the Company, there was any change in the
capital stock or long-term indebtedness of the
Company and its subsidiaries or any decrease in the
stockholders' equity of the Company, in
33
each case as compared with the amounts shown on the
most recent unaudited consolidated statement of
financial condition of the Company included and
incorporated by reference in the Registration
Statement and Final Prospectus, or (iii) during the
period from the date of such statement of financial
condition to the date of the latest available
unaudited consolidated financial data of the Company,
there were any decreases, as compared with the
corresponding period in the preceding year, in
consolidated revenues, income before extraordinary
item, if any, and net income of the Company and its
subsidiaries, except in each such case for changes or
decreases set forth in or contemplated by the
Registration Statement and Final Prospectus or except
for such changes or decreases set forth in such
letter.
5. They have performed certain other specified procedures as a result of
which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth in
the Registration Statement and the Final Prospectus and in Exhibit 12
to the Registration Statement, including the information included or
incorporated in certain specified Items of the Company's Annual Report
on Form 10-K, incorporated in the Registration Statement and the
Prospectus, the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations" included
or incorporated in the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Final Prospectus,
and the information included in "Ratio of Earnings to Fixed Charges",
"Capitalization", "Selected Consolidated Financial Data" and the
consolidated financial statements of the Company for the years ended
June 30, 1997 and 1996 included in the Final Prospectus, agrees with
the accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation.
6. In addition to the examination referred to in their report included or
incorporated by reference in the Registration Statement and the Final
Prospectus, and the limited procedures referred to in paragraph 3
above, they have provided such additional information as the
Underwriters reasonably request with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and Final
Prospectus, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting records or
computations therefrom.
7. They consent to the inclusion in any Preliminary Final Prospectus and
the Final Prospectus of their report dated September 2, 1997 on the
consolidated financial statements of the Company for the year ended
June 30, 1997 appearing therein in the form and context in which it
appears.
They authorize the inclusion of their report for the purposes of
Section 152(1)(e) of the UK Financial Services Xxx 0000.
34
